Appeal from judgment of sentence of Court of Common Pleas of Indiana County, June T., 1973, No. 90, in case of Commonwealth of Pennsylvania v. William Douglas Hagen and Karen Marie Basile.
Robert M. Rosenblum and Alan Schnoll, for appellants.
W. Thomas Malcolm, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Price, J.
[ 240 Pa. Super. Page 445]
Appellants were convicted on April 17, 1974, of violation of The Controlled Substance, Drug, Device and Cosmetic Act*fn1 following a jury trial held before Judge Handler. Appellant Hagen was sentenced to pay a $500.00 fine and to a term of six to twelve months imprisonment; appellant Basile to pay a $300.00 fine and to a term of four and one-half to six months imprisonment.
[ 240 Pa. Super. Page 446]
Prior to trial appellants made timely application to suppress evidence seized during a March 4, 1973 search of their apartment, Apartment No. 35, Regency House Apartments, Indiana Borough, which was denied. Post-trial motions were filed and denied and the instant appeal followed sentencing. Appellants' sole contention here is that their motion to suppress should have been granted below. We agree that the evidence seized in the March 4, 1973 search should have been suppressed and we therefore reverse.
Appellants claim that the search warrant involved here was issued without probable cause and was improperly executed.*fn2 The warrant named "William D. Hagen and Karen M. Basile (William D. Hagen Known as 'Doug')" as the name of owner, occupant of premises and/or person to be searched and "Apt. No. 32 Regency House and rooms therein, in two story Brick, apartment complex in Indiana Borough, Pa." as the premises to be searched. The affidavit of probable cause read as follows:
"On Jan. 12, 1973 Sgt. Peter Buchan PSP received information from Sgt. Robert Brown of the Pittsburgh Penna. State Police Dept. to the effect that there is a large dealer in narcotics that goes by the name of 'Doug' presently living at the Regency House Apartments in Indiana, Pa. On Jan. 16, 1973 Sgt. Peter Buchan received information from a confidential informant that he believes to be true and correct to the effect that there is a large dealer in
[ 240 Pa. Super. Page 447]
narcotics by the name of 'Doug' living in an apartment at the Regency House Apartments in Indiana, Pa. and that the informant has observed the smoking of marihuana and marihuana in one (1) lb. bricks and also observed one (1) lb. brick of marihuana being sold at this apartment, on dates prior to the information being received.
"On Feb. 8, 1973 Tpr. Gary L. Thistlethwaite, P.S.P. met with the confidential informant who took Tpr. Thistlethwaite to Indiana, Pa., and pointed out apartment #82 of the Regency House apartment as the apartment from which the information given to Sgt. Pete Buchan on date of Jan. 16, 1973 by this same confidential informant had come from and also where the suspect 'Doug' was living at the time these observations were made.
"The confidential informant was not sure on Feb. 8, 1973 as to whether the suspect 'Doug' had moved from this apartment as of this date, but that Doug was to receive a large shipment of Marihuana in the form of one (1) lb. bricks and other drugs in the very near future and that when 'Doug' did receive this shipment the confidential informant would be aware that the marihuana had ...