Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 2103 of 1970, in case of Commonwealth of Pennsylvania v. David Edward Emerich.
Michael J. Perezous, and Xakellis, Perezous & Mongiovi, for appellant.
Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Wright, P. J., and Watkins, J., would affirm on the opinion of Brown, J.
[ 225 Pa. Super. Page 165]
This is another one of those unfortunate cases where the police discover evidence which is sufficient to incriminate but is inadmissible at trial because it was procured as a result of a defective search and seizure warrant contrary to the constitutional rights of an accused guaranteed by the First, Fourth, Fifth and Fourteenth Amendment of the United States Constitution and the Constitution of Pennsylvania: Kerr v. U. S., 374 U.S. 23 (1963), making Fourth Amendment rights under the United States Constitution enforceable against the states through the Fourteenth Amendment; Benton v. Maryland, 395 U.S. 784 (1969), making Fifth Amendment rights enforceable against the states through the Fourteenth Amendment: New York Times v. Sullivan, 376 U.S. 254 (1964), reiterating that First Amendment's rights are enforceable against the states through the Fourteenth Amendment.
The affidavit in this case, which is the only matter before us for consideration in determining its sufficiency for the issuance of the search warrant, contains the following information:
"1(a). That on or about the 9th day of January, 1970, Troopers Lapp and Wenzler, Pennsylvania State Police, Lancaster, Pennsylvania, served a search warrant at the residence of David Emerich and during the search they found one hash pipe and a plastic bag of marijuana seeds.
"1. On the date of 19, June, 1970, information received from a confidential informant who stated that David Emerich is in the business of selling marijuana and LSD and growing marijuana in the Millersville area.
[ 225 Pa. Super. Page 166]
"2. On the date of 25, September, 1970, information received from a confidential informant who stated that David Emerich goes to New York and New Jersey and gets large quantities of drugs to be sold in the Millersville area. Also stated that Emerich uses his own vehicle for said trips.
"3. On the date of 27, October, 1970, a quantity of marijuana was found in the front yard of the Emerich residence. Information received from Chief Henry Seigler, Millersville Police Department.
"4. On the date of 27, October, 1970, a quantity of marijuana was found under a tree near the Emerich residence. Information received from Chief Henry ...