Appeal from judgment of Court of Quarter Sessions of Berks County, June T., 1967, No. 94, in case of Commonwealth of Pennsylvania v. Stanley Swierczewski.
James M. Potter, for appellant.
Arthur Ed. Saylor, First Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Wright, P. J., and Watkins, J., would affirm the order of the court below.
[ 215 Pa. Super. Page 131]
At a jury trial in September 1967 appellant Stanley Swierczewski was convicted of establishing a gambling place, traffic in lottery tickets, bookmaking and being concerned in a lottery. Appellant was arrested in February 1967 following a search of his residence and seizure of evidence subsequently used at his trial. Appellant filed a timely motion to suppress the seized
[ 215 Pa. Super. Page 132]
evidence and for return of property which was dismissed by the court below.
The primary question presented is whether the affidavit in support of the search warrant used to seize the evidence at appellant's residence was sufficient for the magistrate to find probable cause for the issuance of the warrant. The pertinent portion of the affidavit provides: "That on information received from a confidential police informant, used in past & proven to be reliable, trustworthy citizen: County Detectives Office -- City Police Vice Squad & State Police, from observation by State Police -- City Police & County Detectives: from September 30, 1966 to February 27, 1967, and upon personal investigation by affiant conducted from Sept. 15, 1966 to February 27, 1967, the entire building and all dwellings . . . is being used for the purpose of concealing number plays, Horse Bets & Associated Gambling Paraphernalia . . . ."
This court has repeatedly held that a search warrant may not constitutionally issue upon an affidavit which fails to set forth substantiating facts and circumstances from which the magistrate might make an independent and detached appraisal of the probability that a crime had been or was being committed. Commonwealth v. Smyser, 205 Pa. Superior Ct. 599, 211 A.2d 59 (1965); Commonwealth v. Alvarez, 208 Pa. Superior Ct. 371, 222 A.2d 406 (1966); Commonwealth v. Bondi, 211 Pa. Superior Ct. 23, 234 A.2d 191 (1967).
The affidavit in the instant case fails to provide any facts upon which the issuing magistrate could make an independent determination. The affidavit makes no mention of the nature of the information received from the confidential informant or uncovered by police investigation. As Judge Jacobs stated in Commonwealth v. Alvarez, supra, 208 Pa. Superior Ct. at
[ 215 Pa. Super. Page 133374]
, "The sole basis for the magistrate's decision was the police officer's conclusions. Nothing was revealed to the magistrate concerning either the information received from the informer or the facts observed during the surveillance. Such a procedure, in which a magistrate accepts an affiant's ...