*1
John Benjamin W. Assistant Public and Lerner, Defender, Philadelphia, for appellant.
Eric Henson, B. Assistant District and Em- Attorney, F. Fitzpatrick, Philadelphia, mett District for Attorney, Com- monwealth, appellee. JACOBS, WATKINS, Judge, President
Before PRICE, der HOFFMAN, CERCONE, VAN VOORT SPAETH, JJ. VOORT, Judge: der
VAN a judge trial before Stamps, after Robert appellant, of a possession convicted of jury, without sitting deliver a with intent to possession controlled substance judgment granted Arrest controlled substance. charge. delivery of error. raises claims On appeal, cause estab- claims there was no first Appellant warrant, pursuant issuance of search lished police. was searched apartment appellant’s which was insufficient to that the evidence His second argument sub- of a controlled possession his conviction for sustain *3 stance. 19, 1976, Philadelphia February
The record shows that on from received information an Victor police officer Mareone days ten the informant informant, within the preceding that of of ten bundles possession the in the appellant had seen his observation the The informant had made heroin. 47th 1211South Street apartment second floor at appellant’s that further stated The informant Philadelphia. be for eight heroin would sold him that the appellant told Roy. named person to a ($800.00) hundred dollars the appel- that he had observed related informant further occasion, his with apartment from lant, depart on another to at a bar. he intended sell of heroin which three bundles appel- Mareone of the also advised officer The informant number, registered found to be police which phone lant’s The infor- 47th Street address. at the South in the with information officer Mareone provided mant had ten arrests eight approximately which had led past of illicit goods. in confiscations resulting information, con- police this receiving of As a result February residence appellant’s a surveillance ducted date, sought Mareone same Officer 23, 1976. On the
Ill obtained a search warrant for the appellant’s apartment. warrant, for the application the following was set forth as cause:
I policeman 4334 having # received information from a reliable that informant 2-19-76 he was inside of the above location in past and did see the above named days person have in his possession 10 bundles of approximately heroin which alleged he stated one person coming named who was half Roy over in an hour to the stuff for buy This informant stated $800.00. that there were approximately five other persons this apartment and that he would not be sure who if to blame cops link out to this certain transaction. The informant also stated he on another seen the date (Brother Rob) above named called person leave apart- ment with three bundles of heroin on his possession and bar going to the to sell them to two different persons. This informant also stated that this person phone number is 3498533 any before the above customers come over they always call. This informant in past two years given has me information which has resulted in a number of arrests with evidence confiscated on all arrests. A with check phone company the number supplied me this informant was made and found it to be in the name the above living at above location. On 2-23-76 approximately from 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons entering were seen and having this location *4 after staying only time, a period short of of one the persons white being a male. Due to the information received from this reliable informant along phone with a check an a surveillance. I believe the above named person is and storing large selling quantities of heroin from inside apartment. of his In a search subsequent appellant’s apartment, on a couch bed, within two his feet of the officers found twenty-five packets heroin.
112 probable there was insufficient
Appellant contends that
of a warrant because the
cause
issuance
support
the
was too dated
issuing authority
the
provided
information
upon such
as
or
He
reliance
cases Common-
places
“stale.”
Simmons,
624,
(1973)
450
We must
infor
to the evaluation
approach
an
technical
overly
in
search warrant
magistrate
mation
supplied
Court stated in
Supreme
As
United
application.
States
102, 108,
741,
Ventresca, 380
United
U.S.
States
(1965):
113 entitled to great deference reviewing court because searches pursuant to warrants are and preferred to be encouraged. States, Spinelli 410, 419, v. United 393 U.S. 89 S.Ct. 21 (1969); L.Ed.2d States, 637 Jones v. United 257, 270-271, U.S. L.Ed.2d 697 case, the instant there was ample information to provide probable cause. a Using common sense as approach, we do, are required to we find that the magistrate was advised that a police reliable very informant stated that the appellant was a drug salesman. In the ten days prior to the affidavit, date of the the informant saw appellant, at his apartment, in the possession heroin, of ten bundles of was told these would be sold to another person for $800.00. occasion, On another appellant had seen de part from his apartment with a drugs to sell quantity two other people a bar. Especially noteworthy was the informant’s information that customers “always” telephoned before visited they purchase drugs. telephone num ber provided police, as magistrate, related to the assigned to the same individual who was the reputed sales men. Common sense would dictate the conclusion that the appellant salesman, was probably a heroin that his apart ment was business, drug site of his and that he recently had drugs stored there which he customers, sold to on a basis, continuing after telephone discussions with them. There was clearly probable cause established for the is suance of a search this case.
