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COMMONWEALTH v. KAPLAN (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
KAPLAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, No. 341, in case of Commonwealth of Pennsylvania v. Eric Kaplan.

COUNSEL

Alan M. Lerner, with him Roslyn G. Pollack, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellant.

Mark C. Stephenson, Assistant District Attorney, with him 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, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Watkins, P. J. Concurring Opinion by Hoffman, J. Dissenting Opinion by Spaeth, J.

Author: Watkins

[ 234 Pa. Super. Page 103]

This is an appeal from the Court of Common Pleas, Criminal Division of Philadelphia County by the defendant-appellant, Eric Kaplan, challenging the sufficiency of the search warrant pursuant to which controlled substances were found and seized by the police and subsequently used against the defendant at trial.

On December 11, 1969, the defendant was arrested and charged with possession of a controlled substance. Police had conducted a search of his premises pursuant to a search warrant which is the basis of this appeal. The search revealed that the appellant had 48 pounds of marijuana in his apartment. Pre-trial motions to suppress the evidence obtained pursuant to the search warrant were denied and on September 7, 1971, the appellant was convicted of possession of narcotic drugs after a non-jury trial. The appellant was sentenced to five (5) years probation as a result of the conviction. Subsequently, he was granted the right to file an appeal nunc pro tunc by the court below and this appeal followed.

Appellant's sole contention on appeal is that the conviction should be overturned because the evidence seized and admitted into evidence at this trial was done so pursuant to an invalid search warrant. The warrant set forth that the premises to be searched was occupied by Eric Kaplan, the appellant. The premises was described

[ 234 Pa. Super. Page 104]

    as "#1821 Pine Street, 3rd Floor Front -- 3 story brick building." Appellant challenges the sufficiency of the warrant because his apartment was located in the rear of the third floor of the building in question and not in the front. He also claims that the warrant is defective because the apartment building at the named address contained 4 floors and not 3.

Normally, separate living units of a multiple tenant building must be treated as if they were separate dwelling houses and probable cause must be shown to search each one. Commonwealth v. Copertino, 209 Pa. Superior Ct. 63, 224 A.2d 228 (1966). Therefore, if the search warrant in question does not specify which particular dwelling unit in a multiple dwelling building is to be the object of the search then the warrant is invalid and any evidence seized pursuant thereto is unlawfully obtained and must be suppressed at trial upon the filing of the proper motions. This is so unless probable cause is shown which justifies the search of the entire building. In our case there is no question that only one apartment in the building was authorized to be searched, that of Eric Kaplan. The only question is whether the search warrant described his apartment with sufficient specificity so as to validate the warrant.

In Commonwealth v. Fiorini, 202 Pa. Superior Ct. 88, 195 A.2d 119 (1963), we held that it is not necessary to a valid description of an apartment that its location within a particular building be given. To the contrary, a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid. Commonwealth v. Fiorini, supra. Turning to the search warrant at issue in the instant case, it is apparent that the warrant set forth the name of the occupant of the ...


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