Appeal, No. 321, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Jan. T., 1962,, nos. 2459, 2460, and 2461, in case of Commonwealth of Pennsylvania v. Joseph Griffin et al. Order reversed.
Arlen Specter, Assistant District Attorney, with him Louis F. McCabe, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Donald J. Goldberg, with him Garfield W. Levy, for appellees.
Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 36]
On this appeal the Commonwealth seeks to sustain the validity of a search warrant as issued (1) in proper form and content, and (2) on a showing of probable cause, under article I, section 8 of the Constitution of Pennsylvania, which provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant."
[ 200 Pa. Super. Page 37]
Having the search warrant in question, the police, on November 21, 1961, entered the apartment of Erma Tanner, a nurse employed at the Oncologic Hospital, Philadelphia, and seized a quantity of narcotics, syringes, and hypodermic needles. The defendant Joseph Griffin occupied the apartment with defendant Erma Tanner. Subsequently indictments were found against Griffin and Tanner charging possession of narcotics and possession of dangerous drugs. Defendants filed a petition to quash the search warrant and to suppress the evidence seized thereunder, alleging the warrant was insufficient on its face and was issued without probable cause. The district attorney filed an answer to defendants' petition. A hearing was held and testimony taken before Gold, P.J., on the rule to suppress. Judge Gold held that, although probable cause existed in this case, the affidavit of the search warrant was insufficient in failing to set forth on its face sufficient detailed facts to show probable cause. Accordingly, the court below granted defendants' petition to suppress the evidence. The Commonwealth appeals.*fn1
We are of the opinion that under the law of Pennsylvania the search warrant in this case was valid. The evidence taken on the petition and rule to suppress shows the following: Officer Raffaele testified that a fellow officer, whose wife was a nurse in the same hospital, received information that defendant Tanner was secreting drugs and removing them from the hospital to the apartment where she lived with defendant Joseph Griffin. Officer Raffaele testified that a Court: Q. And the informer was also a nurse? A.
[ 200 Pa. Super. Page 38]
Yes, sir. Q. And what information did you get about this Erma Tanner? A. She had stated that Erma Tanner was supposed to administer narcotics to the patients, sir, and that she had marked down that she was administering them, but the patients were complaining that they didn't get them, and from that she surmised that Erma Tanner was confiscating narcotics for her own use." On the question of what was presented to the magistrate by way of probable cause, Officer Raffaele further stated: "By Mr. Goldberg: Q. And you told the magistrate nothing else than what appears on that warrant other than the fact that you did check to see that it was Erma Tanner; is that right, sir? A. Yes, sir. By the Court: Q. Officer, did you tell him that drugs were missing from the hospital? A. Mu - Q. Did you tell that to the magistrate? A. My partner had related that to him. Q. What? A. My partner. Q. Were you both together at the time? A. Yes, sir. See, the woman that gave the information was my partner's wife. And he related it to him." The testimony in its entirety shows the magistrate was informed of sufficient basic facts to show probable cause. We do not agree with the conclusion of the court below that the magistrate issued the warrant without any evidence of probable cause beyond the wording of the affidavit as "Investigation and complaints received and investigations conducted."
Aside from any question of burden of proof on this issue, the Commonwealth clearly established probable cause for issuance of the search warrant in this case. The law on this point, under article I, section 8 of the Constitution of Pennsylvania is stated by Judge KELLER in Com. v. Schwartz, 82 Pa. Superior Ct. 369, 375: "The affiant is not restricted to violations of law within his own knowledge nor is he bound to set forth ...