Commonwealth v. Kaplan

339 A.2d 86, 234 Pa. Super. 102, 1975 Pa. Super. LEXIS 1509

• Court: Superior Court of Pennsylvania
• Decided: April 22, 1975
• Docket: Appeal, 1006
• Status: Published

Opinions

Opinion by

Watkins, P. J.,

This is an appeal from the Court of Common Pleas, Criminal Division of Philadelphia County by the defendant-appellant, Eric Kaplan, challenging the sufficiency of the search warrant pursuant to which controlled substances were found and seized by the police and subsequently used against the defendant at trial.

On December 11, 1969, the defendant was arrested and charged with possession of a controlled substance. Police had conducted a search of his premises pursuant to a search warrant which is the basis of this appeal. The search revealed that the appellant had 48 pounds of marijuana in his apartment. Pre-trial motions to suppress the evidence obtained pursuant to the search warrant were denied and on September 7, 1971, the appellant was convicted of possession of narcotic drugs after a non-jury trial. The appellant was sentenced to five (5) years probation as a result of the conviction. Subsequently, he was granted the right to file an appeal nunc pro tunc by the court below and this appeal followed.

Appellant’s sole contention on appeal is that the conviction should be overturned because the evidence seized and admitted into evidence at this trial was done so pursuant to an invalid search warrant. The warrant set forth that the premises to be searched was occupied by Eric Kaplan, the appellant. The premises was described as “#1821 Pine Street, 3rd Floor Front — 3 story brick building.” Appellant challenges the sufficiency of the warrant because his apartment was located in the rear of the third floor of the building in question and not in the front. He also claims that the warrant is defective because the apartment building at the named address contained 4 floors and not 3.

Normally, separate living units of a multiple tenant building must be treated as if they were separate dwelling houses and probable cause must be shown to search each one. Commonwealth v. Copertino, 209 Pa. Superior Ct. 63, 224 A.2d 228 (1966). Therefore, if the search warrant in question does not specify which particular dwelling unit in a multiple dwelling building is to be the object of the search then the warrant is invalid and any evidence seized pursuant thereto is unlawfully obtained and must be suppressed at trial upon the filing of the proper motions. This is so unless probable cause is shown which justifies the search of the entire building. In our case there is no question that only one apartment in the building was authorized to be searched, that of Eric Kaplan. The only question is whether the search warrant described his apartment with sufficient specificity so as to validate the warrant.

In Commonwealth v. Fiorini, 202 Pa. Superior Ct. 88, 195 A.2d 119 (1963), we held that it is not necessary to a valid description of an apartment that its location within a particular building be given. To the contrary, a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid. Commonwealth v. Fiorini, supra. Turning to the search warrant at issue in the instant case, it is apparent that the warrant set forth the name of the occupant of the apartment to be searched, the street address of the apartment building, and its location on the third floor of the building in which it was situated. Thus, the warrant measured up to the standard enumerated in Fiorini, supra. The problem is that the building itself was described in the warrant as a 3 story building when the appellant alleged it consisted of 4 stories.

The appellee’s brief contains a statement that the judge presiding in the suppression hearing went to see the apartment house and stated that from its architecture he could not determine whether it was a 3 or 4 story apartment building. However, there is no opinion of the court from the suppression hearing so that this does not constitute a recorded fact. We feel that this apparent error was purely technical in nature and not of the type which would invalidate the warrant as the street address of the building was set forth clearly in the warrant. To require a police officer to count up the exact amount of stories in a building in which a search was to be made pursuant to a valid warrant would reach the heights of absurdity when another, clearer description of the building, i.e., its street address was available and furnished to the magistrate who issued the warrant. Thus, we hold that this fact did not invalidate the warrant.

Appellant also contends that since the warrant described the apartment as “3rd floor front” rather than “3rd floor rear” that this rendered the warrant invalid. This contention, too, lacks merit since under Fiorini, supra, it is not necessary to set forth the exact location of an apartment within a building in the search warrant. In this instance, the police were able to ascertain the location of Eric Kaplan’s apartment in a structure at 1821 Pine Street. His apartment and only his alone was searched. Although not determinative of the issue this fact does indicate that the description of the premises in the warrant was sufficient to enable the police to search the correct apartment. Again, we feel it would be unsound to base a holding in a case involving the validity of a search warrant on such relative terms as “front” and “rear” when other facts set forth in the warrant clearly describe the premises to be searched. As former President Judge J. Colvin Wright stated in his Dissenting Opinion in Copertino, supra, “Our approach to problems involving the detection and prosecution of crime should be on the basis of common sense, not super-technicality.” To hold as appellant would have us do in this case would be an exercise in supertechnicality which would do nothing to protect innocent people in the privacy of their abodes.

This case is further distinguishable from Copertino, supra, because the officers serving the warrant rang the bell at the main entrance of the apartment at the address described in the warrant. The door was opened by two people and the officers recognized one of the men opening the door as Eric Kaplan, the appellant. The officers gave him the search warrant and he accompanied them to his apartment where the search was made. For these reasons, we affirm the opinion of the court below and hold the warrant to be valid.

Judgment affirmed.