Summary
In Commonwealth v. Prasnikar, 221 Pa. Super. 469, 472, 292 A.2d 420, 421 (1972), we held that where the only information given a magistrate was that defendant had been associating with suspected and known drug addicts, such information "does not provide the requisite underlying circumstances of defendant's criminal conduct; in fact, it does not even afford a reasonable inference that any criminal conduct existed.
Summary of this case from Commonwealth v. StrohlOpinion
April 11, 1972.
June 16, 1972.
Criminal Law — Search and seizure — Warrant — Affidavit.
1. Under Aguilar v. Texas, 378 U.S. 108, the test of the validity of a search warrant is two-fold: the magistrate must be informed of some of the underlying circumstances (1) from which the informant concluded that the suspect was engaged in criminal activity, and (2) from which the affiant concluded that the informant was credible or his information reliable.
2. In this case, in which it appeared that the affidavit for the search warrant recited that the affiant received a phone call from a reliable informant as to the activities of the house searched, that a surveillance was conducted on particular dates, that known narcotic users were observed going into the house on these dates, and that other information was given to the magistrate; and that the other information given to the magistrate was to the effect that the informant had given the affiant reliable information on a previous occasion, that the informant advised the affiant that suspected and known addicts frequented defendant's apartment, and that the affiant during a surveillance of defendant's apartment observed quite a few people, including both suspected and known addicts, frequenting the place at all hours of the day and night; it was Held that the first portion of the Aguilar test was clearly not met, in that the information did not provide the requisite underlying circumstances of defendant's criminal conduct.
WRIGHT, P.J. and WATKINS, J., would affirm the order below.
Argued April 11, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 180, April T., 1972, from judgment of Court of Common Pleas of Westmoreland County, April T., 1971, No. 188, in case of Commonwealth of Pennsylvania v. Karen Prasnikar. Judgment reversed and new trial granted.
Indictment charging defendant with violation of The Drug, Device and Cosmetic Act. Before WEISS, P.J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Dante G. Bertani, Assistant Public Defender, with him Albert C. Gaudio, Assistant Public Defender, for appellant.
Henry A. Martin, Assistant District Attorney, with him Louis H. Ceraso, Assistant District Attorney, and John N. Scales, District Attorney, for Commonwealth, appellee.
In this appeal defendant places in issue the validity of a search warrant. She contends that the warrant was not supported by probable cause and consequently the evidence of narcotics found during a search pursuant to the warrant should not have been admitted at her trial. The trial court, refusing to suppress the evidence, found her guilty of drug-possession, from which judgment she now appeals. For the reasons that follow we reverse and order a new trial.
The affidavit for the search warrant reads as follows: "Officer Reed received a phone call from a reliable informant to the activities of this house. A surveillance was conducted on Jan. 24, 27, 28, 29, 30, 1971. And known narcotic users were observed going into this house on the above dates. Also other information given to this Magistrate."
According to the testimony at the suppression hearing the "other information" given to the magistrate was as follows: The informant had given the affiant "reliable information on a previous occasion"; the informant advised the affiant that suspected and known addicts frequented defendant's apartment; and the affiant, during his surveillance of defendant's apartment, observed "quite a few people", including both suspected and known addicts, frequenting the place at all hours of the day and night.
This information fails to meet the Aguilar test for the validity of a search warrant. See Aguilar v. Texas, 378 U.S. 108 (1964). As we stated in Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972), the test mandated by Aguilar is twofold: The magistrate must be informed of some of the underlying circumstances (1) from which the informant concluded that the suspect was engaged in criminal activity, and (2) from which the affiant concluded that the informant was credible or his information reliable.
In the present case the first portion of the Aguilar test was clearly not met. The magistrate was not told how the informant obtained his information and no description of defendant's alleged criminal activity was provided. The only information given to the magistrate was that defendant had been associating with suspected and known addicts. This information does not provide the requisite underlying circumstances of defendant's criminal conduct; in fact, it does not even afford a reasonable inference that any criminal conduct existed. See Sibron v. New York, 392 U.S. 40 (1968), and Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970).
We hold, therefore, that the first portion of the Aguilar two-pronged test, requiring a statement of the circumstances underlying the informant's conclusion, is not met in the present case. Nor is this deficiency cured by the affiant's surveillance, for the surveillance provided the magistrate with no new information. Thus, even were we to find compliance with the second portion of the Aguilar test, requiring a showing of informant-credibility or information-reliability, we must declare the search warrant invalid on the ground that the first portion of the test has not been met. Since evidence resulting from the invalid warrant was admitted at defendant's trial, we must reverse her conviction and order a new trial.
Judgment reversed and new trial granted.
WRIGHT, P.J., and WATKINS, J., would affirm the order below.