Appeal from Orders of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC8305503A, CC8305504A.
Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Yaier Y. Lehrer, Pittsburgh, for appellees.
Wieand, Johnson and Montgomery, JJ.
[ 348 Pa. Super. Page 98]
This appeal by the Commonwealth from an order suppressing evidence of a gambling operation seized by police during execution of a search warrant requires that we determine (1) whether the affidavit recited facts sufficient to constitute probable cause, and (2) whether the premises to be searched were described in the warrant with sufficient particularity. We conclude that the search warrant was valid and reverse the order of the trial court suppressing evidence seized by the police.
[ 348 Pa. Super. Page 99]
On May 9, 1983, police applied for a warrant to search. The application described the premises to be searched as "9935 Frankstown Rd. Penn Hills Pa. This is a two story frame house with red and grey shingles and cedar shakes on front, white trim and front porch." The probable cause for the warrant was stated as follows:
The affiants have received information from a reliable informant who has provided information in the past that has resulted in the arrest of Thomas Morrison in Feb. 1981 and also the arrest and conviction of Neil Harrington in July 1981 for lotterys [sic]. This informant has stated that he plays numbers with an actor known as Bud by calling the number 241-1966 or 241-1967. He states that he calls these numbers at various times during the day. He also states that he has placed number bets with the actor as recent as 5-9-83. The informant states that he only knows the actor as Bud. Dets. from the Vice Control Section checked the above numbers and found that 241-1966 goes to Sue Fletcher, 9935 Frankstown Rd. Penn Hills, 1st fl. apt. 1. The number 241-1967 is listed to Carol Sheehan of the same address and apartment. These numbers were checked with Bell Telephone security. Dets. from the Vice Control Section called these numbers on various occasions during the past week and found them usually busy and when someone did answer it was on the first ring. The affiants have been assigned to the Vice Section for aprox [sic] 5 years and the above pattern is consistent with a numbers operation.
(Emphasis added.) Christine Carlisle and Loretta Marinacci were present in apartment # 1 when the warrant was executed on May 9th. Seized, among other things, were numbers sheets, owe sheets, a log book, and telephones bearing the telephone numbers stated in the warrant application. Thereafter, Carlisle and Marinacci were arrested and charged with criminal conspiracy and conducting a lottery. They filed a joint motion to suppress the evidence seized on May 9th. An evidentiary hearing was held, and
[ 348 Pa. Super. Page 100]
on September 9, 1983, the court granted the motion. The Commonwealth appealed.*fn1
The magistrate's determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983); Commonwealth v. Corleto, 328 Pa. Super. 522, 528, 477 A.2d 863, 866 (1984). "[A] magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion." Commonwealth v. Gray, 322 Pa. Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). "The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." ...