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COMMONWEALTH PENNSYLVANIA v. JOSEPH J. NYCZ (01/11/80)

filed: January 11, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH J. NYCZ



No. 2657 October Term, 1978, Appeal from the Order entered on October 20, 1978 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 2474 of 1978

COUNSEL

David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellant.

James P. McHugh, Chester, submitted a brief on behalf of appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Sugerman

[ 274 Pa. Super. Page 307]

The Commonwealth of Pennsylvania, Appellant here, has appealed an Order of the lower court suppressing bookmaking paraphernalia seized pursuant to a search warrant. The lower court determined that the information set forth in the affidavit of probable cause upon which the search warrant issued was "stale," and that is the single issue presented in this appeal.

Appellant has certified that the appeal involves a pure question of law and that the pre-trial Order of the lower court suppressing the physical evidence was effectively terminated or will substantially handicap the prosecution. We have reviewed the record of the suppression hearing below and find support for Appellant's position. Accordingly, we hear the appeal. Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977); Commonwealth v. Benjamin, 260 Pa. Super. 1,

[ 274 Pa. Super. Page 308393]

A.2d 982 (1978); Commonwealth v. Kunkel, 254 Pa. Super. 5, 385 A.2d 496 (1978).

On May 5, 1978, immediately following a search of his person and his automobile, Appellee was arrested and charged with bookmaking. The search was conducted pursuant to a search warrant obtained from a District Justice the same day by a trooper of the Pennsylvania State Police, upon his affidavit. Following a preliminary hearing, Appellee was bound over for trial and an information was thereafter filed against him.

During the search, gambling paraphernalia was allegedly seized from Appellee including betting slips, and pre-trial, Appellee moved to suppress the fruits of the search. On October 23, 1978, following a hearing, the lower court suppressed all evidence seized in the search upon finding that the information contained in the affidavit for the search warrant was either "stale" or innocuous, and accordingly, the lower court concluded that no probable cause existed at the time the warrant issued.

I.

Appellant first contends that observations of Appellee made by a police officer on the day the warrant was issued, and the day before, support a finding of present probable cause. It is well settled that probable cause for the issuance of a search warrant must be established at the time the warrant is issued, Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Hagan, 240 Pa. Super. 444, 368 A.2d 318 (1976), and "stale" information will thus not support a finding of present probable cause. Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975); Commonwealth v. Albert, 264 Pa. Super. 390, 399 A.2d 1106 (1979).

The standard by which we are guided in examining the affidavit underlying a search warrant is well stated in Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971):

[ 274 Pa. Super. Page 309]

"In order for the issuance of a search warrant to be constitutionally valid, the issuing officer must reach the conclusion that probable cause exists at the time he issues the warrant. Such a decision may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Schoeneman v. United States, 317 F.2d 173 (D.C. Cir. 1963); and Dandrea v. United States, 7 F.2d 861 (8th Cir. 1925). See also IV Wharton Criminal Law and Procedure ยง 1546 (12th Ed. 1957), and authorities cited in 100 A.L.R.2d 525 (1965). If the issuing officer is presented with evidence of criminal activity at some prior time, this will not ...


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