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COMMONWEALTH v. SOMERSHOE (09/11/69)

decided: September 11, 1969.

COMMONWEALTH, APPELLANT,
v.
SOMERSHOE



Appeals from order of Criminal Court of Bucks County, Nos. 863, 863-1, and 863-2 of 1967, in case of Commonwealth of Pennsylvania v. William Somershoe et al.

COUNSEL

John J. Collins, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellant.

David H. Kubert, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 215 Pa. Super. Page 248]

This is an appeal by the Commonwealth from an order of the Criminal Court of Bucks County sustaining an Application for Suppression of Evidence. The facts, as shown by the record, are as follows: On September 1, 1967, an informer telephoned the Bristol Township Police and spoke to Detective Richard Batezel. Approximately forty-five minutes after this phone call, a person appeared at the police station and identified himself to Detective Batezel as the informer who had called earlier. He told Batezel that he had been in the home of William Somershoe a few hours earlier and had seen in the kitchen "approximately a pound and a half of marijuana" and had been offered some for sale. The informer further stated that he had seen "a large quantity of drugs, capsules, pills which were various colors."

Based on these facts and knowledge that the informer had been involved with narcotics in the past, Detective Batezel prepared an affidavit for the purpose of obtaining a search warrant for Somershoe's home. The affidavit contained the following: "That he has information from an informant who stated that he had

[ 215 Pa. Super. Page 249]

    been at the home of Mr. Somershoe and had seen Somershoe with dangerous drugs of various kinds which he wanted to sell and also marijuana in a paper bag this date. Subject Wm. Somershoe also has been arrested in the last month for possession of dangerous drugs". In addition to the affidavit, Detective Batezel testified under oath before the Justice of the Peace for the purpose of supplementing the information contained in his affidavit. He testified that the narcotics referred to in his affidavit had been described to him by the informer. The detective in turn narrated the informer's description of the narcotics to the Justice of the Peace. Detective Batezel told the Justice that the informer was familiar with drugs and marijuana and knew them when he saw them because he had previously been involved in narcotic investigations and also that defendant Somershoe had been arrested earlier in the month for possession of dangerous drugs and had appeared before the same Justice of the Peace to whom the detective was presenting his testimony. Detective Batezel knew the informer was a user but the evidence does not show whether he gave this information to the Justice of the Peace.

On a Petition to suppress presented on behalf of the defendant, the lower court ordered that the items taken from Somershoe's home were inadmissible as evidence on the grounds that Detective Batezel's affidavit and testimony failed to set forth some of the underlying circumstances which were necessary to inform the Justice of the Peace of the Detective's conclusion that the informer was credible or his information reliable.

The test for determining the validity of a search warrant is that pronounced in the leading case of Aguilar v. Texas, 378 U.S. 108 (1964) and relied upon by this Court in Commonwealth v. Payton, 212 Pa. Superior Ct. 254 (1968), that an affidavit may be

[ 215 Pa. Super. Page 250]

    based on hearsay information and need not reflect the direct personal observations of the affiant provided the magistrate is informed of some of the underlying circumstances from which the informant concludes that the items in issue are where he claims they are and is further informed of underlying circumstances from which the officer concludes that the informant, whose identity need not be disclosed, is credible or his information reliable. Thus briefly in recapitulating, Aguilar sets forth two requirements which must be met in the affidavit before a search warrant can be properly issued: (1) the setting forth of underlying circumstances from which the informer concludes the items in ...


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