Timothy L. McNickle, Grove City, for appellant.
David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Cercone, President Judge, and Montgomery and Lipez, JJ.
[ 277 Pa. Super. Page 414]
Appellant was found guilty, after a non-jury trial, of three counts of burglary.*fn1 The court below granted appellant's motion to arrest judgment on one of the counts (the evidence being insufficient), but imposed sentence on the remaining two. Since we agree that the affidavit contained in the application for the search warrant (in the execution of which incriminating evidence was seized from appellant's home) did not present to the issuing authority information sufficient to justify his issuing the warrant, we need not reach appellant's other assignment of error, viz., that the evidence was insufficient to allow conviction of the other two counts as well.*fn2
This case arose out of the burglary of three summer cabins in Mercer County, Pennsylvania, in the course of which numerous items, including guns, appliances and camping equipment, were taken. In the section of the application for the search warrant detailing the facts on which the affiant, a local police officer, based his belief of probable cause, he stated, in relevant part:
[ 277 Pa. Super. Page 415]
On 4 May 1977, a confidential informant who has given me information that has proven to be reliable in the past, gave me information concerning these burglaries. Informant states that on 2 May 1977, the informant was in the above described trailer rented by John Mathieson. and [sic] saw two items that were stolen in these burglaries, one being an Ithaca Featherweight .12 gauge shotgun, stolen from the Stanton burglary and the other item being a Sylvania portable black and white 19" TV, stolen from the Newsome burglary. Informant advised me that statements were made to a second individual who does not want to be identified because he is fearful of his life. The second individual advised that around 1 May 1977, he was at the Mathieson trailer [sic] at that time, Mathieson, Ronald Bowers, R.D. # 1, Grove City, Pennsylvania, and William Stewart of R.D. # 1, Volant, who is not [sic; now] living with Mathieson, made statements that they committed these tow [sic] burglaries as well as other cottage burglaries that occurred in the area about this same time. Informant went on to relate that Mathieson was attempting to sell two guns from the Scranton burglary to a third individual who is a 21 year old white-male [sic] from the Volant area who also does not want to be identified because he is fearful of his life. On 5 May 1977, I interviewed the 21 year old Volant area person at his place of employment and he advised me that William Stewart a 17 year old juvenile (now living at the Mathieson trailer), came to his place of employment and attempted to sell him two guns stolen in the Stanton burglary. A few days prior to Stewart coming to his place of employment he states that he was at the Mathieson trailer and he saw a rifle and a pistol stolen at the Stanton burglary and the portable TV stolen in the Newsome burglary. He stated that Mathieson, Bowers and Stewart were at the trailer when he was there and all these made statements inplicating themselves in these two burglaries as well as other similar home burglaries [sic]
On 5 May 1977, I interviewed a Ronald William Baughman (Slug) in regards to these burglaries. Baughman
[ 277 Pa. Super. Page 416]
advised (Baughman lives in a home beside the Mathieson trailer) me he owns the trailer that Mathieson is living in and has rented it to him for the past two months for $100.00 a month. States that the Stewart boy is a ward of the Mercer County Court and is under his control. he [sic] receives monthly care payments for Stewart from Mercer County. He states that Stewart is a senior at Grove City High School and he permitted him to move into the trailer with Mathieson. He also advised me that at the present time, Mathieson, Bowers and Stewart are on a fishing trip at Pymatuning State Park and they are to be back Sunday 7 May 1977. He advised that he personally saw them load fishing equipment, sleeping bags, coleman lanterns, and stoves in a green 71 Plymouth operated by Mathieson and a red pickup truck operated by Bowers. Equipment similar to that loaded in these vehicles for the fishing trip were reported stolen from the Stanton and Newsome burglaries.
This mass of verbiage says, essentially, that the affiant received information from three persons: a confidential informant who, the officer stated, had given him reliable information in the past (hereinafter referred to as "Informant A"); "a 21 year old white-male [sic] from the Volant [Pa.] area" who also wished to remain anonymous (Informant B); and Baughman, appellant's landlord. Informant A received, and transmitted to the affiant, information from another confidential source (Informant AA). Except for Baughman, whose information lends the application no support, the affiant provided nothing more than the above hearsay.
"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." Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159, 162 (1933). Warrant applications grounded in hearsay must satisfy ...