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COMMONWEALTH v. PRASNIKAR (06/16/72)

decided: June 16, 1972.

COMMONWEALTH
v.
PRASNIKAR, APPELLANT



Appeal from judgment of Court of Common Pleas of Westmoreland County, April T., 1971, No. 188, in case of Commonwealth of Pennsylvania v. Karen Prasnikar.

COUNSEL

Dante G. Bertani, Assistant Public Defender, with him Albert C. Gaudio, Assistant Public Defender, for appellant.

Henry A. Martin, Assistant District Attorney, with him Louis H. Ceraso, Assistant District Attorney, and John N. Scales, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J. Wright, P. J., and Watkins, J., would affirm the order below.

Author: Jacobs

[ 221 Pa. Super. Page 470]

In this appeal defendant places in issue the validity of a search warrant. She contends that the warrant was not supported by probable cause and consequently

[ 221 Pa. Super. Page 471]

    the evidence of narcotics found during a search pursuant to the warrant should not have been admitted at her trial. The trial court, refusing to suppress the evidence, found her guilty of drug-possession, from which judgment she now appeals. For the reasons that follow we reverse and order a new trial.

The affidavit for the search warrant reads as follows: "Officer Reed received a phone call from a reliable informant to the activities of this house. A surveillance was conducted on Jan. 24, 27, 28, 29, 30, 1971. And known narcotic users were observed going into this house on the above dates. Also other information given to this Magistrate."

According to the testimony at the suppression hearing the "other information" given to the magistrate was as follows: The informant had given the affiant "reliable information on a previous occasion"; the informant advised the affiant that suspected and known addicts frequented defendant's apartment; and the affiant, during his surveillance of defendant's apartment, observed "quite a few people", including both suspected and known addicts, frequenting the place at all hours of the day and night.

This information fails to meet the Aguilar test for the validity of a search warrant. See Aguilar v. Texas, 378 U.S. 108 (1964). As we stated in Commonwealth v. Soychak, 221 Pa. Superior Ct. 458, 289 A.2d 119 (1972), the test mandated by Aguilar is twofold: The magistrate must be informed of some of the underlying circumstances (1) from which the informant concluded that the suspect was engaged in criminal activity, and (2) from which the affiant concluded that the informant was credible or his information reliable.

In the present case the first portion of the Aguilar test was clearly not met. The magistrate was not told how the ...


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