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COMMONWEALTH v. SHAW (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
SHAW, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 1394, affirming judgment of sentence of Court of Common Pleas of Susquehanna County, Jan. T., 1969, No. 28, in case of Commonwealth of Pennsylvania v. David Brian Shaw.

COUNSEL

Richard M. Rosenbleeth, with him Marvin Comisky, and Blank, Rome, Klaus & Comisky, for appellant.

Edward P. Little, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Eagen

[ 444 Pa. Page 111]

Appellant, David Brian Shaw was convicted by a jury of possessing narcotic drugs in violation of The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, § 4, 35 P.S. § 780-4. A motion for a new trial was dismissed and a sentence of 2 to 5 years imprisonment plus the payment of $500 fine was imposed. On appeal the Superior Court affirmed the judgment of sentence without opinion. Judge Hoffman filed a dissenting opinion in which Judges Jacobs and Spaulding joined. See 217 Pa. Superior Ct. 163, 269 A.2d 140 (1970). We granted allocatur and now reverse.

On December 8, 1968, a detail of Pennsylvania State Police officers, armed with a search warrant, raided a house in Brooklyn Township, Susquehanna County, and in the course of a search of the premises found and

[ 444 Pa. Page 112]

    seized a small quantity of marijuana and hashish. Shaw who was present and in possession of the house at the time was immediately placed under arrest. A pretrial motion to suppress the evidence seized in the raid was denied after an evidentiary hearing, and at trial the Commonwealth was permitted, over objection, to introduce this evidence as part of its case against Shaw. This was error. The warrant which authorized the raid and search was constitutionally defective, in that it was issued without a showing of probable cause and, therefore, evidentiary use of the property seized in the execution of the warrant was constitutionally proscribed at trial.

The law is clear that before a search warrant may issue, facts supported by oath or affirmation must be presented to the issuing officer which will justify a finding of probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964).

In the instant case, the complaint was filed and the warrant issued on December 8, 1968. In substance, the complaint alleged that Shaw was in possession of the premises for which the warrant was requested; that he was a known narcotics user and wanted as a fugitive by the New York State Police on a narcotics criminal charge; that an undercover agent of the Pennsylvania State Police had learned of a shipment of marijuana to the premises during April 1968 and had witnessed the use of marijuana and hashish on the premises during the same month; that from April to December the complaining officer traveled by the premises twice a week and observed the presence of automobiles bearing out-of-state licenses; and, that on December 8th, a "caravan of vehicles" came to the premises from New York State bringing many long-haired hippie-type individuals wearing "psychodyllic and unusual clothing" who remained there for hours.

[ 444 Pa. Page 113]

The Commonwealth admits, as it must, that the events described in the complaint as happening on December 8th did not constitute criminal activity and would not, in themselves, be sufficient to warrant a man of reasonable caution in the belief that a criminal offense had been or was then being committed. At most, the events described could give rise to suspicions, but suspicion or mere belief does not constitute ...


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