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COMMONWEALTH PENNSYLVANIA v. LEE EARL FRYE. COMMONWEALTH PENNSYLVANIA (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEE EARL FRYE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. PATRICIA MEDICH (TWO CASES)



Appeal from Suppression Orders dated June 2, 1975, at numbers 791, 792 and 794 April Term, 1975 of the Court of Common Pleas, Criminal Division, Westmoreland County. Nos. 652, 653 and 654 April Term, 1975.

COUNSEL

Albert M. Nichols, Dist. Atty., James J. Conte, Asst. Dist. Atty., Greensburg, for appellant.

William Manifesto, Pittsburgh, for appellee.

Cercone, Judge. Spaeth, J., files a dissenting opinion.

Author: Cercone

[ 242 Pa. Super. Page 146]

This is an appeal by the Commonwealth from the order of the court below suppressing evidence which was seized pursuant to a warrant authorizing a search of appellee Frye's residence.*fn1 For the reasons that follow, we reverse the lower court's suppression order.

On February 22, 1975, search warrants were issued for both Frye's Rambler automobile and his residence. The affidavits for both warrants recited, in pertinent part:

"I, the affiant, received information from a confidential reliable informant who called this office by phone on 2-22-75 and stated that he was in the presence of Lee Frye as late as 2-22-75 and witnessed subject sell a kilo brick of marihuana to an unknown white male from a white Rambler vehicle license number 98-388, in the parking lot across from Palmers Restaurant in Turtle Creek, Pa., Allegheny County. Lee also told the buyer that if he needed anymore, to call him after 10:30 P.M., 2-22-75 and no later than 1:30 A.M. 2-23-75 because this would be the best hours to catch him at

[ 242 Pa. Super. Page 147]

    home because he would be out taking care of business. Informant has given information in the past which has proven to be true and correct and which lead to the arrest of Victor Danielson for VCSDD & CA."

The search of Frye's residence resulted in the seizure of four plastic bags of marijuana and related drug paraphernalia. Numerous firearms and weapons were also found in the home. The search of the Rambler resulted in the confiscation of a revolver. Following a suppression hearing, the lower court ruled that the evidence obtained from the Rambler was admissible. However, the court further held that all evidence seized from the house must be suppressed. It is from this latter order that the instant appeal was lodged.

The sole issue raised on this appeal is whether the search warrant for Frye's residence was issued upon a sufficient showing of probable cause.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court delineated the constitutional guidelines for issuing a search warrant when probable cause is based upon information supplied to the affiant by an informant. The affiant must provide sufficient information for the issuing authority to make two independent determinations: "First, the affidavit must set forth the underlying circumstances from which the informer concludes that the items to be seized are at the place to be searched. Second, the affidavit must set forth the underlying circumstances whereby the affiant has concluded that the informer is credible and his information reliable." Commonwealth v. Early, 236 Pa. Super. 60, 64, 345 A.2d 197, 200 (1975); Commonwealth v. ...


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