No. 97 E.D. Appeal Docket 1983, Appeal from the Order of the Superior Court dated May 13, 1983, entered at No. 2858 Philadelphia, 1981, affirming the Order of the Court of Common Pleas of Montgomery County, Criminal Division, dated October 20, 1981, entered at Nos. 1674 and 1684 of 1981, 313 Pa. Super. 602, 460 A.2d 850 (1983)
Joseph J. Hylan, Asst. Dist. Atty., for appellant.
Richard J. Hodgson, Michael D. Marino, Norristown, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins in this opinion and files a concurring opinion. Zappala, J., files a dissenting opinion.
The sole issue in this appeal is whether a narcotics agent's affidavit in support of the issuance of a search warrant established probable cause for the resulting search of a private residence for heroin and other controlled substances. The Court of Common Pleas concluded that it did not, and suppressed the evidence seized pursuant to the warrant; a Superior Court panel affirmed without opinion, 313 Pa. Super. 602, 460 A.2d 850. For the reasons which follow we vacate the orders of the courts below and remand for further proceedings.
The search warrant in question, which authorized the search of a single-family house at 17 Glenwood Avenue, Lower Providence Township, Montgomery County, occupied by appellees Theodore Jones and Sandra Sirchie, was issued by a district justice on the basis of a lengthy affidavit prepared by an agent of the State Drug Enforcement Agency ("Agent"). The affidavit chronicles the Agent's entire investigation of appellees, reporting the results of his surveillance of appellees and their residence over a six-month period, as well as information obtained from police and motor vehicle records and from two confidential informants. The averments in the affidavit, the most pertinent of which will be summarized below, are presented in chronological sequence.
The affidavit begins with a recital of information received by the Agent "within the past several months" from a confidential informant. According to the affidavit, this informant had furnished the Agent with reliable information
over the past two years which resulted in two drug-related arrests and one conviction. The informant alleged that "[a]n individual known as TED JONES is distributing Heroin in the Norristown area" and "deals Heroin to numerous individuals in the area." Four such customers were identified as being Connie Powers, Kevin Kemper, Richard Zimmerman and Blain Harris. The informant also indicated that Jones and Sirchie were living together on Arch Street in Norristown, and that both were being treated for heroin addiction at a methadone clinic in Norristown.
The affidavit further relates the details of the Agent's investigation of the informant's "tip." On December 5, 1980, the Agent was informed by the Lower Providence police that Jones had moved to 17 Glenwood Avenue in that township, and that a number of complaints had been received from Jones' neighbors regarding suspicious activity at that address. Specifically, numerous individuals were said to be entering the house, staying a few minutes and then leaving.
The Agent conducted a spot surveillance of 17 Glenwood Avenue the following day. He observed two men arrive in a truck, followed soon thereafter by Jones. All three then entered the house and, after ten minutes, the two visitors left. The Agent followed them to a bar where he observed ...