Commonwealth v. Barrett

335 A.2d 476, 233 Pa. Super. 523, 1975 Pa. Super. LEXIS 1485
CourtSuperior Court of Pennsylvania
DecidedMarch 31, 1975
DocketAppeal, 1433
StatusPublished
Cited by13 cases

This text of 335 A.2d 476 (Commonwealth v. Barrett) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Barrett, 335 A.2d 476, 233 Pa. Super. 523, 1975 Pa. Super. LEXIS 1485 (Pa. Ct. App. 1975).

Opinions

Opinion by

Van der Voort, J.,

Appeal is taken to this Court from judgment of sentence rendered by Judge Warren K. Hess following jury verdict of guilty of possession with intent to deliver a controlled substance1 and conspiracy.2 Previous to the September 27, 1973, trial, a suppression hearing had been held on September 6, 1973, before Judge Frederick Edenharter, wherein appellant sought to suppress evidence obtained by means of search warrants for the body of appellant and for the automobile which he was using at the time of arrest. Post-trial motions were filed, argued, and denied.

Based upon affidavits3 of one Jere Verdone, a Reading, Pennsylvania, police officer, District Justice Ralph B. Brbneiser issued search warrants for the body of appellant and for a “Cadillac Sedan” in which appellant, one Theodore Covel and “two other unknown persons” were known to be riding. On April 30, 1973, at approximately 9:00 P.M., in the City of Reading, Pennsylvania, said vehicle was stopped, and the warrants were executed upon the car and appellant. Occupants were appellant and his two co-defendants below, Covel and Anthony Spade. Evidence was seized which later proved to be [526]*526heroin, packaged in 169 glassine bags, each bag containing approximately 100 milligrams of the substance. Appellant and the others were held for preliminary hearing and charged with the aforestated crimes.

Appellant challenges the existence of probable cause for the Magistrate’s issuance of both a body and an automobile search warrant and alleges that said lack of probable cause in the affidavit should have served below as grounds to suppress evidence of crime, to-wit, 169 glassine bags of heroin found in the Cadillac automobile in which appellant and two co-defendants were riding. The six paragraph affidavit provided to the Magistrate becomes the focus of our study.

When a law enforcement officer applies for a search and seizure warrant he makes an affidavit before an issuing authority. When the information in support of the issuance of the warrant has been received in substantial part from an informer, the issuing authority must be able to determine from the contents of this affidavit that the officer knows “the underlying circumstances from which the informer concluded that the suspect possessed the fruits or evidence of a crime” and that the officer has “some reasonable basis for concluding that the source of the ‘tip’ was reliable”. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964), Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973), or as we said in Commonwealth v. Cosby, 234 Pa. Superior Ct. 1, 6-7 (1975), the statement of facts given by the officer must be “sufficient to enable the issuing authority to make two independent judgments:

(1) That the affiant is probably correct in his belief that the informer is reliable; and

(2) That the information received from the informer is probably reliable.”

Such facts being set forth in the affidavit the issuing authority may conclude that probable cause exists for the issuance of the search and seizure warrant.

[527]*527The affidavit4 establishes that the affiant, Police Officer Lt. Verdone received information from three different informants and in addition had some personal knowledge pertinent to proof of probable cause. To facilitate clarity of expression, the informants will be referred to as informant No. 1, the one referred to in paragraph (1) of the affidavit; informant No. 2, the one referred to in paragraph (3) and informant No. 3, Officer Schwartz referred to in paragraph No. 4.

Informant No. 1 told Lt. Verdone that two men were involved in narcotic drug traffic in the City of Reading. He gave Officer Verdone the following details: that their names were Theodore Covel and “Tiny” Barrett, that these two men were in a partnership to sell heroin, that they are selling it in the City of Reading, that the two of them are buying heroin in Philadelphia, that they pick it up by driving a car there; that appellant was using a black Cadillac sedan of approximately 1969 vintage and that appellant’s real name is James Barrett. This information was given to Lt. Verdone on April 27, 1973 and the application for the search warrant was made on April 30, 1973.

Both Covel and the appellant were known personally to all members of the Reading Vice Control Division as persons who had been involved in narcotic drug traffic.

Informant No. 2 told Officer Hymon of the Reading Police Department at about 6:00 P.M., on April 30, 1973, that Theodore Covel and Tiny Barrett have made a trip out of town to get heroin and bring it back to Reading for resale; that the two men left that same afternoon but he did not know the exact time. Officer Hymon related this information to Lt. Verdone.

Informant No. 3 was Officer Schwartz of the Pennsylvania Turnpike Police. He informed Lt. Verdone that he personally observed a black Cadillac sedan which had a [528]*528temporary Pennsylvania registration plate and had four occupants in the car, entering the turnpike at 4:45 P.M. on April 30, 1973, through the Morgantown toll gate headed for Philadelphia. Officer Schwartz described two of the occupants precisely, which descriptions were those of Theodore Covel and Tiny Barrett.

The affidavit establishes that Lt. Ver done had a reasonable basis for concluding that informant No. 1 was reliable for the reason that the same informer had on two other occasions within the past week provided Lt. Ver done and another agent of the Pennsylvania Bureau of Drug Control information relative to traffic of narcotic drugs in the City of Reading and related activities of suspected drug sellers, which information was checked out and found to be accurate.

As to informant No. 2, while there is no recital as to his past performance, it is reasonable to infer that inasmuch as he was corroborating two other reliable informants, he also was reliable.

As to informant No. 3, the Pennsylvania Turnpike Officer Schwartz, his employment and position form a reasonable basis for concluding that the information he supplied was reliable. The one test required by Aguilar and Millilcen relating to the reliability of the informers is met.

The informers, individually and collectively, gave underlying circumstances to Lt. Verdone, the affiant. Informer No. 1 gave the full names of the suspects, together with the nickname of appellant. He stated that the two suspects were in partnership to sell heroin, that they were in fact selling it in the City of Reading, that they bought the heroin in Philadelphia where they would pick it up by driving a car to Philadelphia and that the appellant was using a black Cadillac of the approximate year 1969. Informant No. 2 provided information that the two suspects, giving their names, had made a trip out of town to get heroin and to bring it back to Reading for re-sale, [529]*529that this trip was sometime in the afternoon of April 30, 1973, but the exact time was not known. Informant No.

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Commonwealth v. Barrett
335 A.2d 476 (Superior Court of Pennsylvania, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
335 A.2d 476, 233 Pa. Super. 523, 1975 Pa. Super. LEXIS 1485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-barrett-pasuperct-1975.