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COMMONWEALTH v. BARRETT (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
BARRETT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 660 of 1973, in case of Commonwealth of Pennsylvania v. James Barrett.

COUNSEL

William F. Ochs, Jr., Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Cercone, J., concurs in the result. Dissenting Opinion by Hoffman, J.

Author: Van Der Voort

[ 233 Pa. Super. Page 525]

Appeal is taken to this Court from judgment of sentence rendered by Judge Warren K. Hess following jury verdict of guilty of possession with intent to deliver a controlled substance*fn1 and conspiracy.*fn2 Previous to the September 27, 1973, trial, a suppression hearing had been held on September 6, 1973, before Judge Frederick Edenharter, wherein appellant sought to suppress evidence obtained by means of search warrants for the body of appellant and for the automobile which he was using at the time of arrest. Post-trial motions were filed, argued, and denied.

Based upon affidavits*fn3 of one Jere Verdone, a Reading, Pennsylvania, police officer, District Justice Ralph B. Breneiser issued search warrants for the body of appellant and for a "Cadillac Sedan" in which appellant, one Theodore Covel and " two other unknown persons " were known to be riding. On April 30, 1973, at approximately 9:00 P.M., in the City of Reading, Pennsylvania, said vehicle was stopped, and the warrants were executed upon the car and appellant. Occupants were appellant and his two co-defendants below, Covel and Anthony Spade. Evidence was seized which later proved to be

[ 233 Pa. Super. Page 526]

    heroin, packaged in 169 glassine bags, each bag containing approximately 100 milligrams of the substance. Appellant and the others were held for preliminary hearing and charged with the aforestated crimes.

Appellant challenges the existence of probable cause for the Magistrate's issuance of both a body and an automobile search warrant and alleges that said lack of probable cause in the affidavit should have served below as grounds to suppress evidence of crime, to-wit, 169 glassine bags of heroin found in the Cadillac automobile in which appellant and two co-defendants were riding. The six paragraph affidavit provided to the Magistrate becomes the focus of our study.

When a law enforcement officer applies for a search and seizure warrant he makes an affidavit before an issuing authority. When the information in support of the issuance of the warrant has been received in substantial part from an informer, the issuing authority must be able to determine from the contents of this affidavit that the officer knows "the underlying circumstances from which the informer concluded that the suspect possessed the fruits or evidence of a crime" and that the officer has "some reasonable basis for concluding that the source of the 'tip' was reliable". Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964), Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973), or as we said in Commonwealth v. Cosby, 234 Pa. Superior Ct. 1, 6-7 (1975), the statement of facts given by the officer must be "sufficient to enable the issuing authority to make two independent judgments:

(1) That the affiant is probably correct in his belief that the informer is reliable; and

(2) That the information received from the informer is probably reliable."

Such facts being set forth in the affidavit the issuing authority may conclude that probable cause exists for the issuance of the search and seizure warrant.

[ 233 Pa. Super. Page 527]

The affidavit*fn4 establishes that the affiant, Police Officer Lt. Verdone received information from three different informants and in addition had some personal knowledge pertinent to proof of probable cause. To facilitate clarity of expression, the informants will be referred to as informant No. 1, the one referred to in paragraph (1) of the affidavit; informant No. 2, the one referred to in paragraph (3) and informant No. 3, Officer Schwartz referred to in paragraph No. 4.

Informant No. 1 told Lt. Verdone that two men were involved in narcotic drug traffic in the City of Reading. He gave Officer Verdone the following details: that their names were Theodore Covel and "Tiny" Barrett, that these two men were in a partnership to sell heroin, that they are selling it in the City of Reading, that the two of them are buying heroin in Philadelphia, that they pick it up by driving a car there; that appellant was using a black Cadillac sedan of approximately 1969 vintage and that appellant's real name is James Barrett. This information was given to Lt. Verdone on April 27, 1973 and the application for the search warrant was made on April 30, 1973.

Both Covel and the appellant were known personally to all members of the Reading Vice Control Division as persons who had been ...


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