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COMMONWEALTH PENNSYLVANIA v. ANN MARZEL (10/23/81)

filed: October 23, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ANN MARZEL, COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ALONZO MCCLELLAN



No. 362 Pittsburgh, 1980, No. 363 Pittsburgh, 1980, Appeals from the Orders of the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7907335 and CC7907336.

COUNSEL

Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

David P. Siegel, Pittsburgh, for appellees.

Spaeth, Shertz and Montgomery, JJ. Spaeth, J., files a dissenting opinion.

Author: Shertz

[ 291 Pa. Super. Page 555]

These are consolidated appeals by the Commonwealth from Orders suppressing evidence obtained in a search conducted pursuant to a search warrant. The lower court held that the underlying affidavit was based on information too stale to establish probable cause. On appeal, the Commonwealth argues that the affidavit indicates ongoing criminal activity continuing to the date of the issuance of the search warrant. We agree and therefore reverse.

The record discloses that on November 21, 1979, Appellees, Ann Marzel and Alonzo McClellan, were arrested and charged with six counts of violating the Controlled Substance, Drug Device and Cosmetic Act.*fn1 These charges were based upon evidence obtained in a search conducted on the same day, pursuant to a search warrant issued earlier that day, upon the affidavit of Lieutenant Charles E. Coughlin of the McKeesport Police Department. The affidavit is founded on numerous complaints received from Appellees' neighbors as well as on information supplied by three separate unidentified informers. The affidavit, in its entirety, states:

This affiant has received many complaints from neighbors in the 1600 block of Manor Ave. over the last several months relating to an unusual amount of activity at 1619 Manor. This activity amounted to persons visiting 1619 Manor Ave. at all times of the day and night, staying short perods [sic] of time & leaving.

Further information from a neighbor who is married & has a family residing at her present address for sveral [sic] years & who is believed by this affiant to be a reliable person told this affiant that on many occassions, [sic]

[ 291 Pa. Super. Page 556]

    people have mistakenly knocked on her door and have asked for drugs. These same persons have even named Lonnie was to have the stuff for me.

A person believed to be reliable to this affient [sic] told this affient [sic] that she has personal information from several persons that they have purchased from Ann Marzel and Lonnie McClelland [sic] marihuana. This informant is also a neighbor is married & has a family & lives very close to 1619 Manor. This informant further told me that marihuana is kept in a fishing tackle box located in the front room, at 1619 Manor that she has seen it there. This affiant further attended a communtiy [sic] meeting from irate neighbors at 1619 Manor demanding a stop to dope sells [sic] coming from this address. This meeting was approx. two months ago & this officer had planned to conduct surveillance at 1619 Manor. However this was impossible due to the fact of high shrubbery surrounding the back of the house & the unavailable positions in front. However on today's date November 21 1979 at approx. 2:00 p. m. this affiant received additional information from another informant and which this information is believed to be true because it corresponds with information that this affiant has already received from neighbors.

That is as follows:

Informant said that Lonnie McClelland [sic] & Ann Marzell are dealing heavy in marihuana and Coke (Cocaine). That he has been inside their house at 1619 Manor & that he has bought marihuana & Cocaine from them. That he further described the entire house to me (inside) and that cocaine is kept under a bed in the upstairs bedroom & that the marihuana is in a fishing tackle box. He also said that there are approx. 50 to 100 cases of beer in the cellar & that they were stolen from the McKeesport Beer dist. Co. He has seen the beer & the drugs in this house, as recently as a month ago. Informant also stated that Ann Marzel or Lonnie McClelland [sic] delivers both drugs and or beer upon request. Based on this information, this affiant believes that a search warrant be issued.

[ 291 Pa. Super. Page 557]

Appellees argue that probable cause was not established by the affidavit because it is based upon allegedly "stale" information and because it fails to establish the reliability of the unidentified informers and the credibility of their information.

I.

The standard for evaluating the sufficiency of affidavits is well stated in Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897, 899 (1971):

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, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963); and Dandrea v. United States, 7 F.2d 861 (8th Cir. 1925). If the issuing officer is presented with evidence of criminal activity at some prior time, this will not support a finding of probable cause as of the date the warrant issues, unless it is also shown that the criminal activity continued up to or about that time. [emphasis added]

Based upon the "continuing activity" proviso, we conclude that the instant affidavit supports a ...


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