Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
Thomas J. Glenn, Jr., Assistant District Attorney, Wilkes-Barre, and Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 435]
This is an appeal from a conviction of possession of a controlled substance.*fn1 Appellant's sole claim is that the facts alleged in the warrant affidavit were insufficient to constitute probable cause for the issuance of a search warrant. We agree with the issuing magistrate and the lower court that probable cause was shown, and we therefore affirm the judgment of sentence.
On April 17, 1975, pursuant to a warrant, local police entered and searched appellant's room in a college dormitory. The search garnered 69.0 grams of marijuana, and on the basis of this evidence appellant was convicted and sentenced to a two year term of probation.*fn2
The affidavit of probable cause in the application for the warrant stated as follows:
"On 4/17/75 the above affiant received certain information from a confidential informant which is the basis of the probable cause for the issuance of this search warrant, a search warrant for the person and premises of Richard Forster located at 133 N. Franklin st, Wilkes-Barre, Pa room 720, Holy Cross Hall. On April 15, 1975 on the Kings College Campus the informant observed Richard Forster hand to a W/F age approx 19, approx 5'5", long
[ 253 Pa. Super. Page 436]
blond hair, heavy set, a tin foil packet in exchange for $15.00. During the transaction the informant overheard Richard say that it was good T.H.C. and that he still had an ounce left. The informant approached the girl when Richard left and stated that the informant was interested in buying some T.H.C. however could not remember the name of the fellow she had just bought from, and she stated 'Oh that was Richard Forster and that he was at room 720.' The informant later pointed Richard out to the affiant. I verily believe that the informant is very reliable and the information received is true and correct, because information received in the past from this informant has led to the arrest and subsequent convictions of certain individuals on 6/5/74 R.B., 6/11/74 J.M., 9/18/74 J.K., and 10/15/74 J.L.J. Sworn to (or affirmed) and subscribed to before me this date 4/17/75 --"
The requisites for establishing probable cause for issuing a search warrant in a situation where the affiant's information has been provided by an informant are found 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). First, the affidavit must include the underlying circumstances supporting the informant's conclusion that the contraband to be seized will be found at the place to be searched. Second, the affidavit must present the circumstances justifying the affiant's belief in the reliability of the informant.
In the instant case, appellant does not challenge the sufficiency of the affidavit to establish the informant's trustworthiness. It is, however, specifically asserted that the facts therein did not provide probable cause to believe that drugs would be found in appellant's dormitory room.
In its analysis, the dissent finds this case to be controlled by the result in Commonwealth v. Kline, 234 Pa. Super. 12, 335 A.2d 361 (1975).*fn3 Reading Kline, however, we find that it does not dictate ...