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COMMONWEALTH v. MCCANTS (01/19/73)

decided: January 19, 1973.

COMMONWEALTH
v.
MCCANTS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 265, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1608, in case of Commonwealth of Pennsylvania v. John McCants.

COUNSEL

Francis S. Wright, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

David Richman, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Concurring Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this concurring opinion.

Author: Manderino

[ 450 Pa. Page 246]

The appellant, John McCants, was arrested after marijuana and heroin were discovered during the search of a vacant second-floor front apartment of a multidwelling unit where he resided. The search was conducted pursuant to a fifteen-day-old warrant. Although the apartment was vacant and the appellant claimed he lived in the second-floor rear apartment with his mother, the arresting officer had observed the appellant in the vacant apartment and also had information that the appellant was using the vacant apartment to transact the sale of narcotics.

The appellant was found guilty of possession of narcotic drugs in a non-jury trial and sentenced to a prison term of not less than six nor more than twenty-three months. Judgment of sentence was affirmed by the Superior Court and this appeal followed.

The Commonwealth's evidence consisted solely of the testimony of the arresting officer and the admission of the seized drugs. The seized drugs were admitted into evidence following a denial of the appellant's motion to suppress. In the motion to suppress, the appellant

[ 450 Pa. Page 247]

    claimed the search warrant used by the arresting officer was invalid because it had been issued on May 22, 1970 and not executed until June 5, 1970, fifteen days later.

On appeal to this court the appellant does not question the grounds for the original issuance of the search warrant but maintains that any probable cause for the original issuance of the warrant had dissipated by the time the warrant was executed. Without probable cause, argues the appellant, the drugs were seized pursuant to a constitutionally invalid search warrant and, therefore, it was error to admit them into evidence.

A search or a seizure warrant is valid if: (1) Probable cause exists, and (2) The determination of probable cause is made by the proper neutral issuing authority.

Both of the above factors are equally important. Since the existence or nonexistence of probable cause requires a common sense judgment, and not a rote application of a predetermined checklist to ...


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