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COMMONWEALTH v. TIRPAK ET AL. (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
TIRPAK ET AL., APPELLANTS



Appeals from judgments of Court of Common Pleas of Washington County, Sept. T., 1967, Nos. 329, 332, 334, and 335, in cases of Commonwealth of Pennsylvania v. Lilly Jane Florida; Same v. George E. Tirpak; Same v. Harry T. Collins; and Same v. Samuel G. Heckel.

COUNSEL

Jerome Hahn, for appellant.

Sanford S. Finder, for appellant.

John W. Edwards, Jr., for appellant.

Walter W. Gregory, Jr., for appellant.

George E. Anthou, Assistant District Attorney, with him Jess D. Costa, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.

Author: Watkins

[ 216 Pa. Super. Page 311]

These are appeals from the judgments of the Court of Common Pleas of Washington County, by the defendant-appellants, Lilly Jane Florida, George E. Tirpak, Harry T. Collins, and Samuel G. Heckel, after conviction of possession of marijuana as proscribed by Section 4 of the Act of July 11, 1917, P.L. 758, as amended, 35 P.S. Section 780-4(q); and from the denial by the court below of post-trial motions.

The defendants were sentenced as follows: Collins to a term of three (3) to twenty-three (23) months in the County Prison; and Florida, Tirpak, and Heckel to terms of three (3) months each in the County Prison.

The defendants principally complain that the court below erred in refusing to suppress evidence obtained by the use of an alleged illegal search warrant: and further that even with the fruit of the invalid warrant there was insufficient evidence to support the verdict.

[ 216 Pa. Super. Page 312]

The transcript of the suppression hearing discloses that Officer Costanza of the Allegheny County Police received information that a "pot party" was being held at a certain address in Peters Township, Washington County. Costanza alerted the township police and Sergeant Fetty of the Peters Township Police was assigned to the case.

A surveillance of the property was established. The lights in the house were on and they watched people enter and leave the house and it was apparent that a party of some kind was going on. They went to the local magistrate to seek a search warrant. Together Costanza and Fetty related the results of the surveillance and Costanza related the information, in detail that he had received from what he considered a reliable confidential source. Although most of the information was given by Costanza, Fetty, the local officer, signed the affidavit.

The complaint of the defendants based on this technical ground of signing is without merit. "Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." U. S. v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). Commonwealth v. Burns, 215 Pa. Superior Ct. 333, 257 A.2d 74 (1969).

The defendants rely most strongly on Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Headnote 9, pp. 724-25, sets forth the problem:

"9. Although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concludes that contraband, such as ...


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