Appeals from order of Court of Quarter Sessions of Philadelphia County, Jan. T., 1966, Nos. 381 and 382, in case of Commonwealth of Pennsylvania v. Silvio Copertino et al.
Michael M. Baylson, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Vincent C. Veldorale, for appellees.
Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Jacobs, J. Dissenting Opinion by Wright, J. Watkins, J., joins in this dissent.
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The Commonwealth appeals from the pretrial order of the Court of Quarter Sessions of Philadelphia County suppressing evidence obtained during a search of a two story row house at 7217 West Passyunk Avenue, Philadelphia. The Commonwealth will be substantially handicapped in the presentation of this case by the suppression of this evidence; thus its appeal at this time is proper. Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966).
On January 4, 1966 Officer Spaticini of the Philadelphia Police Department obtained a search warrant. The affidavit and warrant described the premises to be searched as "Passyunk Ave., 7217 W. -- 2 story dwelling
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with store front." and listed Marie Ipri, John Dubois, Alfred Battipaglia and Silvo Lerro in the section entitled "Name of owner, occupant of premises and/or person to be searched." In the same document probable cause was given as follows: "Information has been received from a reliable source that an illegal lottery operation is being conducted inside 7217 W. Passyunk Ave. and that action is taken by telephone and carry into this location. In connection with info. a surveillance was made on 12/23/65, 12/24/65 and 1/3/66 between the hours 11:00 A.M. and 5:00 P.M. at night during which time one Alfred Battipaglia was observed entering at 11:00 A.M. and leave at 5:00 P.M. Also observed entering this premises during these times was one Silvo Lerro who would enter at 2:45 P.M. and leave at about 5:00 P.M. Both these men are known vice figures and are known to operate number banks."
On January 6, 1966 Spaticini and two other police officers executed the search warrant. The search resulted in the seizure of extensive evidence pertaining to the operation of a lottery, and the arrest of the appellees in this case on charges of setting up a lottery and establishing a gambling place as prohibited by Sections 601 and 605 of The Penal Code of 1939 (18 P.S. § 4601 and § 4605).
In fact, there were two separate apartments in 7217 West Passyunk Avenue, one on the first floor, and one on the second. The evidence was seized in the first floor apartment and the appellees were found and arrested there, although neither appellee lived there.
The lower court held the warrant was invalid because no probable cause was shown authorizing a search of the whole building. We agree.
The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers and effects against ...