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COMMONWEALTH PENNSYLVANIA v. THOMAS J. TONER (02/06/81)

filed: February 6, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS J. TONER, APPELLANT



No. 1457 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, No. 2069 of 1978.

COUNSEL

Joseph D. Grandinetti, Jr., Trevose, for appellant.

Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.

Hester, Wickersham and Lipez, JJ. Lipez, J., files a dissenting opinion.

Author: Hester

[ 289 Pa. Super. Page 201]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County. The procedural history and facts relevant to the issues on appeal are as follows:

On July 5, 1978, James Marble, a Pennsylvania State Policeman, received an anonymous tip that there was a large quantity of marijuana in Apt. 5, Building H of the Knightsbrook Apartments in Bucks County. The anonymous caller further indicated that she had seen numerous people including a Diane Marie Quinn engaged in the act of smoking marijuana. Trooper Marble was unable to locate the caller although he attempted to do so. After verifying that Diane Marie Quinn was one of the persons living in the apartment, Marble conducted a surveillance. On July 6, he detected a strong odor of marijuana coming from the apartment by placing his nose near the crack between the floor and the door. On Monday, July 10, when there were enough state troopers to assist in the execution of the warrant, a search warrant was obtained. Upon execution, appellant, who shared the apartment with Quinn was arrested and charged with possession and possession with intent to deliver nine pounds of marijuana. After appellant's motion to suppress was denied, he proceeded to trial non-jury and was found guilty of both charges. After post trial motions were denied, he was sentenced to four to twenty-three months imprisonment. This timely appeal followed.

[ 289 Pa. Super. Page 202]

Appellant concedes that probable cause to search existed on July 6, 1978, but argues that the information was stale on July 10, the date of issuance of the warrant.

We have held that in determining whether the lapse in time prior to the issuance of a warrant is so great that there no longer is probable cause to believe that the items to be seized are still on the premises, the magistrate should examine the facts and circumstances of the particular case before him. Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974). "The information supplied the magistrate must be tested with a common sense non-technical, ungrudging, and positive attitude." Rosencranz v. U. S., 356 F.2d 310, 314 (1st Cir. 1966); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973).

We note that the anonymous tip received by the officer indicated marijuana had been smoked over the past 7 days in the apartment by a number of white males and females including Diane Marie Quinn, who lived there. The officers own investigation corroborated the fact that marijuana was being smoked in this particular apartment. Although the officer did not indicate a specific reason for the delay, he did testify that on July 10, 1978, there were sufficient State Police officers available to execute the warrant. We take judicial notice of the fact that July 4th was a holiday, and the minimal delay occurred over a holiday weekend. A review of the cases cited by appellant discloses that delays substantially longer than in the instant case were involved therein. Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975) (5 months delay); Commonwealth v. Hagan, 240 Pa. Super. 444, 368 A.2d 318 (1976) (1 1/2 months delay); Commonwealth v. Eazor, 455 Pa. 320, 312 A.2d 398 (1973) (2 months delay).

We have held that nine days delay between the commission of a theft and the issuance of a search warrant does not render the information stale. Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974). The information received here was that Diane Quinn and others in the

[ 289 Pa. Super. Page 203]

    apartment were in possession of and were smoking large quantities of marijuana over a period of seven days prior to the call received by the police. There was, therefore, probable cause for the magistrate to believe under the facts herein, that ...


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