Nos. 776, 777 and 778 October Term, 1977, Appeal from the Order of December 30, 1976, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 692-697, October Term, 1976.
Eric B. Henson, Assistant District Attorney, Philadelphia, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.
James Peruto, Philadelphia, for appellee, Matthew Swint.
Ricki Sanders, Philadelphia, for appellees, Diane Swint and Rodney Isaacs.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and a dissenting opinion in which Hoffman, J., joins. Van der Voort, J., dissents. Watkins, former President Judge did not participate in the consideration or decision of this case.
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This an appeal by the Commonwealth from an order granting appellants' suppression motions.*fn1 Excluded from evidence were 128 glassine packets and one brown bag containing a tan powder determined to be heroin. These items were seized pursuant to a search warrant. Also suppressed were a bail slip and a notice to appear in the name of Matthew Swint, an envelope addressed to Mrs. D. Swint, and the statement of Matthew Swint to Officer Dennis Carroll when Swint entered the dwelling being searched and asked, "What are you guys doing in my house?"
At 1:05 p. m. on July 16, 1976, Officer Dennis Carroll entered a house at 2706 Federal Street, Philadelphia, under the authority of a search warrant signed by Judge J. Earl Simmons of the Philadelphia Municipal Court. Appellants Diane Swint and Rodney Isaacs were found in the third floor front bedroom. A search of that bedroom yielded four bundles of glassine packets containing a tan powder, which were wrapped in a rubber band, on top of the chest of drawers. Tin foil containing two more bundles of glassine packets was discovered on the top shelf of the bedroom closet. A total of 128 glassine packets containing the tan powder were seized. Also taken was a cardboard box with a number of empty glassine packets inside. Additional items found on top of the chest of drawers included the bail slip, the notice to appear and the addressed envelope. In the
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kitchen, Officer Carroll discovered a paper bag containing more of the tan powder.
The lower court's order of suppression was based on the fact that the issuing authority, Judge Simmons, had written a date on the search warrant when he signed it which was one day earlier than the date of the affiant's application for the warrant. On this ground the court held that the search warrant was "patently defective on its face in that it could not lawfully be issued before it was applied for." This finding, however, does not go far enough.
The warrant affidavit states that Officer Carroll received information on July 15, 1976, about drug sales at 2706 Federal Street. During the afternoon of the same day, the officer conducted a surveillance of the house. On the basis of the facts known from his informant and his observations during the surveillance, Officer Carroll applied to Judge Simmons for a search warrant on July 16, 1976. The time of issuance noted on the warrant is 12:10 p. m., and the warrant was executed at 1:05 p. m. on July 16, 1976. At the suppression hearing, Officer Carroll testified to these same facts.*fn2 He specifically stated that the warrant was obtained, signed by Judge Simmons and executed on July 16, 1976. (R 25a, 34a, 35a). The suppression court did not determine or even suggest that the warrant herein was signed in blank by the issuing authority and filled in at a later time. There is nothing in the record to intimate any such impropriety. The only explanation which remains, then, is that the issuing authority inadvertently affixed the wrong date to the warrant. It is the legal effect of such an inadvertent error which must be determined.
Pa.R.Crim.P. 2005 requires, inter alia, that a search warrant shall specify the date and time of its issuance. Pa.R.Crim.P. 2003 ...