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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. FOX (06/28/79)

decided: June 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM J. FOX, APPELLANT



No. 332 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of York County, No. 1464 October Sessions, 1975.

COUNSEL

John R. Gailey, Jr., York, for appellant.

Donald L. Reihart, District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

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

Author: Price

[ 267 Pa. Super. Page 343]

This appeal arises from denial in the court below of appellant's motions in arrest of judgment and for a new trial, following his conviction after a non-jury trial of possession of a controlled substance*fn1 and possession with intent to deliver.*fn2 On appeal, appellant asserts that his right to a speedy trial was violated, that there was no probable cause to support his warrantless arrest, and that the suppression court erroneously restricted defense counsel's cross-examination of the arresting officer.*fn3 For the reasons set forth herein, we remand the case to the court below.

We first consider appellant's attack on probable cause. On October 10, 1975, Trooper Robert Kessler, Pennsylvania

[ 267 Pa. Super. Page 344]

State Police, received a telephone call from a confidential informant with whom he agreed to meet. When the two met at approximately 7:40 p. m., the informant led Trooper Kessler to 3107 East Market Street, York, the residence of one Benjamin Mathis, where he said he had visited earlier that day. While there, the informant observed drugs and related paraphernalia and heard Mathis' side of a certain telephone conversation. From that conversation and arrangements he then made with Mathis for a drug purchase, he concluded that appellant and a female companion were to come by the premises within a short time to deliver a quantity of cocaine. Trooper Kessler took the informant back to his car, parked nearby, and, at approximately 9:00 p. m., the trooper, armed with neither a search nor arrest warrant, returned to East Market Street with a group of police officers to await appellant's arrival. An unmarked police car, hood open and blinkers flashing, was positioned to block the driveway to 3107 East Market. At approximately 9:25 p. m., appellant and a female companion arrived in a car matching the description given by the informant. As appellant approached the house, he was ordered to raise his hands into the air. He dropped a shaving kit to the ground, a search of which revealed the controlled substances and paraphernalia that led to his conviction.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court ruled that before a magistrate may issue a warrant, he must be supplied with sufficient evidence to permit him to make an independent judgment of the informant's reliability. Subsequent to Aguilar, the Supreme Court stated that the judgment required of a magistrate in passing on the validity of an affidavit is the same as that required of an officer in judging probable cause for a warrantless arrest, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

"[L]ess stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual

[ 267 Pa. Super. Page 345]

    basis supporting the officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment." Whiteley v. Warden, ...


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