No. 274 April Term 1976, Appeal from the Judgment of Sentence of November 19, 1975, of the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division, at No. 478 of 1974.
James M. Keller, Ellwood City, for appellant.
Joseph S. Walko, District Attorney, Beaver, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., notes dissent. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 530]
Appellant-defendant was convicted by a jury of possession with intent to deliver a controlled substance, specifically six pounds of marijuana.*fn1 Post verdict motions were denied, sentence imposed, and this appeal followed.
The issues presented by this appeal involve a challenge to the sufficiency of a search warrant, and an ineffective assistance of counsel claim.
[ 258 Pa. Super. Page 531]
The first assignment of error is directed to the sufficiency of the search warrant by which evidence was recovered from appellant's house. The affidavit supporting the warrant recites that the informant "observed the subject, William Tatum, carrying into his apartment building, 303 Brighton Homes, . . . a suitcase and a shopping bag containing marijuana . . ." Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it to be. Suspicions or belief that a criminal act is being committed is insufficient to support a warrant. See Commonwealth v. Brown and Love, 243 Pa. Super. 285, 365 A.2d 853 (1975), and Commonwealth v. Emerich, 225 Pa. Super. 163, 310 A.2d 390 (1973).
In Commonwealth v. Falk, 221 Pa. Super. 43, 290 A.2d 125, 126 (1972) this court examined the case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) and concluded that "the Supreme Court indicated that an affidavit must contain the underlying 'facts and circumstances' from which a magistrate could find probable cause . . . One of the necessary underlying facts is the manner in which the informant came by his information."
In the present case, the informant told the affiant that he saw the appellant carrying a suitcase, and a shopping bag, but he did not tell him when or how he acquired the knowledge that they contained marijuana. Without the disclosure of those additional facts and circumstances, we must conclude that the statement that they contained marijuana was a suspicion or belief, and as such insufficient to support the warrant. There is no other corroborating evidence to support the informant's statement.
The second argument raised by appellant challenges the reliability of the informant. This affidavit recites that the informant is "a reliable individual who is a citizen of Beaver County. . . . Known to me to be reliable on other pertinent information given to our Bureau in which this information was checked out and ...