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COMMONWEALTH v. SMYSER (06/17/65)

decided: June 17, 1965.

COMMONWEALTH, APPELLANT,
v.
SMYSER



Appeals from order of Court of Quarter Sessions of Bucks County, Jan. T., 1964, No. 144, in case of Commonwealth of Pennsylvania v. Frances Smyser et al.

COUNSEL

Ward F. Clark, First Assistant District Attorney, with him William J. Carlin, District Attorney, for Commonwealth, appellant.

Frederick E. Smith, with him Ross, Smith & Renninger, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 205 Pa. Super. Page 600]

The Commonwealth appeals from the order of the Court of Quarter Sessions of Bucks County ordering that property and evidence obtained during a search

[ 205 Pa. Super. Page 601]

    of defendant Michele Reis' rented room on May 31, 1963, be excluded from evidence at any hearing or trial involving defendant Reis or the co-defendant Frances Smyser. Such an appeal is properly made at this time: Com. v. Bosurgi, 411 Pa. 56, 190 A.2d 304.

The goods in question include some peyote buttons (a dangerous drug under The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, 35 PS § 780-2(h)), a pipe stem and bowl, a vial containing traces of marijuana and marijuana seeds (narcotic drug, 35 PS § 780-2(g)), and a bottle of pills which the record indicates are probably harmless vitamin pills.

The court below found that the affidavit supporting the search warrant was deficient in several respects and therefore the warrant which was issued to the police on the basis of that affidavit was void. Moreover, the court held that even if the warrant had been properly issued and had been a valid document, the search was an unreasonable one within the standards of the Fourth Amendment to the Constitution of the United States and art. I, § 8 of the Pennsylvania Constitution. It held, therefore, that evidence obtained as a result of that search could not be used against the defendants in this case. The first aspect of the case, i.e., the sufficiency of the affidavit for a search warrant and consequently of the warrant issued to the police, determines this case.

The complaint sworn before a justice of the peace reads as follows: "Before me, the subscriber one of the Justices of the Peace in and for the County aforesaid, personally came Chief William D. Brooke of New Hope Borough Police, who upon his solemn oath according to law saith that on or about the 31st day of May, A.D. 1963, in the Borough of New Hope, County of Bucks aforesaid, that as a result of investigations the deponent verily believes that there is sufficient evidence to believe that a person or persons have or will

[ 205 Pa. Super. Page 602]

    conceal narcotics, dangerous drugs and paraphernalia pertaining to the use of narcotics on the premises of the apartments located at 82 South Main Street, New Hope, Pennsylvania, ...


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