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UNITED STATES EX REL. SMITH v. BRIERLEY

February 4, 1971

UNITED STATES of America ex rel. Harvey SMITH
v.
Joseph R. BRIERLEY, Supt.


John W. Lord, Jr., District Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, Jr., District Judge.

 This Court is now asked to consider the eighth civil action brought by Harvey Smith, which alleges a) a defective search warrant; b) arrest without probable cause; c) ineffective assistance of counsel; and d) illegal sentence. Upon consideration of the briefs submitted, this Court finds that an independent evidentiary hearing is not required. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 Relator has exhausted his state court remedies, having attacked some aspect of his arrest, trial and/or sentence on at least six different occasions. See, inter alia, Commonwealth v. Smith, 216 Pa. Super. 746, 258 A. 2d 330 (1969); Commonwealth v. Smith, 217 Pa. Super. 769, 268 A. 2d 243 (1970).

 With regard to the defective character of the search warrant, we will quote at some length from the warrant to dispose of the allegation that the police acted without probable cause. On September 12, 1966, Officer Fortunato Larusso, Badge No. 2849, Special Investigation Squad, Philadelphia Police Department, secured Search and Seizure Warrant No. 59396 from Magistrate Malone at approximately 9 or 10 A.M. The warrant stated in part:

 Name of Owner, Occupant of Premises and/or Person to be Searched -- Colored male known as 'Harvey' app. 5'-9", 155 lbs. with close grouped graying hair.

 Address and Description of Premises and/or Person to be Searched -- Vicinity of 19th & Norris Sts.

 Describe Property to be Seized -- Narcotics (heroin).

 Violation of -- P.L. 282, 7-11-17, Sections 4 & 5.

 Date of Violation -- 9/12/66.

 Probable Cause and/or Reasonable Grounds -- Information received from a reliable source. I have known this informant for about five years and he has given me numerous arrest (sic) in the narcotic (sic) area. Of the arrest (sic) he has given me 90% of the cases resulted in the conviction of the defendant's (sic). My informant stated to me that he had a meet with the above named person earlier this morning and that at that time after my informant xxxxxxxxxsx (sic) narctics (sic) Harvey has a large packet of dope wrapped around a rubber band he was carring (sic) the dope inside his coat pocket. My informant stated that he cannot get a location of a house only that he frequents 19th and Norris daily." (See Search and Seizure Warrant, and Notes of Testimony of Suppression Hearing, hereinafter N.T. Supp., pp. 9-12.)

 The Court might criticize Officer Larusso's grammar, punctuation and spelling; however, we find nothing to criticize with regard to the obtaining of Search and Seizure Warrant No. 59396.

 The only explanation for an allegation of defectiveness of the warrant on the part of relator is that two "warrants" appear on the record. One is "Search and Seizure Warrant No. 59396" issued September 12, 1966. The second is "Philadelphia Police Dept. C.C. No. 44249 Complaint Warrant/Summons", issued on September 19, 1966. This second "warrant" is the complaint sworn out by Officer Larusso after the arrest of September 12, 1966, which bound relator over, and was signed by relator when he waived preliminary hearing, on September 19, 1966.

 We believe that the warrant was issued with probable cause. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. ...


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