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COMMONWEALTH PENNSYLVANIA v. CALVIN MCCORD (10/04/85)

filed: October 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CALVIN MCCORD



Appeal from the Order of December 15, 1982 in the Court of common Pleas of Allegheny County, Criminal Division, at No. CC 8206520A.

COUNSEL

Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Com., appellant.

James B. Lieber, Pittsburgh, for appellee.

Brosky, Watkins and Hester, JJ.

Author: Watkins

[ 347 Pa. Super. Page 637]

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Allegheny County, Criminal Division, granting the defendant's motion to suppress evidence.

The defendant-appellee, Calvin McCord, was charged with two counts of drug violations under 35 P.S. § 780-113(a)(30) and one count of possession of controlled substance, 35 P.S. § 780-113(a)(16). The drug involved was heroin.

The only question raised on appeal is whether the court below erred in granting the defendant's motion to suppress the evidence on the ground that the application for a search warrant did not contain probably cause for its issuance.

The defendant filed a motion to suppress the evidence seized pursuant to a search warrant and after hearing the court below held that the affidavit of probable cause failed to meet with the standards established by Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and so suppressed the evidence.

It is well established that where an affidavit in support of a search warrant is based on hearsay information, a twopronged test must be met. The magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that contraband was present in the place specified and (2) some of the underlying circumstances from which the affiant concluded that the informant was reliable. Aguilar v. Texas, supra; Spinelli v. United States, supra; Commonwealth v. Minton, 288 Pa. Super. 381, 432 A.2d 212 (181).

However, the United States Supreme Court seems to have abandoned the two-pronged test for evaluating suppression of search warrant affidavits for a totality of circumstances analysis and this could be applied retrospectively to validate search warrants already found defective by

[ 347 Pa. Super. Page 638]

    the trial court under the two-pronged test. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Price, 318 ...


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