Commonwealth v. Gelfont

399 A.2d 414, 264 Pa. Super. 96, 1979 Pa. Super. LEXIS 1906

• Court: Superior Court of Pennsylvania
• Decided: March 2, 1979
• Docket: 1807
• Status: Published

Opinions

PRICE, Judge:

This is an appeal from an order of the court below granting appellee’s motion to suppress the physical evidence seized pursuant to a search warrant executed at the appellee’s residence at an address within Montgomery County. The physical evidence involved is approximately fifteen (15) pounds of marijuana, and the appellant certifies and the court below found that the physical evidence is critical to the Commonwealth’s presentation of the case. The Commonwealth is therefore clearly entitled to bring this appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

The sole issue before us is whether or not the affidavit supporting the issuance of the search warrant provided a sufficient basis for the magistrate to have had probable cause established to justify issuance of the search warrant. We find by applying the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and subsequent Pennsylvania authorities on the point that the court below erred in the suppression, that the order should be reversed and the case remanded for trial.

President Judge Lowe, of the Court of Common Pleas of Montgomery County, the court below, issued the order and able opinion in support of his order. The facts set forth in that opinion are as follows:

“On February 22, 1978 Montgomery County Detective Timothy Woodward sought a search warrant for the residence of defendant Carl Gelfont. The complaint for the warrant read in pertinent part:

During the last 24 hours affiant interviewed a confidential and reliable informant. The information received from the confidential and reliable informant was that during the last 48 hours, while he (the informant) was present inside the residence located at 3918 Warfield Drive, Huntingdon Valley, he (the informant) observed a large quantity of suspected marijuana. The marijuana was in the possession of a white male known to the informant as Carl . . . Affiant checked the ‘Coles Directorey [sic]’ and learned thru that directory that the residence at 3918 Warfield Drive, Huntington [sic] Valley is owned by a Carl Gelfont and learned that a Pennsylvania Operators License is issued to a Carl Gel-font, d. o. b. 2/9/42, 3918 Warfield Drive, Huntington [sic] Valley. Affiant believes the informant to be reliable for the following reasons: The informant has never been arrested or a suspect in a crime. The informant has been gainfully employed for the majority of his adult life. The informant is also a registered voter in Montgomery County .

After a determination of probable cause, District Justice Everett P. Arnold issued the warrant.

Detective Woodward proceeded to the defendant’s residence, executed the warrant, seized contraband, and arrested the defendant for violations of the Controlled Substance, Drug, Device and Cosmetic Act. Act of April 14, 1972, P.L. 233, 35 P.S. 780-113(a)(16), (30).”

The key words to the decision of the court below were the words “suspected marijuana” in the sentence of the affidavit “. . . while he (the informant) was present inside the residence located at 3918 Warfield Drive, Huntingdon Valley, he (the informant) observed a large quantity of suspected marijuana.” (emphasis supplied).

Speaking to this point and discussing Aguilar v. Texas, supra, the opinion of the court below explains:

“Each prong of the test must be analyzed separately. The first requirement is an explanation of the underlying circumstances which caused the informant to believe that fruits of a crime would be found. This warrant merely states that the informant ‘observed a large quantity of suspected marijuana.’ (emphasis added). The affidavit stated that the suspected marijuana was in the possession of a certain individual named Carl at a designated location. This portion of the affidavit lacks the requisite underlying ‘facts or circumstances’ which gave rise to the informant’s conclusions. There is nothing in the affidavit to indicate that the informant had any expertise in marijuana or that he could distinguish marijuana from other vegetable substances of similar appearance and characteristics. Unquestionably, before a lay informant’s opinion can support the issuance of a search warrant, it must be demonstrated he has had some prior elementary experience with the subject matter of the opinion. The Supreme Court of the United States forbids issuance of a warrant on mere affirmance or belief. In Nathanson v. United States, 290 U.S. 41 [54 S.Ct. 11, 78 L.Ed. 159] (1933), a warrant was issued upon the sworn allegation that the affiant ‘has cause to suspect and does believe’ that certain merchandise was in a specified location. The Court stated:

Under the Fourth Amendment an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. Id. 47 [54 S.Ct. 11]. See also United States v. Harris, 403 U.S. 573 [91 S.Ct. 2075, 29 L.Ed.2d 723] (1971). The informant merely suspected that marijuana was present at defendant’s residence. Mere affirmance is insufficient. There is no allegation that the informant, a reputable, law-abiding citizen, had any knowledge of marijuana. It cannot be assumed that marijuana is such a common, every day substance that it is readily and universally recognizable. Expert witnesses are often called upon to identify marijuana. United States vs. Moore, 446 F.2d 448 (3rd Cir. 1971), cert. denied, 406 U.S. 909, [92 S.Ct. 1617, 31 L.Ed.2d 820] (1971). The meager, unconfirmed, and unsubstantiated allegations identifying the suspected contraband as marijuana are insufficient to satisfy the first prong essential to establishing probable cause.”

