Commonwealth v. DeLuca

326 A.2d 463, 230 Pa. Super. 390, 1974 Pa. Super. LEXIS 2469
CourtSuperior Court of Pennsylvania
DecidedSeptember 23, 1974
DocketAppeals, Nos. 432 and 466
StatusPublished
Cited by8 cases

This text of 326 A.2d 463 (Commonwealth v. DeLuca) 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. DeLuca, 326 A.2d 463, 230 Pa. Super. 390, 1974 Pa. Super. LEXIS 2469 (Pa. Ct. App. 1974).

Opinions

Opinion by

Price, J.,

On October 24, 1972, at approximately 1:20 p.m., Officer Francis Selgrath of the Philadelphia Police Department executed a search and seizure warrant inside the premises of Anna Silver, in Philadelphia. During the course of this search, which was instituted to confiscate work tallies used in an illegal numbers-writing operation, Officer Selgrath answered the Silver’s telephone and informed callers, who asked for “Ann” and then placed numbers and horse bets, that Ann Silver was not present. One such caller identified herself as “Sparky” and placed 24 straight plays, worth $107.00. Officer Selgrath asked “Sparky” if she wanted Anna to return her call, and upon receiving an affirmative answer, wrote down “Sparky’s” telephone number as she recited it. The number given was De2-6851.

Officer Selgrath immediately contacted the Bell Telephone Company to determine the location of, and listed occupants for, that number. The investigation revealed that Julia and Anthony DeLuca were assigned [393]*393that telephone number, and that the phone was located at 6912 Hegerman Street. Officer Selgrath then crosschecked this information against the voter registration lists and confirmed the address provided by Bell Telephone.

At 4:25 p.m. that same afternoon, Officer Selgrath presented an affidavit for a search and seizure warrant to the Honorable Thomas Marotta, Judge of the Municipal Court, requesting permission to search the premises at 6912 Hegerman Street for any evidence of lottery paraphernalia. Judge Marotta approved and signed the warrant, which was then properly executed. The search pursuant to warrant revealed evidence of a substantial gambling operation conducted on the premises: specifically, “numerous sheets of paper listing numbers plays for 38 days, and approximately 30 names, in excess of 90,000 plays for in excess of $75,000.00 and Tally work for 180,000.0o,”1

On April 18, 1973, the defendant-appellees moved to suppress the physical evidence seized by Officer Selgrath, alleging that there was no probable cause to search. This motion was subsequently granted by a judge of the Municipal Court, and affirmed by the lower court after argument. The Commonwealth now appeals that order.

This court may entertain the Commonwealth’s appeal because the practical effect of an order which grants the suppression of evidence gives to the order an attribute of finality sufficient to justify the Commonwealth’s right of appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963).

The only issue presented to us is whether the facts averred in the warrant constituted probable cause to search the premises at 6912 Hegerman Street.

[394]*394Probable cause is said to exist where the facts and circumstances within the knowledge of the officer, and of which he has reasonably trustworthy information, are in themselves sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United States, 388 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925); Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969); Commonwealth v. Bosurgi, supra.

That a magistrate may not constitutionally issue a search warrant until he is satisfied, by reason of the information furnished him by the affiant, that there is probable cause, is well-settled law. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). The purpose of requiring sufficient information to persuade a reasonable man that probable cause for the search exists is to give the magistrate the opportunity to hear and weigh the facts and to objectively determine that there is a need to invade a person’s privacy in order to enforce the law. McDonald v. United States, 335 U.S. 451 (1948); Commonwealth v. Matthews, 446 Pa. 65, 285 A. 2d 510 (1971). His decision must be based entirely on information supplied to him when he is requested to issue the warrant. Aguilar v. Texas, supra; Giordenello v. United States, 357 U.S. 480 (1958). And his decision must be reached after a commonsense reading of the entire affidavit. United States v. Ventresca, 380 U.S. 102 (1965); Commonwealth v. Payton, 212 Pa. Superior Ct. 254, 243 A. 2d 202 (1968). In this manner, the mandate of Johnson v. United States, 333 U.S. 10 (1948), to ensure the determination of probable cause by a neutral and detached magistrate rather than by an officer who is often engaged in ferreting out crime, will be safeguarded. Accord Spinelli v. United States, supra. This court may consider only the information [395]*395available to the magistrate who determined there was probable cause to search. Aguilar v. Texas, supra.

The warrant involved in the instant case was addressed to “Sparky”, an unknown white female for the premises 6912 Hegerman Street, Philadelphia. The basis for the request for a warrant was the officer’s belief that an illegal lottery and book-making were being conducted at that address. The probable cause section of warrant No. 148393 follows:

“On 10-24-72, at 1:22 P.M. armed with SS Warrant #143392, signed by J. Conroy, I went to the location of 3570 Belgrade St. and arrested Anna Silver w/f/60. I confiscated tally work in eccess (sic) of $1560.00 and residue of soluble paper on which I observed numbers work and which I had seen the defendant Silver put into a pot of water. During the course of the search I answered the phone numerous times and several individuals after asking for Anne placed numbers and horse bets with me. A female caller who identified he (sic) self as Sparky called and placed 24 straight plays for $107.00 total. After placing the numbers bets Sparky was asked by me if she wanted Anne to call her back and she gave her telephone number as De-2-6851. A check with Bell Telephone Company records indicates that the above number is assigned to Julia DeLuca 6912 Hegerman St. voters (sic) registration verifies that Anthony and Julia DeLuca reside at 6912 Hegerman. For this reason I firmly beleive (sic) I have sufficient reason to request this search warrant.”
“Approved by ADA T. Butler 10-24-72”

The Pennsylvania Supreme Court has stated that in resolving doubtful or marginal cases where the issue is probable cause to search, courts should determine the answer by the preference to be accorded to warrants. Commonwealth v. Matthews, supra. And the United States Supreme Court has indicated that appellate [396]*396courts must pay great deference to the magistrate’s determination of whether probable cause existed. Spinelli v. United States, supra.

The standard which a magistrate must apply to find probable cause is not as high as that needed to prove guilt in a criminal trial. The applicable standard was set forth in

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Bluebook (online)
326 A.2d 463, 230 Pa. Super. 390, 1974 Pa. Super. LEXIS 2469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-deluca-pasuperct-1974.