Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1973, Nos. 352 and 353, in case of Commonwealth of Pennsylvania v. Emanuel Cosby.
David Richman, William Turnoff, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Hardy Williams, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.
This is an appeal by the Commonwealth from an order suppressing evidence as obtained by an illegal search and seizure.*fn1
In May of 1972, John Knox, a student at Temple University, sublet his apartment near the Temple campus to appellee. Appellee never paid the rent, and on July 14, 1972, at about 4:00 p.m., Knox went to the apartment to collect the rent. Finding that the lock had been changed, he went to the landlord's office and obtained the aid of the maintenance man, who broke the lock. Upon entering the apartment, Knox found an album cover with white powder, a razor blade, and a straw on top of it. He reported this to the landlord's office, where the person in charge called the police.
Agent Hirsch, a State Narcotics Officer, responded to the call. Knox told the agent what had happened and admitted him to the apartment, where the agent saw the powder. Believing the powder to be a controlled substance, the agent telephoned Officer Rechner of the Philadelphia Police Narcotics Squad and requested his assistance in obtaining a search warrant. The agent and Knox then left the apartment and went downstairs to the lobby to await the warrant. While they were waiting, appellee arrived and was placed under arrest. The three men then waited in the apartment until the warrant arrived.
Officer Rechner testified that on the basis of Agent Hirsch's telephone call he had obtained a search warrant from a Municipal Court judge, and that by approximately 7:15 p.m. he had arrived at the apartment and executed the warrant, seizing the alleged narcotics and narcotics paraphernalia.
The probable cause section of the search warrant obtained by Officer Rechner recited as follows:
"On Friday, 7-14-72, at about five o five p.m., State Narcotics Agent Michael Hirsch called the Philadelphia Narcotics Unit, Philadelphia Police Department, and spoke to me and gave me the following information: He stated that he received a call from one Pristine Simpson, 24, female, white, who was a secretary of the Yorktown Apartments at 1200 West Columbia Avenue. She informed him that one John Knox, approximately 23, white male, had sublet his apartment at that location to one Emanuel E. Cosby, 24, Negro male, and that when Knox came to the apartment, which is apartment 318 E. to collect his rent from Cosby, he found in the apartment a small packet containing a white powder and a small residue with white powder.
Agent Hirsch received this call from Simpson on 7-14-72 and then went to the apartment-house and met Mr. Knox. Mr. Knox informed Agent Hirsch that he is a student at Temple University and that on May 6, 1972, he subletted his apartment, Apartment 318-E to Emanuel Cosby, and on 7-14-72, Mr. Knox ...