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COMMONWEALTH PENNSYLVANIA v. RUTH ELLEN HABERMAN (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
RUTH ELLEN HABERMAN, AND DAVID ANDREW RITENOUR, APPELLEES



No. 181 April Term, 1977, Appeal from the Order dated September 28, 1976, granting Appellee's Motion to Suppress in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7605156A and CC7605157A.

COUNSEL

Charles W. Johns, Assistant District Attorney, with him Robert E. Colville, District Attorney, Pittsburgh, for Com., appellant.

H. David Rothman, Pittsburgh, with him Charles F. Scarlata, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 257 Pa. Super. Page 129]

Ruth Haberman and David Ritenour were charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act as the result of a search of the residence of Ruth Haberman. The search was conducted pursuant to a warrant issued on the basis of information received from a confidential informant. The lower court's order suppressing the evidence gathered in the search triggered this Commonwealth appeal.*fn1

The two-pronged test for determining whether information received from a confidential informant supplies probable cause for the issuance of a search warrant is well known: the issuing authority must be apprised of the underlying circumstances from which the informant drew his conclusions that criminal activity was taking place, and the

[ 257 Pa. Super. Page 130]

    issuing authority must be provided with information justifying a conclusion that the informant is reliable. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Pennsylvania Rule of Criminal Procedure 2003 imposes the additional requirement that the affidavits themselves must show that these tests were satisfied.

Spinelli, Aguilar, and most cases dealing with search warrants issued on the basis of revelations of informants deal with situations in which the affiant, usually a police officer, recites hearsay information received from an unseen and unidentified informant. The instant case is different. The warrant is supported by two affidavits: The sworn application itself, signed by a police officer, and a supplemental affidavit, signed by the informant with an X. The supplemental affidavit includes the following statement:

"I hereby swear that I went to the residence of RUTH HABERMAN, 5701 Weedmont St., Pittsburgh, Pa. 15217 (first floor dwelling) no later than five days ago and at that time, was under the surveillance of Tprs. Ceyba and Weis. I was admitted by Ruth HABERMAN and during the course of my stay, which was at least fifteen minutes, I had occasion to observe approximately two pounds of marijuana located in a closet area off the rear bedroom. I also observed another approximate two pounds of marijuana located in a dresser drawer of this rear bedroom. This marijuana was contained in plastic zip lock bags and HABERMAN stated that it was marijuana and was for sale for a price of [the price was deleted]. I am completely aware of the look, texture and smell of marijuana and have on at least twenty prior occasions, been given the opportunity to purchase this marijuana for myself, from Ruth HABERMAN. I have also observed a large scale utilized by HABERMAN for the weighing of this marijuana.

After departing the HABERMAN residence, I met with Tprs. Ceyba and Weis and gave ...


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