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filed: April 3, 1981.


No. 2509 October Term 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division of Delaware County, at Nos. 1290, 1771, 1772 of 1979


Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.

Theodore Simon, Philadelphia, for Minton, appellee.

Carmen P. Belefonte, Media, for Smith and Scarlata, appellees.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Wickersham

[ 288 Pa. Super. Page 384]

This is an appeal by the Commonwealth from the lower court's order granting appellees' motions to suppress.*fn1 We reverse.

The facts underlying this appeal may be summarized as follows. On April 1, 1979, an undercover narcotics investigator for the Pennsylvania State Police obtained a warrant from a district magistrate to search a residence located at 309 East Springfield Road in Springfield Township, Pennsylvania. The warrant stated that the residence was possessed by Mr. and Mrs. Joseph Scarlata and that the items to be searched for were marijuana, narcotics paraphernalia, records, and monies of drug transactions. The warrant was executed, and, as a result of their search of the residence, the police seized approximately four hundred and two pounds of marijuana, a couple thousand grams of hash oil,

[ 288 Pa. Super. Page 385]

    some hash and some cocaine. Appellees were present when the warrant was executed, and were arrested and charged by criminal information with criminal conspiracy, possession of controlled substances and possession with intent to deliver controlled substances. Appellees filed pretrial motions to suppress, and, after a hearing, the lower court entered an order suppressing all physical evidence secured by the Commonwealth, all statements made by appellees and all fruits from the search of the residence.

In their pretrial motions to suppress, appellees argued that all evidence obtained as a result of the search should be suppressed because the affidavit accompanying the search warrant did not establish probable cause. The lower court agreed.

In the order to support a valid search warrant, an affidavit must provide a magistrate with information sufficient to persuade a reasonable person that there is probable cause for a search. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Stamps, 260 Pa. Super. 108, 393 A.2d 1035 (1978). While we have held that more evidence is needed than would constitute mere suspicion and conjecture, it is only the probability and not a prima facie showing that is required. Commonwealth v. Blakney, 261 Pa. Super. 220, 396 A.2d 5 (1978). In determining whether an affidavit is sufficient to support a search warrant, we recognize

Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637, 645 (1969), (citations omitted).

[Additionally] affidavits for search warrants, such as the one involved here, must be tested and interpreted by

[ 288 Pa. Super. Page 386]

    magistrates and courts in a commonsense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

[And] when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra 362 U.S. [257] at 270, [80 S.Ct. 725 at 735-36], 4 L.Ed.2d [697] at 707, 78 A.L.R.2d 233.

United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

The affidavit of probable cause which accompanied the search warrant in the instant case is set forth in its entirety as follows.

On 27 March 1979, I the affiant received information from Lt. Robert DUKES, Springfield Twp., Delaware County, Police Dept., that his department had received complaints concerning 309 E. Springfield Rd., in reference to large amounts of traffic arriving at this residence during the day and night.

On 27 March 1979, I the affiant met with Lt. DUKES in reference to the above-mentioned residence. Lt. DUKES related that the residence is leased by Mr. & Mrs. Joseph SCARLATA. Lt. DUKES related that members of the Springfield Twp. Police Dept. periodically have been conducting surveillance of this residence for the past two (2) months and have observed numerous vehicles arrive and

[ 288 Pa. Super. Page 387]

    depart this residence, many of these vehicles having New York and New Jersey registrations. Lt. DUKES then supplied the affiant with a list of vehicle registration numbers that were observed at the SCARLATA residence during the past two (2) months. Vehicles registered to the following list of persons are among the registrations that were ascertained by Springfield Twp. Police Dept.

1. Anthony OTERI

2. Salvatore STRAMPELLO

3. Dennis ...

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