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COMMONWEALTH v. BEATTY (03/19/70)

decided: March 19, 1970.

COMMONWEALTH, APPELLANT,
v.
BEATTY



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 928, in case of Commonwealth of Pennsylvania v. Joseph Beatty.

COUNSEL

James D. Crawford, Assistant District Attorney, with him Anne T. Welsh, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Francis S. Wright, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Hoffman, J., concurs in the result.

Author: Montgomery

[ 216 Pa. Super. Page 146]

This is an appeal by the Commonwealth from an order suppressing evidence in connection with an indictment charging burglary, larceny, and receiving stolen goods.

At the suppression hearing the following facts were adduced. On September 24, 1968, at 3:00 p.m., Officer Hansbury and a fellow officer were approached by an informant as they were stopped at the corner of Hicks and Ranstead Streets in Philadelphia, Pennsylvania. The informant was known to Officer Hansbury as a businessman at that location. Officer Hansbury testified he had known the informant for fifteen years and had on prior occasions received information from him that resulted in arrests and convictions. The informant pointed out defendant's car which was half a block away and told Officer Hansbury that defendant, known to both of them as "Country", was in the tailor shop trying to sell some watches that had been stolen in a burglary. Officer Hansbury testified that he knew defendant from prior experiences, that defendant was a known burglar and that he was not, to the officer's knowledge, engaged in the jewelry trade. The officer also testified that it was a high risk burglary area.

After receiving that information, Officer Hansbury approached defendant's car. As he did so, a man who had been sitting in the front seat of the car lay down on the seat, apparently trying to conceal himself. Through the open car windows Officer Hansbury saw a television set on the back seat. It was sticking out of a paper carry-all bag. As he began to question the man about the television set, defendant walked out of the tailor shop with several watches and a lady's ring in his hands. When asked about the television set, defendant gave a story that contradicted what the officer had already been told. At this time Officer Hansbury arrested the two men. Before taking them to the police

[ 216 Pa. Super. Page 147]

    station, he asked defendant what else he had in his car. Defendant opened the trunk, revealing a large number of men's suits, and Officer Hansbury told him to close it. Later that evening the trunk was searched and the suits seized pursuant to a warrant that is not contested by this appeal.

The lower court found that the information originally relayed to the police officers was not sufficiently reliable to support probable cause since the report came casually from a neighborhood businessman and was lacking in specificity as to how, when, and where the information was obtained. The lower court further found that the information subsequently obtained by the arresting officer did not corroborate the tip to the extent necessary to justify the arrest without a warrant.

The court relied upon Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), which held that the ". . . informer's report must first be measured against Aguilar's standards, [ Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)], so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should be considered." (Citation supplied) Spinelli at page 415. Spinelli also held that, if the tip is insufficient, then the court should be cautious in permitting surrounding circumstances to corroborate it.

Aguilar required that when processing a search or arrest warrant the issuing magistrate must be informed of sufficient facts so that he may make an independent judgment as to whether probable cause does or does not exist. While an affidavit may be based upon a hearsay report, the magistrate ...


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