Louise G. Herr, Assistant District Attorney, Lancaster, with her D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellant.
Samuel M. Mecum, Lancaster, Michael Jay Minney, and Glazier, Minney, Mecum & Kohr, Lancaster, submitted a brief for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
This Commonwealth appeal*fn1 arises from an order of the court below suppressing evidence seized pursuant to a search warrant executed in the nighttime, and granting the defendants a new trial. The sole issue for our consideration is whether the trial court erred in its determination that no
reasonable cause existed to justify the night search. For the reasons that follow, we hold that it did, and therefore reverse the order entered below.
On January 31, 1976, John Thompson, an attorney, telephoned the Pennsylvania State Police and informed Trooper George Taylor that, by the use of an extension telephone, he had just overheard several conversations between his son and appellee Baldwin concerning an impending sale of marijuana. Thompson related the information that Baldwin had possession of four pounds of marijuana that he had difficulty selling, and that Baldwin expressed a desire to sell some of the substance to the juvenile. The informant also gave a complete description of the juvenile, and stated that the sale would take place at Baldwin's residence at approximately 8:00 P.M.
Trooper Taylor and another officer then drove to Baldwin's residence, and at approximately 8:15 P.M., a car arrived and a juvenile answering the description given by the informant got out of the car and entered the residence. Within a few minutes, the juvenile came out of the apartment carrying a paper bag, got in the car, and was driven away. The officers followed, and stopped the car about one-half mile from the Baldwin residence. The driver of the vehicle consented to a search of the automobile, which yielded a paper bag containing approximately one pound of marijuana. Armed with this information, Trooper Taylor proceeded to the office of a District Justice, where he related the above information in an affidavit for a search warrant. The officer also stated in the affidavit that he had been informed by an undercover agent that Baldwin was a drug dealer, and he requested authorization for a nighttime search based on his belief that there was more marijuana at the Baldwin residence which could be sold or given away before morning. The magistrate issued a search warrant to be served day or night at about 1:00 A.M. The warrant was served on Baldwin shortly thereafter at his residence, and the ensuing search yielded 174 ounces of marijuana.
Baldwin and his co-lessee Neidig were thereupon charged with possession with intent to deliver a controlled substance. Pre-trial suppression motions were denied, and both defendants were found guilty by a jury. Following argument on post-trial motions, however, the trial judge issued an order suppressing all evidence seized pursuant to the search,*fn2 and granted a new trial. This appeal followed.
Pa.R.Crim.P. 2003(c) provides that "[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search." To date, our appellate courts have neither passed upon this provision of the criminal rules*fn3 nor interpreted the reasonable cause clause of subsection (c). The court below, however analyzed the reasonable cause standard of Rule 2003(c), and decided that reasonable cause is synonymous with the probable cause standard set forth in subsections (a) and (b). We disagree. The Rule is clear that probable cause is required for the issuance of a search warrant authorizing a daytime or nighttime search. However, due to the greater intrusion upon individual privacy occasioned by a nighttime search, some greater justification than that required for a daytime search ...