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COMMONWEALTH PENNSYLVANIA v. STUART WALTER FUNKE (11/19/82)

filed: November 19, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
STUART WALTER FUNKE, JR., APPELLANT



No. 5 March Term, 1979, Appeal from the Judgment for Sentence of the Court of Common Pleas, Criminal Division, of York County at No. 74 CA, 1978.

COUNSEL

J. Christian Ness, York, for appellant.

Peter J. Mangan, Assistant District Attorney, York, for the Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ.

Author: Watkins

[ 306 Pa. Super. Page 546]

This is an appeal from the conviction and sentence of the Court of Common Pleas of York County by the defendant-appellant, Stuart Walter Funke, Jr. He was convicted by a jury of the manufacture of amphetamines. Post-trial motions were denied by the trial court, and appellant was sentenced to a term of imprisonment of not less than two and one-half nor more than five (2 1/2-5) years.

The facts as set forth in the opinion of the court below are as follows: Shortly after Christmas, 1977, the defendant moved into real estate in the City of York which he and his wife owned and which was previously occupied by his wife and child. There was a retail establishment on the first floor of the premises. Defendant and his family occupied an apartment on the second and third floors. The defendant owned a great deal of laboratory equipment, had studied chemistry and had practical experience in the field as it was a significant part of his job at American Machine Foundry. On January 3, 1978, two boxes from a chemical supply house were delivered to a Mr. Senft. These had been ordered by a Mr. Boring, who requested that Mr. Senft receive them. When notified that the boxes had arrived, Boring picked them up and delivered them to the premises occupied by the defendant. Later that day, Pennsylvania State Police Officers who had the premises under surveillance examined two boxes apparently set out in front of the defendant's premises for refuse collection. There were several empty bottles in these boxes which contained residue of formaldehyde, formic acid, and phenyl-2-propane. The last was identified by an expert witness as a chemical essential to the illicit manufacture of amphetamines. The other chemicals were identified as ones that could be and frequently were used in such production. A search warrant was obtained and executed on January 6, 1978. The police found a great quantity of laboratory equipment in a room on the third floor. This

[ 306 Pa. Super. Page 547]

    equipment included a large number of items which contained residue of amphetamines. An expert witness called by the Commonwealth testified that the equipment that had been seized included all of the equipment required to manufacture amphetamines and he further testified that he had made amphetamines by a process that used said equipment, the chemicals found on the premises, and the chemicals in the containers found in the trash.

Appellant's first contention in this appeal is that the search warrant was invalid, in that there was insufficient information from which the issuing authority could assess the credibility of the informants, there was a failure to set forth the underlying circumstances necessary to judge the validity of the informants' information, and there was no probable cause to justify issuance of this search warrant at the time of its issuance.

There is a two-pronged test which must be met before a magistrate can issue a search warrant based primarily on information supplied by informants. First, the affidavit must set forth the underlying circumstances from which the informant drew his conclusion. Section, the affidavit must contain some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).

The appellant contends that the Aguilar test was not met with respect to the three informants involved here. It is true that the affidavit does not set forth adequate information from which one could ascertain that the informant's were credible or their information reliable. However, one does not have to rely solely on the information supplied by the informants in order to find that there was probable cause to believe that appellant was operating a clandestine laboratory. The affidavit consists of sixteen paragraphs, the majority of which relate the personal observations of the affiant and other police officers resulting from an extensive investigation and the surveillance of appellant's premises.

[ 306 Pa. Super. Page 548]

One must take into consideration the affidavit as a whole, which consists of: (1) information supplied by informants; (2) information which supports the conclusion that appellant is a chemist; (3) observations of police officers that certain chemicals were delivered to appellant's premises by one George Boring; and (4) the fact that bottles containing chemicals essential to the manufacture of amphetamines were found in front of appellant's premises. ...


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