No. 1807 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division at No. 712-78.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Anthony J. Giangiulio, Norristown, for appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 264 Pa. Super. Page 98]
This is an appeal from an order of the court below granting appellee's motion to suppress the physical evidence seized pursuant to a search warrant executed at the appellee's residence at an address within Montgomery County. The physical evidence involved is approximately fifteen (15) pounds of marijuana, and the appellant certifies and the court below found that the physical evidence is critical to the Commonwealth's presentation of the case. The Commonwealth is therefore clearly entitled to bring this appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).
The sole issue before us is whether or not the affidavit supporting the issuance of the search warrant provided a sufficient basis for the magistrate to have had probable cause established to justify issuance of the search warrant. We find by applying the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and subsequent Pennsylvania authorities on the point that the court below erred in the suppression, that the order should be reversed and the case remanded for trial.
President Judge Lowe, of the Court of Common Pleas of Montgomery County, the court below, issued the order and able opinion in support of his order. The facts set forth in that opinion are as follows:
[ 264 Pa. Super. Page 99]
"On February 22, 1978 Montgomery County Detective Timothy Woodward sought a search warrant for the residence of defendant Carl Gelfont. The complaint for the warrant read in pertinent part:
During the last 24 hours affiant interviewed a confidential and reliable informant. The information received from the confidential and reliable informant was that during the last 48 hours, while he (the informant) was present inside the residence located at 3918 Warfield Drive, Huntingdon Valley, he (the informant) observed a large quantity of suspected marijuana. The marijuana was in the possession of a white male known to the informant as Carl . . . Affiant checked the 'Coles Directorey [sic]' and learned thru that directory that the residence at 3918 Warfield Drive, Huntington [sic] Valley is owned by a Carl Gelfont and learned that a Pennsylvania Operators License is issued to a Carl Gelfont, d. o. b. 2/9/42, 3918 Warfield Drive, Huntington [sic] Valley. Affiant believes the informant to be reliable for the following reasons: The informant has never been arrested or a suspect in a crime. The informant has been gainfully employed for the majority of his adult life. The informant is also a registered voter in Montgomery County . . .
After a determination of probable cause, District Justice Everett P. Arnold issued the warrant.
Detective Woodward proceeded to the defendant's residence, executed the warrant, seized contraband, and arrested the defendant for violations of the Controlled Substance, Drug, Device and Cosmetic Act. Act of April 14, 1972, P.L. 233, 35 P.S. 780-113(a)(16), (30)."
The key words to the decision of the court below were the words "suspected marijuana" in the sentence of the affidavit ". . . while he (the informant) was present inside the residence located at 3918 Warfield Drive, Huntingdon Valley, he (the informant) observed a large quantity of suspected marijuana." (emphasis supplied).
Speaking to this point and discussing Aguilar v. Texas, supra, the opinion of the court below explains:
[ 264 Pa. Super. Page 100]
"Each prong of the test must be analyzed separately. The first requirement is an explanation of the underlying circumstances which caused the informant to believe that fruits of a crime would be found. This warrant merely states that the informant 'observed a large quantity of suspected marijuana.' (emphasis added). The affidavit stated that the suspected marijuana was in the possession of a certain individual named Carl at a designated location. This portion of the affidavit lacks the requisite underlying 'facts or circumstances' which gave rise to the informant's conclusions. There is nothing in the affidavit to indicate that the informant had any expertise in marijuana or that he could distinguish marijuana from other vegetable substances of similar appearance and characteristics. Unquestionably, before a lay informant's opinion can support the issuance of a search warrant, it must be demonstrated he has had some prior elementary experience with the subject matter of the opinion. The Supreme Court of the United States forbids issuance of a warrant on mere affirmance or belief. In Nathanson v. United States, 290 U.S. 41 [54 S.Ct. 11, 78 L.Ed. 159] (1933), a warrant was issued upon the sworn allegation that the affiant 'has cause to suspect and does believe' that certain merchandise was in a specified location. The Court stated:
Under the Fourth Amendment an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. Id. 47 [54 S.Ct. 11]. See also United States v. Harris, 403 U.S. 573 [91 S.Ct. 2075, 29 L.Ed.2d 723] (1971). The informant merely suspected that marijuana was present at defendant's residence. Mere affirmance is insufficient. There is no allegation that the informant, a reputable, law-abiding citizen, had any knowledge of ...