We believe this analysis to be in error. As Justice Frankfurter pointed out in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), in examining an affidavit the magistrate issuing the warrant

“need not have been convinced of the presence of narcotics [at the place to be searched. Rather there need only be a] substantial basis for him to conclude that narcotics were probably present.” Id. at 271, 80 S.Ct. at 736 (emphasis supplied).

Additional valuable instruction is gained on the standard of review in United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), where the Court stated:

“[W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 109, 85 S.Ct. at 746. (citation omitted).

Indeed, this court has often used the above language in upholding such warrants, most recently in Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978) (Allocatur denied June 21, 1978). In Forster, the drug involved was identified as T.H.C. only through the use of the letters T. H.C. in a conversation overheard by the informant. The substance was never seen and therefore was further removed from specific identification than the physical evidence here involved.

In the instant case, the court below has applied too strict a standard. The information that a confidential reliable informant provides law enforcement authorities in order for them to procure a search warrant has never been held to be a standard of proof beyond a reasonable doubt. This court has repeatedly held that the correct test is by evidence less than would justify conviction. The use of the word “suspected” must, of necessity, at least be implied in all search warrants. Even the most experienced of law enforcement officials can only truly apply a drug name to a substance after standard chemical tests are performed, most often requiring the use of highly trained and specialized experts to identify truly the drug. Indeed, the court below recognized that distinction in its opinion.

Further, in Commonwealth v. Banahasky, 250 Pa.Super. 495, 378 A.2d 1257 (1977), Judge Spaeth, speaking for the majority, accepted the words “suspected marijuana” as establishing the fact that some drugs were found on an individual’s person.¹ That opinion, while accepting “suspected marijuana,” went on to reverse on other grounds, a conclusion which led the writer of this opinion to dissent. But on the point here under discussion there was no division.

Appellee also argues the suppression order should be affirmed because the court below erred in its interpretation of the second prong of the Aguilar, supra, requirement. On that point, the court below’s opinion is as follows:

“The leading case analyzing the second requirement of the Aguilar test is United States vs. Harris, supra. The courts of Pennsylvania have reviewed the requisite standards in determining whether or not there is a substantial basis for crediting hearsay:

1) Did the informant give prior reliable information?

2) Was the informant’s story corroborated by any other source?

3) Were the informant’s statements a declaration against interest?

4) Does the defendant’s reputation support the informant’s tip?

Commonwealth vs. Ambers, 225 Pa.Superior Ct. 381 [310 A.2d 347] (1973); Commonwealth vs. Reisinger, supra [252 Pa.Super. 1, 380 A.2d 1250], None of the aforementioned factors is present in the instant case. However, these factors were not ‘intended by the Harris court to be the only factors which could conceivably provide a basis for crediting the hearsay.² To apply this “checklist” in a mechanical manner would deprive a reviewing court of the opportunity to use its “common use” as urged the Court in United States vs. Ventresca [380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)] . . .’ Commonwealth vs. Reisinger, supra [252 Pa.Super. 1], 380 A.2d 1250, 1253.

This Court concludes that there is sufficient evidence to determine that the second requirement of Aguilar was met. The informant was reliable because he had never been arrested or a suspect in a crime, is gainfully employed, and is a registered elector in Montgomery County.”

We agree.

The suppression order is reversed and the case remanded for trial.

SPAETH, J., files a dissenting opinion.

1 . The dissent now justifies that reliance because of the fact that the informant was a chief of police. This is an example of fallacy known as petitio principa. It is not a fact which establishes the ability to translate the words “suspected marijuana” into “truly marijuana.”

2 . Footnote 1 of the quoted portion of the court below’s opinion is as follows:

“Justice Harlan’s dissent in Harris vs. United States [United States v. Harris], 403 U.S. 573 [91 S.Ct. 2075, 29 L.Ed. 723] (1971), is instructive on the issue of credibility. ‘I think there is much truth in the government’s supporting assertion that the ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis . . .’ Id., 599 [91 S.Ct. 2075]. Justice Harlan continued, ‘without violating the confidence of his source, the agent surely could describe for the magistrate such things as the informer’s general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like.’ Id., 600 [91 S.Ct. 2075].”