Appeals from order of Court of Common Pleas of Lancaster County, Nos. 1141 and 1142 of 1971, in case of Commonwealth v. Richard Joseph Manduchi, and same v. Frederick Lloyd Homsher, Jr.
Henry J. Rutherford, District Attorney, for Commonwealth, appellant.
Michael J. Perezous and Emmanuel H. Dimitriou, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Wright, P. J., and Watkins, J., dissent.
[ 222 Pa. Super. Page 564]
Appellees Manduchi and Homsher were indicted for bookmaking, violation of Section 607 of The Penal Code (18 P.S. 4607). The Commonwealth had obtained evidence against both appellees as a result of a search conducted on the premises owned by appellee Homsher.
After a pretrial suppression hearing and argument thereon, the Court of Common Pleas of Lancaster County, Criminal Division, allowed appellees' application for suppression of evidence on the ground that the affidavit did not contain sufficient probable cause. As a result of that ruling, the Commonwealth filed this appeal.*fn1
The lower court verified and approved a stipulation of counsel to the effect that the only information presented to the issuing authority, in determining whether probable cause existed, was that which is contained within the four corners of the sworn affidavit of Trooper Paul Mennig. The probable cause section of the affidavit, with which we are concerned, is set forth in the addendum to this opinion.
The court below held that the affidavit did not set forth sufficient underlying circumstances from which the informer could conclude that the items in issue were where he said they were, and therefore concluded that the search and seizure warrant did not contain sufficient probable cause to justify its issuance. After a careful review of the attached affidavit and applicable law, we support the suppression order as entered by the court below.
[ 222 Pa. Super. Page 565]
The affidavit attempts to establish probable cause based upon (1) information received by affiant from confidential informant; (2) from official records listing arrests and convictions; and (3) by surveillance.
I. The validity of a search warrant based upon information received from confidential informants, i.e., "tips", must be measured against the "two-pronged test" set forth in Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509 (1964): "The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable'." Our court in Com. v. Somershoe, 215 Pa. Superior Ct. 246, 250, 257 A.2d 341 (1969), stated: ". . . Aguilar sets forth two requirements which must be met in the affidavit before a search warrant can be properly issued: (1) the setting forth of underlying circumstances from which the informer concludes that the items in issue are where he said they were and, (2) the setting forth underlying circumstances from which the officer affiant concludes that the informer is credible or his information reliable". See also: Com. v. D'Angelo, 437 Pa. 331, 337, 263 A.2d 441 (1970); Com. v. Smyser, 205 Pa. Superior Ct. 599, 211 A.2d 59 (1965); Com. v. Alvarez, 208 Pa. Superior Ct. 371, 222 A.2d 406 (1966); Com. v. Robinson, 218 Pa. Superior Ct. 49, 54, 269 A.2d 332 (1970); Com. v. Swierczewski, 215 Pa. Superior Ct. 130, 132, 257 A.2d 336, 337 (1969).
The allegations contained in paragraphs 1, 2, 3, 14, 16, and 21 of the affidavit consist merely of conclusions without factual foundation. There are no factual or underlying circumstances set forth to support the statement that Homsher is "taking horse bets at his home", or for the statement of a partnership between Homsher
[ 222 Pa. Super. Page 566]
and Manduchi, or for the statement that Manduchi comes to Homsher's home and "takes action over the telephone there", or that the informant has "personal knowledge of the betting at this address", or for the assertion that "Manduchi has bookmaking connections all over the southeastern part of Pennsylvania". There is no information as to the underlying source of the informant's information. The affidavit does not relate that the informant saw the acts alleged to have taken place, or that the informant has dealt with or even met with the parties involved.
The facts, as stated in paragraphs 2 and 12 of the affidavit, relating to informant's information and to the officer's surveillance, are in themselves neutral and deal with completely innocent behavior which, without more, are ...