The appellant’s contention, second there was insufficient evidence of possession seized, his drugs totally Quite devoid of merit. simply, sizeable quantity drugs was located on a couch only feet from a mattress where the appellant slept. The apartment itself had a telephone registered to bill utility was found for the premises, bearing the appellant’s name. Appellant had his clothing apartment, arrested, after being appellant put on shoes and lying socks next to the mattress beside which the drugs were found. Appellant’s control of the premises, and his possession constructive of the drugs conviction. to sustain the there, clearly sufficient
found 69, 364 A.2d DeCampli, Pa.Super. See Commonwealth *6 cited therein. (1976), 454 and cases Affirmed. SPAETH, J.,
CERCONE, J.,
concurring opinion.
files a
WATKINS,
former President
dissenting opinion.
files a
in the consid-
HOFFMAN, J., did not participate
Judge,
of this case.
eration or decision
CERCONE,
concurring:
Judge,
the
by
as described
of the defendant
The transactions
conduct
de-
continuous course of
indicated a
informant
the warrant.
the issuance of
the time of
fendant
up
the search.
here to justify
evidence
There was sufficient
Simmons,
624,
SPAETH, dissenting: Judge, not warrant does search challenging unreliable; rather, he con- contend that for the application in the if all of the statements tends that not amount true, still do they warrant are taken as would believe that contraband cause to showing probable the warrant was the time that his residence at be found at this contention appraising applied rule to be issued. The 113-14, Shaw, 444 Pa. 110, v. in Commonwealth was stated said: Supreme where the Court 897, 899 281 A.2d to be of a search warrant the issuance In order must reach valid, issuing officer constitutionally time he issues exists at the cause conclusion that arbitrarily be made not may warrant. a decision Such related in closely which are on facts and must be based v. United Sgro is issued. the warrant time to the date (1932); L.Ed. 260 States, 287 206, 53 77 U.S. States, 1968); (9th 190 Cir. v. United 403 F.2d Durham
115
States,
Schoeneman United
115 U.S.App.D.C.
States,
Dandrea United
(1963);
F.2d
I policeman having received information from a # reliable informant 2-19-76 he inside of the above location in past did see above named days *7 person possession have in his approximately bundles of alleged heroin which he stated the informant was for one named person Roy coming who over in half an hour the stuff for buy This informant stated $800.00. there were five other this approximately persons in apartment that he would not and be sure who to if blame it link this cops out to certain transaction. The informant that he on also stated another date seen the (Brother above named called person Rob) apart leave this with ment bundles of heroin his possession three and going bar to sell them to different persons. two This phone informant also stated that this person number is 3498533 and that above any before customers over come call. This informant they always past has me has years given information which resulted in a number of arrests with evidence confiscated on all A with arrests. check of the phone company number this supplied me informant was made and found be in the living name of above at the above location. On 2-23-76 from 11:20 m. to a. approximately a. 11:50 m. a surveillance was conducted at the and above location two persons entering having were seen this location time, a staying only period after short one a white male. Due to the information being persons with a along phone from reliable informant received that the above named I believe check an a surveillance. of heroin quantities selling storing large is person his apartment. from inside of manner, in a common sense this statement reading Upon States, (1st 356 F.2d Cir. Rosencranz v. United 108-09, Ventresca, 380 1966); U.S. United States 741, 746, 13 says one will see that it L.Ed.2d more, which will be (it says something this much at least within the 10 moment): days pre Sometime discussed the time the warrant was (14 days by the statement ceding was in and saw issued), appellant’s apartment appellant appellant’s possession, 10 bundles of heroin sell these bundles to informant that he intended to told the other occasion the within half an hour. On some “Roy” three bundles of heroin and with appellant informant saw he intended to sell these bun told the informant issuing It plain dles to two men at a bar. activity of criminal could this as “evidence authority regard Shaw, It is supra. at some time.” Commonwealth however, that the statement “will not equally plain, as of the date the warrant cause finding also the criminal unless it shown that issue[d], [was] we question to or about that time.” Id. The up decide, therefore, Was it thus also shown? must is: *8 the second there was no statement of the date of
Since “[a]ny one the three selec- involving occasion—the bundles— would be too part clearly conjectural. tion of time on our So been the determination.” Common- magistrate’s must have 624, 630, 819, Simmons, 301 A.2d v. 450 Pa. wealth Therefore, cannot be said to the second occasion the warrant related in time to the date “closely have been 113, Shaw, 444 Pa. at issued,” supra, was Commonwealth In 899, regard establish cause. 281 A.2d at so as to ten past was “in the to the first occasion—the one that Novak, days” explained Commonwealth v. Pa.Su- —we 238-9, 335 A.2d per. that when the an assump- courts are forced to make [generally tion a given as when occurred “within” to transactions period, cause, purposes determining probable for it must be assumed that the transactions took the place part period. most 100 A.L.R.2d given remote See this 532. The reason for this obvious. If were policy not this informa- given phrase, the construction to stale tion be made current use of appear by could to the mere “within” language.
