Commonwealth v. Stamps

393 A.2d 1035, 260 Pa. Super. 108, 1978 Pa. Super. LEXIS 3985
CourtSuperior Court of Pennsylvania
DecidedNovember 3, 1978
Docket1641
StatusPublished
Cited by10 cases

This text of 393 A.2d 1035 (Commonwealth v. Stamps) 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. Stamps, 393 A.2d 1035, 260 Pa. Super. 108, 1978 Pa. Super. LEXIS 3985 (Pa. Ct. App. 1978).

Opinions

VAN der VOORT, Judge:

The appellant, Robert Stamps, after trial before a judge sitting without a jury, was convicted of possession of a controlled substance and possession with intent to deliver a controlled substance. Arrest of judgment was granted on the delivery charge.

On this appeal, the appellant raises two claims of error. Appellant first claims there was no probable cause established for the issuance of a search warrant, pursuant to which appellant’s apartment was searched by the police. His second argument is that the evidence was insufficient to sustain his conviction for possession of a controlled substance.

The record shows that on February 19, 1976, Philadelphia police officer Victor Mareone received information from an informant, that within the preceding ten days the informant had seen the appellant in the possession of ten bundles of heroin. The informant had made his observation in the appellant’s second floor apartment at 1211 South 47th Street in Philadelphia. The informant further stated that the appellant told him that the heroin would be sold for eight hundred dollars ($800.00) to a person named Roy. The informant further related that he had observed the appellant, on another occasion, depart from his apartment with three bundles of heroin which he intended to sell at a bar. The informant also advised officer Mareone of the appellant’s phone number, which police found to be registered to the appellant at the South 47th Street address. The informant had provided officer Mareone with information in the past which had led to approximately eight to ten arrests resulting in confiscations of illicit goods.

As a result of receiving this information, the police conducted a surveillance of appellant’s residence on February 23, 1976. On the same date, Officer Mareone sought and [111]*111obtained a search warrant for the appellant’s apartment. In support of the application for the warrant, the following was set forth as probable cause:

I policeman # 4334 having received information from a reliable informant 2-19-76 that he was inside of the above location in the past 10 days and did see the above named person have in his possession approximately 10 bundles of alleged heroin which he stated to the informant was for one person named Roy who was coming over in half an hour to buy the stuff for $800.00. This informant stated that there were approximately five other persons in this apartment and that he would not be sure who to blame if it link out to the cops about this certain transaction. The informant also stated that he on another date seen the above named person called (Brother Rob) leave this apartment with three bundles of heroin on his possession and was going to the bar to sell them to two different persons. This informant also stated that this person phone number is 3498533 and that before any of the above customers come over they always call. This informant in the past two years has given me information which has resulted in a number of arrests with evidence confiscated on all arrests. A check with the phone company of the number supplied to me by this informant was made and found it to be in the name of the above living at the above location. On 2-23-76 from approximately 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons were seen entering and having this location after staying only a short period of time, one of the persons being a white male. Due to the information received from this reliable informant along with a phone check an a surveillance. I believe that the above named person is selling and storing large quantities of heroin from inside of his apartment.

In a subsequent search of appellant’s apartment, on a couch within two feet of his bed, the officers found twenty-five packets of heroin.

[112]*112Appellant contends that there was insufficient probable cause to support the issuance of a warrant because the information provided to the issuing authority was too dated or “stale.” He places reliance upon such cases as Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973) and Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971), to support his arguments. However, we do not find these precedents to be apposite to the circumstances here present. In both of these cases, the prior observations were of possessions of narcotics only, and did not suggest the ongoing nature of a sales operation as was evident in the instant case.

We must be mindful that the courts are not to take an overly technical approach to the evaluation of the information supplied to the magistrate in a search warrant application. As the United States Supreme Court stated in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965):

“If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” [Emphasis supplied]

The probable cause standard concerns only the probabilities, and not a prima facie showing of criminal activities, and probable cause exists when the facts and circumstances set forth in the affidavit are sufficient to warrant a man of reasonable caution in the belief that contraband to be seized is in the specific place covered in the application. Commonwealth v. Frye, 242 Pa.Super. 144, 363 A.2d 1201 (1976). A determination of probable causé by the issuing authority is [113]*113entitled to great deference by the reviewing court because searches pursuant to warrants are preferred and to be encouraged. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In the instant case, there was ample information to provide probable cause. Using a common sense approach, as we are required to do, we find that the magistrate was advised that a very reliable police informant stated that the appellant was a drug salesman. In the ten days prior to the date of the affidavit, the informant saw the appellant, at his apartment, in the possession of ten bundles of heroin, and was told these would be sold to another person for $800.00. On another occasion, the informant had seen appellant depart from his apartment with a quantity of drugs to sell to two other people in a bar. Especially noteworthy was the informant’s information that customers “always” telephoned before they visited to purchase drugs.

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Commonwealth v. Stamps
393 A.2d 1035 (Superior Court of Pennsylvania, 1978)

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Bluebook (online)
393 A.2d 1035, 260 Pa. Super. 108, 1978 Pa. Super. LEXIS 3985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stamps-pasuperct-1978.