Appeal from order of Superior Court, Oct. T., 1966, No. 411, affirming judgment of Court of Quarter Sessions of the Peace of Delaware County, Dec. T., 1964, Nos. 101 and 102, in case of Commonwealth of Pennsylvania v. Henderson Newman.
Arthur Levy, with him McClenachan, Blumberg & Levy, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this concurring opinion.
This is an appeal by Henderson Newman from the order of the Superior Court, affirming the judgment of sentence of the Court of Quarter Sessions of Delaware County.
Appellant was indicted on December 7, 1964, for the crimes of (1) traffic in lottery tickets; (2) setting up a gambling establishment; (3) procuring persons to gamble; (4) enticing persons to gamble, and (5) aiding
and assisting others to gamble. Appellant filed a petition to suppress evidence obtained by the detectives after their entry into his home. The petition was denied and the case went to trial. A demurrer was sustained as to all but the lottery count. On that count, the jury returned a verdict of guilty. After appellant's motions for a new trial and arrest of judgment were denied and sentence imposed, he appealed to the Superior Court. That court affirmed, with two judges dissenting. We granted allocatur.
The Commonwealth's evidence disclosed that on November 16, 1964, at about 11:30 a.m. four detectives went to appellant's home with a body warrant for appellant and a search warrant for the premises. The complaint for the search warrant recited that the affiant, Detective John MacCrory, deposed that there was probable cause to believe that certain books, papers, and other items used for the purpose of a lottery were in the possession of Henderson Newman at or near 721 West Mary Street. The complaint further recited that the affiant had received complaints and information from persons of reliable and good reputation which the affiant had reason to believe to be true and which were relied upon in making the affidavit. It was further recited that the affiant had been told that the subject premises was a numbers drop, that a surveillance had revealed a considerable amount of traffic going in and out of the house, and that it was believed that gambling activities were conducted in the house.
Appellant urges that the complaint fails to comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). That case held that although an affidavit for a search warrant may be based on hearsay information and need not reflect the direct personal observation of the affiant, the magistrate must nevertheless be informed of some of the underlying
circumstances on which the informant based his conclusions and some of the underlying circumstances from which the affiant concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. The question thus is whether the recital of police surveillance of traffic going in and out of the house supplies the requisite underlying circumstances to remove the vice of being conclusory from the instant complaint. We need not decide this ...