Therefore, “evidence of some prior criminal at activity time” only days amounts evidence one sale 14 before issued, other, other warrant of one sale at some unknown, Thus, have time. so far I been unable find any application evidence in the for the from which warrant was that activity up “shown criminal continued to or time Commonwealth [the issued].” [the] Shaw, supra. sales, addition to the two telling about
said any that “before of the above customers come over they always call.” this told to the informant (Presumably appellant.) Initially, might suggest seem warrant, up to the time of the but even after liberal it will reading, the most be seen this is not the case. The “they” refers to “above customers” and (This therefore and the two men bar. only “Roy” at the said; is the may most that be refer “they” may only not said Roy, it is that the men ever came to the All we are all apartment.) issuing told—and authority how when told—about often or these men “c[a]me over,” is on one occasion “in the one past days” them, did, and that Roy, occasion, at an undeter- another time, mined the other two did come over but did buy heroin in outside apartment. a bar The fact—as we transactions, assume it to be—that before either these buyer appellant adds so far as telephoned nothing showing *9 time war- activity up
that continued to the of the criminal for no “always” help, rant. information Nor does word word. supplied given which content be to the by any may How does it to? And when did incidents refer many prior will usage” sense these occur? The “common application may questions, by usage, “always” not answer these for such old, few, (“I hardly incidents. refer to very very do, work, but when I I call day always ever miss a explain why.”)
The the con- analysis by correctness is confirmed talking not that after duct of the did consider police. They that they probable to the informant had cause to believe continued; still by informant activity described did, it This they learn whether initiated surveillance. tip for is clear an informant’s good that practice, itself to establish cause become may insufficient observation. by independent sufficient when corroborated Monte, See Commonwealth v. 459 Pa. 329 A.2d however, warrant (1974). Here, application corrob- provide reveals that the surveillance too brief m., oration. from about 11:20 11:50 a. February On saw apartment building watched police appellant’s and, after “a short persons “entering” building identify not or describe leave. does period,” application these one was persons any way beyond saying that they separately “white male.” It does not whether came say how together.. long period” or It does not the “short say inside, hour, or, (Did finding was. an no one they stay half leave?) it does what important, say Most is meant they Did “entering” building. go appellant’s apart- ment, apartment? or to the third floor
Thus
inescapable
requirement
the conclusion is
Shaw,
supra,
Commonwealth
there be
evidence
time” the
up
“criminal
or
[the]
issued, was
An examination of other
not satisfied.
Bove,
Commonwealth
cases confirms this conclusion.
*10
221
293
Pa.Super. 345,
(1972),
A.2d 67
this court suppressed
the fruits of
alleged illegal activity
a warrant “based
an
[drug
that occurred more than one month
to the
sales]
warrant,
issuance of the
and where there was no evidence of
Id.,
in
illegal activity
Pa.Super.
the interim.”
221
352,
at
293
70.
although
A.2d at
This
so
the warrant
themselves,
in
alleged,
addition
the sales
that the defend-
ant
a
contraband in a safe in his
kept
supply of
bedroom and
parts
Novak,
other
house.
of his
In Commonwealth v.
233
236, 241,
773,
Pa.Super.
(1975),
court
A.2d
construed a statement
the informant had purchased
from
drugs
the defendant more than one dozen times within
months,
the last two
as information that was seven weeks
stale,
old,
particularly
and held the information to be
be-
cause it involved items “of such a nature that
would
they
disposed
be
likely
quickly
Finally,
of.”
in Commonwealth v.
444,
Hagen,
It will be observed from the cases that amount acceptable delay vary, will both with the nature of the contraband and with the nature the evidence of continued If criminal activity. contraband is of sort easily of, the disposed evidence of continued criminal activity may weaker, be and the amount of but delay longer; where easily of, contraband is disposed evidence of continued be stronger, must and the amount of delay Here, of, shorter. disposed contraband was easily there was no substantially evidence of continued criminal Thus, while the activity. delay amount of was somewhat cases, shorter than in some nevertheless unacceptably long. the evidence seized in the search
Accordingly,
pursuant
Ohio,
Mapp
the warrant was inadmissible.
367 U.S.
Submitted Decided Nov. 1978. Jr.,
George Drayer, B. Ditter Calvin S. Assistant Norristown, Defenders, Public for appellant.