decided: June 11, 1970.
Appeal from order of Court of Common Pleas of Delaware County, March T., 1969, No. 598, in case of Commonwealth of Pennsylvania v. Horace Haynes.
Ralph B. D'Iorio, Assistant District Attorney, with him Vram Nedurian, Jr. and John R. Graham, Assistant District Attorneys, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.
Carmen P. Belefonte, with him Kassab, Cherry, Curran & Archbold, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
[ 218 Pa. Super. Page 14]
This is an appeal by the Commonwealth from the decision of the Court of Common Pleas of Delaware County suppressing evidence. The defendant-appellee, Horace Haynes, was arrested on November 19, 1968, charged with Traffic in Lottery Tickets, in violation of The Penal Code of 1939, P. L. 872, § 601 and § 602, 18 P.S. § 4601 and § 4602. The defendant filed a petition to suppress the evidence, namely numbers slips, obtained at the time of the arrest, on the ground that the search warrant was illegal. The court suppressed the evidence and the Commonwealth appealed.
The record indicates that three state troopers were sworn before the justice of the peace that issued the warrant. The complaints for the warrant were reduced to writing and signed by Sergeant McKenna after Trooper Kardash had testified, under oath, as to the particulars of their investigation which led to the request for the warrant.
The Affidavit reads as follows: "Tprs. Metro Kardash & James Palya received information (confidential) that a colored male was a pickup man for a numbers operation in the city of Chester, operating a Light Blue Dodge, who makes regular pickups in the area of Front & Concord St., Chester, Penna. This information was received from a confidential informant who
[ 218 Pa. Super. Page 15]
has given these officers information of this type in the past, which has proven true and correct, from which convictions have resulted."
It is now well established that sworn oral testimony may be considered along with the facts reduced to writing presented to the magistrate to justify a finding of probable cause. Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967), and Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966).
The following facts were presented to the justice of the peace in the testimony of the officer: the police had received information from an informant, not disclosed; the informant told them that a man in a Blue Dodge had taken over the numbers route which was vacated by a man named Saunders who had been arrested for numbers; as a result of this information, the police spotted the Blue Dodge, licensed IM 9029; a check of the license proved that it was issued to the defendant, Horace Haynes; the car was placed under surveillance and it was first seen at the Penn Casting Company plant in Chester at 1 p.m.: a man, by the name of Fontaine, also under investigation for gambling, was seen coming out of the factory and he handed a package to Haynes; the operator was followed as he made various stops and pickups similar to the stops and pickups made by Saunders; six such stops and pickups were made; the informant in this case was the same one who had informed in the Saunders' case in which the information proved accurate; he had described the same route and the same activity in both cases; the witness testified that the prior pickup man, Saunders, had been under surveillance as he followed this same route and that proof was obtained as a result of the arrest that Saunders was engaged in the numbers business; the police witnesses gave the justice of the peace the specific
[ 218 Pa. Super. Page 16]
dates of November 7, 8, 12, 13, 14, 15, 18, when Haynes was followed and his activity observed.
The court suppressed the evidence obtained by use of the warrant on authority of Aguilar v. Texas, 378 U.S. 108, 12 L. ed. 2d 723, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L. ed. 2d 637, 89 S. Ct. 584 (1969). This was error as in both cases the warrants were stricken down on the face of the affidavits themselves, no testimony of additional facts was given to the magistrate. The court determined that the contents of the affidavits were mere conclusions. This is not the situation in the instant case.
In Aguilar v. Texas, supra, the Affidavit that was stricken down was as follows: "Affiants have received reliable information from a credible person and do believe that heroin, marijuana . . . are being kept at the above-described premises for the purpose of sale and use contrary to the provisions of the law."
This was the only information presented, unlike the instant case. In a footnote (1) to its opinion in 12 L. ed. 2d at 725, the Supreme Court said: "The record does not reveal, nor is it claimed, that any other information was brought to the attention of the justice of the peace. . . Moreover, there is no evidence in the record that a surveillance was actually set up on petitioner's house. Officer Strickland merely testified that 'we wanted to set up surveillance on the house.' If the fact and results of such a surveillance had been appropriately presented to the magistrate, this would, of course, present an entirely different case."
In Spinelli v. United States, supra, where a warrant was struck down the Court pointed out that there were certain well established propositions with regard to the standards applicable to determination of probable cause: only probability and not a prima facie showing of criminal activity is a standard of probable cause;
[ 218 Pa. Super. Page 17]
as in Aguilar v. Texas, supra, and Spinelli v. United States, supra, simply accept conclusions but made the decision based on facts and circumstances that established probable cause within the guidelines provided by those decisions.
The decision of the court below is reversed with a procedendo.
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