No. 50 October Term, 1977, Appeal from the Order dated August 16, 1976, of the Court of Common Pleas, Criminal Division, Cumberland County, at No. 211 of 1976.
Edgar B. Bayley, District Attorney, Carlisle, for Commonwealth, appellant.
Joseph E. Sikorsky with him Arthur K. Dils, Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., files a dissenting opinion.
This is an appeal from an order of the lower court granting appellee's motion for new trial and ruling that evidence seized pursuant to a search warrant should not have been admitted at appellee's trial for possession with intent to deliver a Schedule I controlled substance.*fn1 The Commonwealth, unable to retry appellee without said evidence, is clearly entitled to bring this appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The sole issue before us is whether or not the affidavit supporting the issuance of the warrant provided a sufficient basis for
the magistrate to determine that the affiant's informant was probably credible. We believe it did and reverse.
Judge Weidner filed an opinion and order denying appellee's pre-trial motion to suppress. The facts set forth in that opinion are as follows:
". . . The affidavit in the present case reveals that the information leading to the application for the warrant was obtained by Officer Dougherty from one Terry Woodrow. Woodrow had been a passenger in an automobile which had been stopped for a Vehicle Code violation by Officer Donald Tappan. Officer Tappan had learned that Woodrow was a runaway from Loysville Youth Development Center and took him into custody. Approximately an ounce of marijuana was found on Woodrow at that time. Woodrow then admitted to Officer Tappan that he had purchased the marijuana and that the seller was the defendant.
"Officer Dougherty later separately conducted an interview with Woodrow, who again admitted purchasing the marijuana on February 19, 1976 and asserted that the location of the marijuana was in the kitchen cabinets of defendant's home at 120 Carol Lane, Enola, Pennsylvania and disclosed the details of the purchase, including information about the people present, the plastic bags used to package the substance, the scales used to weigh it, and the location of these items. He also indicated that defendant had approximately 25 pounds of marijuana at that time and expected to acquire more within a few days." Printed Record at 34a-35a.
On February 21, 1976, a warrant was issued and a search was conducted at appellee's residence. Approximately one and one-half pounds of marijuana was seized, along with certain other items. Charges were thereafter filed against appellee. Following appellee's conviction, the lower court en banc granted a new trial, holding that the evidence seized should have been suppressed. The Commonwealth subsequently filed this appeal.
In order to support a finding of probable cause based on an informant's hearsay, the affidavit must comply with the now familiar two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The first requirement is an explanation of the "underlying circumstances" from which the informant received the information and reached the conclusion that fruits of a crime would be located in the place to be searched. Secondly, there must be set forth in the affidavit a reasonable basis for the affiant's belief that his informant is credible and his information reliable. See e.g. Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Rose, 211 Pa. Super. 295, 235 A.2d 462 (1967). It is undisputed that the affidavit satisfied the first prong of the Aguilar test, since the informant received his information as a participant in a drug transaction during which he claimed to have seen the drugs in appellee's possession. The question remains whether or not the second prong of the test, regarding credibility, was satisfied. We believe it was.
The portion of the affidavit dealing with the affiant's belief that the informant was credible appears as follows:
"It is this officers (sic) belief that Terry Lynn Woodrow is being completely truthful because after being caught in the possession of marijuana and being a runaway from Loysville he reasonably believed that the only way to help himself was to cooperate with the police and inform the police as to the person who sold him the marijuana." Printed Record at 28a.
In examining this affidavit, it behooves us to recall, as Justice Frankfurter pointed out in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), that the magistrate issuing the warrant ". . . need not have been convinced of the presence of narcotics [at the place to be searched] . . .," rather, there need only be a ". . . substantial basis for him to conclude that narcotics were probably present . . ." Id. at 271, 80 S.Ct. at 736 (emphasis added). Additional guidelines for reviewing cases such as this were provided in United States v. Ventresca,
[ 252 Pa. Super. Page 6380]
U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), where the Court stated:
". . . when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely ...