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COMMONWEALTH v. TATE (10/28/75)

decided: October 28, 1975.

COMMONWEALTH, APPELLANT,
v.
TATE



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1974, No. 2855A, in case of Commonwealth of Pennsylvania v. Leonard Tate.

COUNSEL

Charles W. Johns, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.

John H. Corbett, Jr., Trial Defender, with him John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Spaeth, J., concurs in the result. Concurring Opinion by Hoffman, J. Jacobs, J., joins in this concurring opinion.

Author: Price

[ 237 Pa. Super. Page 106]

The appellee was indicted for violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Appellee's pre-trial motion to suppress evidence was granted by the lower court, and the Commonwealth appeals that determination. We find the suppression was improperly granted and will, therefore, reverse the lower court's order.

The facts as found in the record indicate that on April 22, 1974, while patrolling in his car in the Hill District of Pittsburgh, Police Officer Ralph McDaniel received a call from his home office directing him to meet an informant. Officer McDaniel proceeded to the designated rendezvous and was met by an individual who was well known to him and who had previously supplied information resulting in convictions. The informant indicated that he had just been in Lena's Bar, a local establishment, and had seen a person whom he knew only as "Leonard" selling heroin wrapped in silver packets to three separate persons. He told the officer that

[ 237 Pa. Super. Page 107]

    he had witnessed the exchange of the narcotics for money and that "Leonard" still had a number of the packets in his possession. The informant then gave a detailed description of "Leonard" as being dark skinned, having a beard, and wearing glasses, green trousers, a black trench coat, and a blue jean hat or cap.

The informant indicated that time was critical, and Officer McDaniel radioed for another police car to aid in the arrest. As the officers entered the bar, they saw the appellee, who fit the description given. The police approached the appellee, identified themselves, and searched appellee. Thirteen packets of heroin were found and seized.

It is fundamental that probable cause must exist to support any search, whether it be with a warrant or without one. United States v. Rubin, 474 F.2d 262 (3d Cir. 1973). We must, therefore, first determine if sufficient probable cause existed to justify a search of appellee.

The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), enunciated the standard for determining the sufficiency of the probable cause supporting a search.*fn2 The court there stated, in effect, that: (1) the officer must know the underlying circumstances from which the informer concluded that the suspect was guilty of a crime, and (2) the officer must have some reason to believe the informer is telling the truth. The first requirement is met where the informant tells the officer how the information was obtained or describes the criminal activity in ...


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