No 1676 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Schuylkill County, Criminal, at No. 561 September Term, 1976.
Anthony J. Urban, Assistant Public Defender, Pottsville, for appellant.
Charles M. Miller, Assistant District Attorney, Frackville, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., files a dissenting statement in which Spaeth, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 270 Pa. Super. Page 395]
On July 30, 1976, pursuant to a warrant, appellant's motel room was searched and he was arrested and charged with several violations of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Following a jury trial, appellant was found guilty of violating Sections 13(a)(16) and 13(a)(31) of the aforesaid Act. The sole issue raised by this direct appeal is whether the lower court erred in denying appellant's motion to suppress evidence seized during the search of his motel room.*fn2
Appellant contends that the information set forth in the affidavit in support of the search warrant was insufficient to establish probable cause. More specifically, it is asserted that the affidavit was constitutionally deficient in that it failed to inform the issuing authority "of some of the
[ 270 Pa. Super. Page 396]
underlying circumstances from which the [affiant] concluded that the informant, whose identity need not be disclosed . . . was 'credible' or his information 'reliable'" (citation and footnote omitted). Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). See also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972). The affidavit in question, which was applied for and obtained on July 29, 1974, recited the following:
"That prior to the above date writer received confidential information which was true and reliable that the subject Steven MOYER was dealing and doing drugs and that he had an involvement with the Minersville Boro Police as to drugs. That on 28 Jul 76 Officer Joseph MURTIN received confidential information from a reliable true and correct source that the subject was partying and involved in drugs up at Rm # 2, of the Pottsville Motor Inn and that he had a drug party the night before. MURTIN also had information that MOYER was dealing in hash and marijuana. That on 29 Jul 76 writer received information from an informant that MOYER had a party at his room (# 2 of the Pottsville Motor Inn, Pottsville, Pa.) between 10 PM and midnight of 27 Jul 76 where at least 2 cars full of persons were there including some young girls. On 29 Jul 76 an informant indicated that MOYER was dealing out of this room and that he was to get some more drugs in to deal with. That on 29 Jul 76 informant furnished the writer with a small amount of marijuana which was obtained from MOYER'S room and that the informant observed other vegetable matter, similar to that furnished to affiant in the room. That between 5:45 PM and 6:00 P.M. 29 Jul 76, MOYER had 3 persons come to his room with something and then leave. That the writer received information that he was to be holding drugs later on 29 Jul 76. That the above information is to be true correct and reliable and honest."
[ 270 Pa. Super. Page 397]
The first component of the Aguilar-Spinelli probable cause equation is satisfied where the affidavit describes, among other things, the manner in which the informant gathered his information. Commonwealth v. Soychak, supra; Commonwealth v. Samuels, 235 Pa. Super. 192, 340 A.2d 880 (1975). Instantly, the second informant referred to in the affidavit furnished the affiant with a small amount of marijuana that he had obtained from appellant; and, in addition, advised the affiant that he had observed similar contraband in appellant's room. From this the issuing authority would be clearly justified in concluding that this information, if worthy of belief, was sufficient to establish probable cause to search appellant's room.
The crux of this case, however, is whether the second prong of the Aguilar-Spinelli test has been met. In other words, was the issuing authority furnished with sufficient information to make an independent determination that the informant was either credible or giving reliable information. While the question is admittedly close, we ...