Appeal from order of Superior Court, April T., 1972, No. 190, affirming judgment of sentence of Court of Common Pleas of Beaver County, No. 425 of 1971, in case of Commonwealth of Pennsylvania v. Joseph Eazer.
John J. Hudacsek, Jr., with him Anthony J. Lalama, and Hudacsek & Lewis, for appellant.
Joseph M. Stanichak, Assistant District Attorney, with him Joseph S. Walko, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.
Prior to trial appellant moved to suppress evidence seized in a March 27, 1972 search of his home on the ground that the warrant was not supported by probable cause. The motion was denied and the challenged evidence introduced over objection at trial. Appellant was convicted of conducting a lottery*fn1 and sentenced to pay a fine of $500 and undergo imprisonment for not less than sixty days nor more than one hundred and twenty days. The Superior Court affirmed. Commonwealth v. Eazer, 223 Pa. Superior Ct. 501, 302 A.2d 354 (1973).
We granted allocatur to determine whether the probable cause necessary to obtain a search warrant is established by an allegation of criminal conduct occurring sixty-one days before application for the warrant. We conclude that such a delay dissipates the present probable cause required by the Fourth Amendment*fn2 to be demonstrated before a warrant may issue.*fn3 We reverse and grant a new trial.
On January 27, 1972, an undercover police officer entered appellant's newsstand in Beaver Falls and overheard an individual, later identified as "Pattie," placing numbers bets by a telephone in the rear of the store. After briefly conversing with Pattie, the officer placed a fifty-cent bet with him and was informed it would be promptly telephoned to Joe, the owner of the newsstand. The police officer was aware that Joe was appellant, Joseph Eazer. Pattie volunteered that numbers bets could be placed daily at the newsstand during the lunch hour.
Subsequently, police initiated surveillance of Eazer's residence. It was observed that appellant went to his home each day at approximately 11:30 a.m. and returned to his newsstand at approximately 1:00 p.m. Although the surveillance revealed no continuing criminal activity, on March 27, 1972, sixty-one days after the January newsstand encounter, the police obtained a search warrant for appellant's home and automobile. The ensuing search of his home resulted in the seizure of a small quantity of rice paper and the interception of several incriminating telephone calls.
It is well established in this Commonwealth that stale information cannot supply the probable cause necessary for the issuance of a search warrant. Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d
(1971); Commonwealth v. Suppa, 223 Pa. Superior Ct. 513, 302 A.2d 357 (1973); Commonwealth v. Bove, 221 Pa. Superior Ct. 345, 293 A.2d 67 (1972). If, however, it is demonstrated that criminal conduct has in fact continued, then the relevant information, in spite of its vintage, may not be deemed stale. When there is no evidence of continuing criminal activity presented to the magistrate, it has been held that a delay of as little ...