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RANDY ALLEN BURTON AND PAUL H. BURTON (10/20/78)

decided: October 20, 1978.

IN RE RANDY ALLEN BURTON AND PAUL H. BURTON, MINORS, APPELLANTS


Nos. 972 and 973 April Term 1976, Appeal from Order dated July 1, 1976, adjudicating delinquency, and Order dated July 1, 1976, adjudicating disposition, of the Court of Common Pleas of Clearfield County, Pennsylvania, Juvenile Division, at Juvenile Docket Number 8, page 471 & Juvenile Docket 8, page 472 respectively.

COUNSEL

Richard H. Milgrub, Asst. Public Defender, Clearfield, for appellants.

Thomas F. Morgan, District Attorney, Clearfield, for appellee.

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

Author: Cercone

[ 259 Pa. Super. Page 21]

The sole issue raised by this appeal is whether the facts recited in an affidavit in support of a search warrant were sufficient to establish probable cause. Specifically, it is asserted that probable cause was lacking due to the affidavit's failure to set forth sufficient underlying circumstances from which the issuing authority could independently determine that the affiant's informer was credible or his information reliable. We agree.*fn*

Appellants, who are both juveniles, were adjudicated delinquent on the basis that they were responsible for the theft of a set of cymbals from the Curwensville Area High

[ 259 Pa. Super. Page 22]

School. The cymbals were seized from their home pursuant to a search warrant. The warrant was applied for by the Chief of Police of Curwensville Borough who, in the affidavit section of the application, stated as follows:

"This affiant has received information from a confidential informant that the informant has personally seen the above items at the residence located at 415 Scofield Street, Curwensville, Pa. on May 9, 1976. The above cymbals resemble and are the same make as those recently taken from Curwensville Area Schools. This affiant believes the information to be reliable because the informant has nothing to gain by informing. The family of the informant are noted upstanding citizens of the community. (Emphasis added).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and, as explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court set forth a two-pronged test to be applied by the issuing authority when probable cause is alleged to exist on the basis of information supplied by a confidential informant. As Mr. Justice Goldberg wrote:

"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.'" Aguilar v. Texas, supra, 378 U.S. at 115, 84 S.Ct. at 1514. (Footnote omitted.)

In other words, when evaluating hearsay information in a probable cause context, the issuing authority must be informed of the underlying circumstances from which the informant concluded that the contraband or evidence is located at certain premises; and, in addition, the ...


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