No. 1807 October Term, 1977, Appeal from the Order of the Court of Common Pleas of the Forty-Third Judicial District, Monroe County Branch, Criminal Division, at No. 153 April Term, 1977.
Charles P. Eyer, Assistant District Attorney, Stroudsburg, with him Joseph M. Farrell, Harrisburg, for Com., appellant.
William R. Lee, Scranton, with him Peter T. O'Malley, Scranton, for appellee, Ryan.
George W. Westervelt, Jr., Stroudsburg, for appellee, Casano.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Jacobs, President Judge, did not participate in the consideration or decision of this case. Spaeth, J., dissents for the reasons stated in his dissenting opinion in Commonwealth v. Shaheen,
[ 257 Pa. Super. Page 539]
Appellant, the Commonwealth, contends that the lower court erred in quashing a search warrant and suppressing all evidence seized following its execution. We agree and reverse the order of the lower court.
The facts of the instant case are not in dispute: At approximately 1:30 a. m., on March 1, 1977, Squire Earl Ammerman, the issuing authority*fn1 for Monroe County Magisterial District 43-3-02, issued a warrant to search premises located within Monroe County, but outside of his magisterial district. The search of the house yielded evidence which led to the instant prosecution. Appellees, occupants of the house, were arrested and arraigned before Squire Marjorie Shumaker, the district justice in whose district the premises are located. On May 25, 1977, both appellees filed a motion to suppress, seeking to quash the search warrant and to suppress all evidence seized in the search. At a hearing on June 3, 1977, Harold McElroy, a Pennsylvania State Police officer and affiant in the warrant, testified that during the night of February 28, 1977, he tried three times without
[ 257 Pa. Super. Page 540]
success to contact Squire Shumaker for the purpose of procuring a search warrant. Eventually, he reached Squire Ammerman who issued the warrant. At the close of the officer's testimony, the lower court quashed the search warrant and suppressed the fruits of its execution. In its opinion, the lower court stated that because the territorial jurisdiction of an issuing authority is limited to the district in which he or she was elected, the district justice in the instant case was without power to issue the search warrant. The Commonwealth has appealed the suppression order,*fn2 and the two cases have been consolidated for our review.
Appellant contends that the lower court erred in holding that the issuing authority was without jurisdiction to issue the instant search warrant for premises located outside of the issuing authority's district, but within the same county. Rule 2001, Pa.R.Crim.P., states that "[a] search warrant may be issued by an issuing authority having jurisdiction of the person or place to be searched." The rule offers no guidance, however, as to the territorial scope of the issuing authority's jurisdiction.*fn3 In Commonwealth v. Shaheen, 257 Pa. Super. 393, 390 A.2d 1294 (1978), decided this day, we confronted directly the question of the territorial
[ 257 Pa. Super. Page 541]
parameters of magisterial jurisdiction.*fn4 In Shaheen, supra, 257 Pa. Super. 393, 390 A.2d at 1294, we said: "We find compelling reasons for holding that magisterial jurisdiction is county wide. First, in sparsely populated areas with few issuing authorities, the need for county wide magisterial jurisdiction is often imperative for effective law enforcement. Moreover, even in more populated counties, officials frequently need the investigative flexibility which county wide jurisdiction would confer." (footnote omitted)
The instant case demonstrates the need for such a rule. In the application for the search warrant, Officer McElroy stated that a confidential informant reported on February 28, 1977, that a drug transaction was scheduled to occur inside the house to be searched in the early morning hours of March 1, 1977. McElroy testified at the suppression hearing that he first attempted to reach Squire Shumaker, the issuing authority in whose district the premises to be searched were located. Only after his three attempts proved fruitless did he contact Squire Ammerman who issued the warrant. McElroy further stated that of the seven issuing authorities in Monroe County at the time he sought the instant warrant, Squire Ammerman was the only issuing authority in the county available ...