NO. 1638 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at No. 539, March Session, 1981.
Mark S. Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Lenard H. Sigal, Philadelphia, for appellee.
Wieand, McEwen and Popovich, JJ. Popovich, J., concurs in the result.
[ 318 Pa. Super. Page 242]
The Commonwealth appeals from an order granting a pretrial motion to suppress physical evidence seized from the residence of appellee pursuant to a search warrant. Since we conclude, contrary to the finding of the Common Pleas Court, that the search warrant was adequately supported by probable cause, we reverse the order of suppression and remand for trial.*fn1
[ 318 Pa. Super. Page 243]
The search warrant challenged here was executed by members of the narcotics unit of the Philadelphia Police Department on October 9, 1980, at the apartment of appellee located at 1241 Catherine Street in the Richard Allen Housing Project. As a result of the search, the police officers seized fourteen packets of heroin, five plastic bags of amphetamine, one bag of cocaine, one envelope containing marijuana and a second envelope containing marijuana and also capsules of amobarbital and secobarbital, all of which were seized from the handbag of appellee when they executed the warrant. Appellee was arrested and charged with possession of and possession with intent to deliver controlled substances. 35 P.S. § 780-113(a)(16), id., § 780-113(a)(30). Appellee subsequently filed a pre-trial motion to suppress the physical evidence seized pursuant to the search warrant, based upon her contention that the warrant authorizing a search of her residence was invalid since it was "not supported by probable cause." The motion to suppress was presented to the court on the basis of a stipulated statement of facts drawn entirely from the search warrant affidavit. The full text of the affidavit of probable cause in the search warrant reads:
On 10-8-80, a concerned citizen who stated that she wish to remain anonymous related the following to the affiant: She stated that she lives in the Richard Allen Project and was very upset with the drug pushers in her neighborhood. She further stated that her 16 year old son goes to 1241 Catherine Street and buys marihuana from Doreen Price inside her apartment 8L. She confronted her son with the marihuana and he told her the following: The son collects money from his friends and goes to Doreen Price's apartment to purchase whatever they asked for. The son purchased from Doreen on 10-7-80, twenty-five (25) manila envelopes of marihuana and ten (10) packets of heroin for a total of $170.00. Five of these manila envelopes of marihuana were found by the mother in her son's room. She refused to turned them over to the police for fear of reprisal for her son once his name was known. The son further stated that
[ 318 Pa. Super. Page 244]
he calls Doreen on 985-0230, tells her what he wants, she makes up his packet, which she delivers to him when he arrives. He returns to the Richard Allen Project and distributes the items purchased among his friends. As a result of this information, the affiant checked with the Phila. Housing Authority which revealed that the apartment is registered to Doreen Price. A check with police records revealed she has been issued Phila. Photo number 269845, with prior contacts with police while living at 1241 Catherine street apartment 8L. The telephone was checked through Bell Security which revealed it is registered to 1241 Catherine street apartment 8L. The affiant went to this location on 10-9-80 between the hours of 12:30 pm and 1:30 pm, during this time, while standing in the stairwell, I could hear a male and female voice from within discussing prices. The male left a few minutes later and while the door was open, I could smell the strong odor of marihuana coming from within the apartment. Therefore, I have reason to believe that the above person does keep and sell controlled substances from 1241 Catherine street apartment 8L.
The Common Pleas Court determined that the second prong of the Aguilar/Spinelli*fn2 "two pronged test" for determining whether there is sufficient probable cause for the issuance of a search warrant was not met since the police officer affiant did not have any basis for crediting the hearsay report of the informant. The reasons provided by the hearing judge for his determination were:
The informant had never provided prior reliable information; the informant's factual information was not corroborated by any other source (except for name, address and the phone number, all of which can be corroborated by the telephone book); the informant's statements were definitely not made against his/her penal interest and there ...