The opinion of the court was delivered by: WEINER
Defendant Samuel J. Delia has been indicted on two counts, for the illegal possession of a 20-gauge, double-barrelled, sawed-off shotgun, in violation of the Firearms Act, which makes it a crime to possess such a weapon which has neither been registered, 26 U.S.C. §§ 5851, 5841, nor taxed, 26 U.S.C. §§ 5851, 5821.
The gun in question was seized by the Philadelphia Police on January 27, 1967 while they were conducting a search of defendant's house pursuant to a search warrant alleging that "paraphernalia pertaining to illegal lottery, horses and numbers" were being kept in defendant's home at 2724 E. Somerset Street, Philadelphia, Pennsylvania. The police were admitted into petitioner's house after Mr. Delia was shown the warrant. After searching the building for the gambling paraphernalia enumerated in the warrant,
the police discovered the instant sawed-off shotgun.
Defendant has moved to suppress the evidence obtained during the search. He contends that the search warrant was unlawful for failure of the police to establish before the magistrate probable cause for its issuance. If petitioner is correct in his claim that no probable cause was established, then it must necessarily follow that the search warrant is without lawful foundation and that any evidence secured as a result of its use is inadmissible, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); accord, e.g., Burgett v. State of Texas, 389 U.S. 109, 114, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).
In light of the view we take of this motion, the issue of probable cause is dispositive of the case. For this reason we need address ourselves neither to petitioner's other contentions nor to the effect on either count of this indictment of Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968).
After reproducing Officer Brennan's affidavit in support of the search warrant he sought and obtained, we will discuss the four elements as constituting probable cause therefor.
At the application before the magistrate, Officer Brennan related the following, in haec verba, as evidencing sufficient probable cause for the issuance of the search warrant:
The four elements of this account relevant to the issue of probable cause may be categorized in the following manner.
Affiant Brennan's first ground for requesting the warrant is hearsay evidence obtained from a confidential informant. Such information may be sufficient to establish probable cause for the issuance of a search warrant, where the informant has previously proved reliable, Jones v. United States, 362 U.S. 257, 268-269, 271, 272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). In evaluating the reliability of the anonymous informant, as in passing on the persuasiveness of the other elements supporting probable cause, the magistrate must have before him information so probative and reliable that he may "perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police," Aguilar v. State of Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 1512, 12 L. Ed. 2d 723 (1964).
In the instant case, affiant properly qualified his anonymous informant as having been "previously reliable", supporting this conclusion with an indication of prior arrests and convictions obtained with the aid of this informant. Although informant himself was qualified, however, his personal observations of petitioner's activities fall short of providing a "substantial basis for him to conclude that [gambling paraphernalia] were probably present" in petitioner's house, contrary to the situation in Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).
The affidavit in this case alleged only that informant
was physicaly (sic) present when illegal lottery bets were transacted by the ...