No. 1441 October Term, 1979, No. 1442 October Term, 1979, No. 1443 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 773, 774 and 775 of 1979
Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellant.
James P. McHugh, Chester, for appellees.
Spaeth, Brosky and Van der Voort, JJ.
[ 295 Pa. Super. Page 43]
The Commonwealth appeals the decision of the trial court in which it suppressed evidence resulting from a search of appellees' place of business. The Commonwealth procured search warrants through affidavits presented by Pennsylvania State Police supported by information received from the New Jersey State Police. This information resulted from an electronic surveillance of New Jersey Telephones, approved by the New Jersey Superior Court, in response to activities initiated by the New Jersey State Police. The Pennsylvania State Police became involved only upon receipt of the surveillance material.
[ 295 Pa. Super. Page 44]
The trial court suppressed all evidence obtained as a result of the search claiming the warrants were deficient on their face and therefore legally defective. The trial court reasoned any evidence resulting from an electronic surveillance which would have been illegal in Pennsylvania and which was obtained in a foreign jurisdiction cannot be admitted as evidence of probable cause to support a valid search warrant.*fn1 We reverse and remand.
In Commonwealth v. Bennet, 245 Pa. Super. 457, 369 A.2d 493 (1977), we decided that a search warrant can be supported by probable cause based upon information obtained through an electronic surveillance ordered in a foreign jurisdiction. Our decision in Commonwealth v. Bennet, supra, was reached pursuant to the then existing statute authorizing wiretaps in Pennsylvania, 18 Pa.C.S.A. § 5701 et seq., which prohibited the use in court of all evidence obtained by wiretap or electronic surveillance excepting where the parties had consented to the wiretap or electronic surveillance. By the Act of October 4, 1978, P.L. 831, No. 164 found at 18 Pa.C.S.A. § 5701 et seq., the General Assembly authorized the use of information obtained by wiretap or electronic surveillance when the parties have consented to the wiretap or electronic surveillance and where the attorney general, his designee, or a district attorney or his designee, obtains an order signed by a Superior Court Judge authorizing the wiretap or electronic surveillance. 18 Pa.C.S.A. § 5708.*fn2 Thus, our General Assembly has lessened the restrictions placed upon the use of such evidence. Nevertheless, in Commonwealth v. Bennet, supra, the parties argued extensively about the legality of the New Jersey wiretap. In this case, neither party argues that the wiretap was illegal. Accordingly, we need not decide whether the use of information
[ 295 Pa. Super. Page 45]
obtained by wiretap provided grounds, in and of itself, to suppress the evidence, rather, we must determine if the evidence so obtained provided the police with sufficient facts upon which to establish probable cause for the issuance of a search warrant.
The trial court discussed the facts concerning the procurement of the search warrant as follows:
On February 9, 1979, Corporal Theodore J. Zamorski of the Pennsylvania State Police obtained Search Warrants for 319 Liberty Lane, Wayne, Delaware County, Pennsylvania, and 914 South Avenue, Spring Hill Apartments, Apartment H-26, Secane, Delaware County, Pennsylvania. The Search Warrants were obtained for the purpose of searching the aforesaid premises wherein the authorities believed that poolselling and bookmaking activities were occurring. The information contained in the Search Warrants obtained by the ...