No. 512 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Delaware County at No. 5154 of 1979.
Kristine F. Hughey, Assistant District Attorney, Media, for Commonwealth, appellant.
Thomas A. Bergstrom, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
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This is an appeal by the Commonwealth from an order suppressing alleged drugs and drug paraphernalia seized without a warrant by county agents who had accompanied federal agents during the execution of a federal warrant to search the premises for a machine gun. The lower court agreed with the Commonwealth that there was probable cause to support the issuance of the federal warrant, but it rejected the Commonwealth's argument that the county agents' seizure of the drugs was justified by the "plain view" doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Instead, the court held that the county agents had probable cause to believe that there were drugs in the apartment, and that they were therefore obliged to get a search warrant for the drugs; it was not enough, in the court's view, that they should accompany the federal officers during the execution of the warrant to search for the machine gun, and seize any drugs that happened to be in plain view. Although we agree with the lower court that there was probable cause to support the federal warrant to search for the machine gun, we do not agree that there was also probable cause to support a warrant to search for drugs. It follows from this conclusion that the county agents were entitled to seize drugs in plain view. We therefore reverse the suppression order and remand for trial.
Since at least September 1977 Anthony Terra, a Darby Township police officer and the appellee in this case, was
[ 292 Pa. Super. Page 253]
one of the subjects of a joint investigation by agents of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF), the Federal Bureau of Investigation, and the Criminal Investigation Division of Delaware County (CID). According to one federal agent, the investigation concerned "alleged firearms and narcotic[s] theft[s] from the Darby Police [e]vidence [l]ocker, gambling violations . . . [and] loansharking activities." N.T. 6.*fn1
On September 10, 1979, Dennis E. Dutch, a special agent with the ATF, obtained a warrant from a federal magistrate authorizing a search of the premises at 941 South Avenue, Apartment B-4 in Secane, Pennsylvania, for a Thompson machine gun with the serial number S516465. On September 12, 1979, the warrant was executed by ATF agents, who were accompanied by agents of the FBI, the CID, the Delaware County District Attorney, and the Ridley Township Police Department. In the apartment at the time were appellee and a young woman. Appellee informed the agents that the machine was at his mother's house, and he offered to allow them to search for the gun there. Nonetheless, the ATF agents searched the apartment. They did not find the machine gun,*fn2 but they did see, on the dining room table, and on a coffee table, and open shelves, suspected drugs and drug paraphernalia, which were then taken by the CID agents.
Appellee was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act.*fn3 On November 30, 1979, he filed an omnibus pre-trial motion seeking suppression of all evidence seized during the September 12 search. On December 20, 1979, the lower court held a hearing on this motion, and on January 15, 1980, it entered
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an order granting the motion to suppress. It is from this order that the Commonwealth appeals.*fn4
On appeal the Commonwealth agrees with the lower court that there was probable cause to support the federal warrant to search for the machine gun. It argues, however, that the court erred in finding that there was also probable cause to support a warrant to search for drugs. The Commonwealth's position is that there was no such probable cause, and since the CID agents had properly gone along to accompany the federal agents, they were entitled to seize any contraband that was in plain view.
Appellee is in essential agreement with the way in which the Commonwealth has framed the issues. He contends, however, that the federal warrant was not supported by probable cause, and that even if it was, the CID had sufficient probable cause to support a warrant to search for the drugs, so that their warrantless seizure of the drugs was in violation of his constitutional rights. Brief for Appellee at 2, 4A.
We must first decide whether there was sufficient probable cause to support the federal warrant. If there was not, there is no question but that both the federal and the county agents were improperly on the premises, and the evidence must be suppressed. Coolidge v. New Hampshire, supra.
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The affidavit in an application for a search warrant must contain sufficient information to enable the issuing authority to make an independent judgment that probable cause for a search exists. This means that the issuing authority "must be informed of some of the underlying circumstances from which the informant concluded that [the items to be searched for] were where he claimed they were, and some of the underlying circumstances from which the officer [signing the affidavit] concluded that the informant . . . was 'credible' or his ...