Appeal from order of Court of Quarter Sessions of Philadelphia County, June T., 1967, No. 751, in case of Commonwealth of Pennsylvania v. Mattie Velma Payton.
Michael M. Baylson, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Melvin Dildine, Assistant Defender, with him Herman I. Pollock, Defender, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.
[ 212 Pa. Super. Page 256]
This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Philadelphia County suppressing evidence seized from the residence of Mattie Velma Payton, appellee.*fn1 The residence, 1726 West Oxford Street, Philadelphia, Pennsylvania, was searched on April 18, 1967 pursuant to a warrant, one copy book and 20 slips of paper containing approximately 3,185 plays being seized.*fn2
The sole issue raised on this appeal is whether the affidavit on which the search warrant was based established probable cause.
In passing on the validity of a search warrant we may consider only information brought to the magistrate's attention. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245 (1958). "It is fundamental that facts or circumstances must be presented to the magistrate under oath or affirmation from which he may make an independent and detached appraisal that probable cause for the search exists . . . ." Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 298, 235 A.2d 462, 464 (1967); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). In making such an appraisal, the affidavit must be read in a common sense and non-technical manner. Rose, supra; United States v. Ventresca, 380 U.S. 102 (1965).
The leading case of Aguilar v. Texas, supra, establishes the following two-pronged constitutional test to be used when assessing the validity of search warrants: "Although an affidavit may be based on hearsay information and need not reflect the direct personal observations
[ 212 Pa. Super. Page 257]
of the affiant . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that [the paraphernalia was] where he claimed [it was], and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was 'credible' or his information 'reliable'." (at 114)
In the instant case the warrant was based on the following: "Information has been received from a source which has resulted in numerous arrests and convictions in cases of this nature in the past that the above person is engaged in illegal numbers activities inside the above location by use of the telephone. Informant further states that he has personal knowledge of this due to the fact that he has called in bets to this person on the telephone. During the surveillance maintained on the above date no unusual traffic was observed, however, due to the nature of this activity numerous attempts were made to call the phone at this location between the hours of 10:30 A.M. and 1:00 P.M. with the result the phone was constantly busy. This, plus my information give me probable cause to request issuance of this warrant." This meets the requirements of Aguilar for the affiant has indicated the basis of his belief that the informant was reliable -- that he had provided information which had resulted in numerous arrests and convictions in similar cases in the past and the information was corroborated by the affiant's own investigation concerning the use of the phone by appellee. The warrant included the ...