Appeal, No. 444, April T., 1972, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1969, Nos. 551 and 552, in case of Commonwealth of Pennsylvania v. Alonzo Davis. Judgment of sentence reversed and new trial granted.
F. Lee Baily, with him Thomas J. O'Neill, for appellant.
John G. Alford, Assistant District Attorney, with him Robert L. Eberhardt, Assistant district Attorney, and Robert w. Duggan, district Attorney, for Commonwealth, appellee.
Before Wright, P.j., Watkins, Jacobs, Hoffman, Spaulding, Cercone and Spaeth, JJ.
[225 Pa. Super. 242 Page 243]
This is an appeal from a judgment of sentence imposed on appellant following convictions for conspiracy to sell and possession of a narcotic drug. Appellant following convictions for conspiracy to sell and possession of a narcotic drug. Appellant's sole contention is that the warrant which authorized a search of his house was not supported by probable cause as required by the Fourth Amendment to the United States Constitution. We believe that the facts presented to the issuing magistrate did not amount to probable cause, that the seizure of the evidence was
[225 Pa. Super. 242 Page 234]
therefore illegal, and that its use at appellant's trial was error.
The search was conducted on February 28, 1969, pursuant to a warrant issued that same day. A review of the record indicates that the following information was presented to the magistrate*fn1 in support of the warrant:*fn2 (1) numerous visits by four individuals throughout January and February of 1969 whow were reputed
[225 Pa. Super. 242 Page 245]
to be narcotics pushers,*fn3 one of whom was from Columbus Ohio; (2) appellant's reputation as a narcotics pusher, and his recent arrest on a narcotics charge; (3) a visit by an individual in a dump-truck who gave a package to appellant's wife who carried it to the house under her trench coat; and (4) a change of automobile license plates from appellant's automobile to a different car. The behavior of the four reputed narcotics pushers was described as suspicious because they "looked around" when arriving and leaving.
The first two factors listed above are clearly insufficient to warrant a finding of probable cause. In Commonwealth v. Dial, 218 Pa. Superior Ct. 248, 276 A.2d 314 (1971), we held that the mere detailing of an accused's previous arrests for narcotics violations plus the occurrence of numerous meetings between an accused and known narcotics dealers and users was an insufficient basis from which a magistrate could conclude that the accused was in possession of narcotics. Similarly, in Commonwealth v. Prasnikar, 221 Pa. Superior Ct. 469, 292 A.2d 420 (1972), we held that such information did not afford a reasonable inference that criminal conduct existed, and could not, therefore, provide a sufficient basis ...