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filed: August 1, 1979.


No. 793 April Term 1976, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Div., at Nos. 7507803A and 7507797A.


Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.

James Kerry O'Malley and with him Robert W. Selko, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, P. J., concurs in the result.

Author: Spaeth

[ 268 Pa. Super. Page 300]

This appeal arises from an order granting appellees' motions to suppress the Commonwealth's evidence.

In September 1975, Sergeant Freedman and Officer Martin of the Ross Township Police Department in Allegheny County received information that a lottery was being conducted at a certain residence in Shaler Township.*fn1 After an investigation, the officers appeared before a magistrate whose jurisdiction included Shaler Township, and applied for a search warrant. The magistrate issued the warrant, and the officers informed the Shaler Township Police Department of the pending search. Allegedly, officers from the Shaler Township Police Department accompanied Freedman

[ 268 Pa. Super. Page 301]

    and Martin when the warrant was served and executed.*fn2 Evidence of gambling operations was discovered, and appellees were arrested and charged with gambling, poolselling, bookmaking and related offenses.

Appellees filed a motion to suppress the evidence, alleging, among other things, that the warrant was defective for having been issued to police officers who were acting beyond their jurisdiction. The lower court agreed, and suppressed the evidence. The Commonwealth appealed. However, in Commonwealth v. Kunkel, 254 Pa. Super. 5, 385 A.2d 496 (1978), a majority of this court believed that neither the record nor the Commonwealth's brief sufficiently established our jurisdiction to hear the appeal. Accordingly, disposition of the appeal was deferred to permit the Commonwealth to file a supplemental brief to establish our jurisdiction.

A brief has now been filed, which alleges the following:

[N]ot only was the gambling paraphernalia, such as notepads, telephones, and telephone bills, which appears on the inventory receipt form attached to the search warrant . . . suppressed but also while the officers were in the premises executing the search warrant, one of the officers plugged in the telephones and received sports' bets. This evidence is likewise dependent on the validity of the warrant and search. The Commonwealth thus avers that the Order appealed from in effect terminated the prosecution since no other admissible evidence remains.

Commonwealth's Brief at 7.

This statement satisfies the requirement that before an appeal may be taken by the Commonwealth from an order suppressing evidence, the Commonwealth must state in its brief that the order will terminate or substantially handicap the prosecution of the case, and explain why this is so. Commonwealth v. Kunkel, supra, 254 Pa. Super. at 11, 385

[ 268 Pa. Super. Page ]

Page 302Although Rule 2004 states, somewhat ambiguously, that "[a] search warrant shall be served by a law enforcement officer,"*fn5 the rule assumes, we believe, that the officer serving the warrant has authority to act as an officer at the place where the warrant is served, not at some other place. We do not agree with the lower court, however, that it follows from these propositions that the search warrant could not be issued to Freedman and Martin for service by the Shaler Township police. No statute or rule of criminal procedure requires that a search warrant be issued only to a person empowered to execute it. Indeed, the Rules of Criminal Procedure indicate that the contrary is true. Under Pa.R.Crim.P. 2006, any individual may be the affiant for a search warrant. Thus, Freedman and Martin, as Ross Township officers, could be affiants for a warrant in Shaler Township. The Official Comment to Pa.R.Crim.P. 2004 states that the officer who will execute the warrant need not be specifically designated in the warrant, but that any law enforcement officer may execute it. Thus, there is no requirement that the person to whom the warrant is issued also be the person who executes it.

Our difficulty with the lower court's holding may be illustrated by the following example: If a Shaler Township police officer had accompanied Officers Freedman and Martin when they appeared before the issuing magistrate, and if, after Freedman and Martin had completed their affidavit, the magistrate had issued the warrant to the Shaler Township police officer, and he had then delivered it to Freedman

[ 268 Pa. Super. Page 304]

    and Martin with instructions to take it to another Shaler Township police officer for execution, according to the lower court's holding no impropriety would have occurred. If this is so, we fail to see the impropriety of having the warrant issue directly to Freedman and Martin for delivery to the Shaler Township police.

The citizens of this Commonwealth have the right under the federal and state constitutions to be free of unreasonable searches and seizures. Enjoyment of this right has, in many instances, been abridged because a magistrate has issued a warrant on less than probable cause, or law enforcement officers have executed a properly issued warrant in an unreasonable manner. To curb the possibility of such abuses, our Rules of Criminal Procedure have set forth strict procedural requirements. However, it is difficult to suppose a case (although there may be one) in which a person's constitutional rights to be free of an unreasonable search and seizure might be abridged by ministerial steps occurring between the issuance of the warrant and its execution. In any event, the Rules of Criminal Procedure do not prescribe procedures for the delivery of the warrant from the issuing magistrate to the executing officer, nor do we believe that a prescription is necessary. Since appellees have not shown that their constitutional rights were infringed by the issuance of the warrant to Officers Freedman and Martin, the issuance was not a reason to suppress the Commonwealth's evidence. The order of the lower court will therefore be reversed.

As noted above,*fn6 however, the lower court did not take further testimony once it learned that in procuring the warrant, Officers Freedman and Martin had acted outside their jurisdiction. The record was therefore insufficient to enable the court to consider -- and the court did not consider -- appellees' claims that the evidence should be suppressed because 1) the warrant was executed by Freedman and Martin; 2) the scope of the search was excessive; 3) the warrant issued without probable cause; and 4) their arrest

[ 268 Pa. Super. Page 305]

    were illegal. Accordingly, the case must be remanded for another suppression hearing on appellees' remaining claims.

Reversed and remanded.

PRICE, J., dissents.

JACOBS, J., did not participate in the consideration or decision in the case.

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