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COMMONWEALTH v. NOVAK (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
NOVAK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1971, No. 8242, in case of Commonwealth of Pennsylvania v. John Novak.

COUNSEL

Stephen P. Swem, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Van der Voort, J. Watkins, P.j., and Price, J., join in this dissenting opinion.

Author: Cercone

[ 233 Pa. Super. Page 238]

This is an appeal from judgment of sentence arising from appellant's conviction of receiving stolen goods and violation of the Dangerous Drug, Device and Cosmetic Act. Appellant's sole contention is that certain evidence should have been suppressed because the affidavit in support of the search warrant failed to establish probable cause.

The relevant portion of the affidavit is as follows: "Said John Patterson [the informant] stated that he had bought these drugs from Broady [Novak] more than one dozen times within the last two months." The affidavit sets forth no specific dates on which these purchases were made; and, therefore, the first question which must be resolved is when are we to assume the transactions between the appellant and the informant took place. The Commonwealth would have us believe that the transactions occurred continuously "within the last two months." If that were the case it would have been very easy for the specific dates and times to be included in the affidavit. This would have eliminated any doubt as to when the transactions occurred. Since this was not done we are now forced to make an assumption as to when the transactions occurred. Generally when the courts are forced to

[ 233 Pa. Super. Page 239]

    make an assumption as to when transactions occurred "within" a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period. See 100 A.L.R. 2d 532. The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of "within" language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that "within the last two months a dozen purchases were made", rather than "a dozen purchases were made in the first week of January". Therefore, applying this necessary and logical rule of construction to the facts of the instant case, we must assume that the purchases made from the appellant were made within the beginning of the first month of the two-month period, more specifically we must assume that the information was approximately seven weeks old.

The next question we must resolve is, based on the assumption that the information was seven weeks old, was there sufficient evidence in the affidavit from which one could justify a finding of probable cause necessary for the issuance of the search warrant. The landmark Supreme Court Case of Sgro v. United States, 287 U.S. 206, 210 (1932) sets forth the following general rule: "The proceeding by search warrant is a drastic one. Its abuse led to the adoption of the Fourth Amendment, and this, together with legislation regulating the process, should be liberally construed in favor of the individual. . . . While the statute does not fix the time within which proof of probable cause must be taken by the judge or commissioner, it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." [Citations omitted]

[ 233 Pa. Super. Page 240]

The Pennsylvania courts have accepted the Sgro view holding that probable cause must be based on facts closely related to the time of the issuance of the warrant. The Pennsylvania Supreme Court in the case of Commonwealth v. Shaw, 444 Pa. 110, 113-114 (1971) stated: "If the issuing officer is presented with evidence of criminal activity at some prior time, this will not support a finding of probable cause as of the date the warrant issues, unless it is also shown that the criminal activity continued up to or about that time."

This view was reiterated in the case of Commonwealth v. Simmons, 450 Pa. 624 (1973) and in the case of Commonwealth v. Eazer, 455 Pa. 320 (1973). It is clear that in this Commonwealth stale information will not be sufficient to support a finding ...


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