The opinion of the court was delivered by: BECHTLE
Defendant Teti has been charged with two counts of receiving firearms as a convicted felon, in violation of 18 U.S.C. App. § 1202(a)(1), and with two counts of illegally possessing a firearm, in violation of 26 U.S.C. §§ 5861(d) and (i). This Court held a hearing on defendant's motion to suppress certain physical evidence and a statement which he made to agents of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury. For the reasons stated below, the motion to suppress the physical evidence will be granted and the motion to suppress the statement will be denied.
After careful consideration of the conflicting testimony and exhibits presented at the hearing, the Court makes the following narrative findings of fact.
On June 20, 1975, Officer Wallace of the Philadelphia Narcotics Unit received a telephone call from a confidential informant. The informant related that, over the weekend, between the dates of June 15 and June 18, 1975, he had observed defendant Teti, inside defendant's residence at 307 Unruh Street, in the possession of, and selling, marijuana and methamphetamine. Armed with this information, and the fact that the informant had given reliable information in the past, Officer Wallace applied for and obtained a search warrant. Officer Wallace then made a record check on defendant. He was informed over the telephone by an Officer Thompas that defendant had two prior arrests. After the first arrest, defendant was charged with violating § 6106(a) of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6101 et seq. ("P.U.F.A."), and 18 Pa.C.S.A. § 908 which prohibits, inter alia, the possession of an offensive weapon. Defendant was found not guilty on both charges. After the second arrest, defendant was charged with violating §§ 6106(a) & 6108 of P.U.F.A., 18 Pa.C.S.A. § 908, and §§ 780-113(a)(16) & (30) of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. (Supp. 1976), which prohibit possession of, and possession with the intent to deliver, a controlled substance. Defendant was found guilty on the first three charges and put on one to two years' probation. However, the extract of defendant's criminal record, from which Officer Thompas must have referred to while talking to Officer Wallace on the telephone, does not indicate as to which of the above charges defendant was found guilty. Nevertheless, after talking with Officer Thompas, Officer Wallace came away with the impression that defendant had been convicted of violating the P.U.F.A. He relayed this impression to his superior officers, Lt. Wilson and Sgt. Pruitt.
On June 25, 1975, at approximately 7:45 p.m., Lt. Wilson, Sgt. Pruitt, and Officers Wallace, Cassady and Morse drove to 307 Unruh Street in order to execute the search warrant. They parked their car a few houses down from 307 Unruh Street and then proceeded at a brisk pace to the Teti residence. Officers Cassady and Morse went around to the back door. Lt. Wilson, followed by Officer Wallace and Sgt. Pruitt, went to the front door. Although the front door was open, the front screen door was closed. Upon reaching the screen door, Lt. Wilson knocked and announced that they were the police and had a search warrant for that location. Without waiting for a reply, and virtually simultaneously with the knock and announcement, Lt. Wilson opened the screen door and, along with Officer Wallace and Sgt. Pruitt, entered the living room of the house. Upon entering, Lt. Wilson observed Frederick Teti, Sr., to his immediate left, seated in a chair. He then walked straight through into the dining room and on into the kitchen, during which time he observed defendant sitting on a chair in the dining room, speaking on the telephone. Lt. Wilson again told defendant and his father who they were, showed them his badge and asked to see defendant's bedroom. It was ultimately determined that defendant's bedroom was in the basement. Lt. Wilson, accompanied by defendant, Frederick Teti, Sr., Officer Wallace and Sgt. Pruitt, proceeded down into the basement in order to search the bedroom. Upon opening the bedroom door, Wilson observed a "brown-green weed" on a coffee table. Recognizing it to be marijuana, he immediately placed defendant under arrest and gave him the Miranda warnings. While Frederick Teti, Sr., remained outside the room, the three officers, with defendant present, then proceeded to search the room. The room itself was approximately eight by twelve feet in size and was in total disarray. While searching the room for narcotics, the three officers discovered a total of seventeen firearms, as well as ammunition for the weapons. Three of the seventeen firearms were in open display on a wall gun rack with the rest secreted in various places throughout the room. Upon discovering several of the hidden weapons, one of the three officers handcuffed defendant. Each of the firearms was seized for two reasons. The first was for the officers' own personal protection. The second was that Lt. Wilson and Officer Wallace believed that it was a violation of federal law for a person who had been convicted of violating the Pennsylvania Uniform Firearms Act to possess firearms. (See 18 U.S.C.App. § 1202(a)(1).) Five of the seized weapons ultimately formed the basis for the instant indictment.
More than two months later, on September 5, 1975, at approximately 9:00 a.m., Special Agent Minichino of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, telephoned defendant and asked whether he could interview him. Defendant consented and, shortly thereafter, Agent Minichino, accompanied by Agent Piccirilli, went to 307 Unruh Street and met with defendant. Agent Minichino immediately advised defendant that they were there to interview him concerning his arrest by the Philadelphia police on June 25, 1975, specifically with respect to the firearms. Agent Minichino then gave defendant the Miranda warnings and asked him if he understood them. Defendant responded that he would not give a written statement, but would grant an interview. After approximately ten to fifteen minutes, during which time defendant made a statement concerning the means by which he came into possession of the firearms, defendant stated that he did not wish to say anything more until his attorney was present. The interview was terminated at that time.
1. Probable cause for issuance of search warrant.
In order for the search warrant to have been properly issued, there must have been probable cause to believe that defendant Teti either had in his possession marijuana or methamphetamine, or was selling such substances from inside his residence, 307 Unruh Street. Since the showing of probable cause in this case was based upon the affidavit of Officer Wallace, who relied primarily upon information supplied by a confidential informant, his affidavit must be examined under the standards formulated in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), and as further explained in United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971). We recently examined those standards in United States v. Fina, 405 F. Supp. 267, 270 (E.D.Pa. 1975), wherein we stated:
In Aguilar, it was established that, when law enforcement officers rely completely upon the tip of an informant, the affidavit must sufficiently disclose the underlying circumstances from which the informant concluded that the person to be named in the search warrant was engaged in criminal activity so as to enable a magistrate to independently judge the validity of the informant's conclusion. The affidavit must also disclose the circumstances from which the authorities concluded that the informant was credible or his information reliable. 378 U.S. at 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723. If the informant's tip is corroborated by other information, then Spinelli requires that the magistrate must be satisfied that the tip, as corroborated by this other information, is as reliable as a tip which would pass Aguilar's requirements when standing alone. 393 U.S. at 415, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637. See United States v. Singleton, 439 F.2d 381, 383-384 (3d Cir. 1971).
There is no question that the affidavit on its face satisfies the first test of Aguilar, as the information supplied by the informant concerning defendant's drug-related activities inside 307 Unruh Street was based upon the informant's personal observations. "Such information, if entitled to credit, establishes the requisite probable cause." United States v. Fina, supra, 405 F. Supp. at 270 (citation omitted).
With respect to Aguilar's second test, the fact that the informant's conclusions were based upon his personal observations is sufficient to establish the reliability of the information. See United States v. Harris, supra, 403 U.S. at 577-579. In addition, the affidavit contains a sufficient factual basis from which a magistrate could conclude that the informant, in purporting to relate his personal observations to Officer Wallace, was probably telling the truth. The affidavit states that the informant had, on four occasions within the previous year, given information to the Philadelphia Police Narcotics Unit which led to arrests and convictions. Such information is sufficient to establish the informant's reliability. Jones v. ...