Summary
In Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), marijuana cigarette butts were in a living room where seven persons were having a party, all having equal access to the illegal substance.
Summary of this case from Com. v. MacolinoOpinion
September 30, 1970.
January 7, 1971.
Criminal Law — Possession or control of dangerous or narcotic drug — Constructive or joint possession — Sufficiency of evidence — Act of September 26, 1961, P. L. 1664.
In this case, in which it appeared that, following the receipt of information that a "pot" party was being held at a home, and surveillance of the home, a raid was conducted pursuant to a search warrant; that when the police officers entered the house seven people, including the four defendants, were found in the game room; that the seven individuals were guests at a party given by a woman who resided with her parents in the house; that the police found in the game room an open jar containing marijuana and four butts of marijuana cigarettes in an ash tray; that the open jar was on the floor in the center of the room, and the closest any of the defendants was to the jar was eight feet; that no marijuana was found on the person of any of the defendants, and none of the defendants was observed smoking marijuana cigarettes; and that the basis of the Commonwealth's case was the legal theory of constructive or joint possession; it was Held that the evidence was not sufficient to prove beyond a reasonable doubt that defendants were guilty of the possession or control of any dangerous or narcotic drug, prohibited by § 4 of the Act of September 26, 1961, P. L. 1664.
Mr. Justice EAGEN concurred in the result.
Mr. Justice O'BRIEN filed a concurring opinion.
Mr. Justice POMEROY filed a concurring opinion, in which Mr. Justice JONES joined.
Mr. Justice COHEN took no part in the decision of this case.
Argued September 30, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeals, Nos. 194, 195, 196 and 199, March T., 1970, from order of Superior Court, April T., 1969, Nos. 185, 189, 203 and 216, affirming judgments of Court of Common Pleas of Washington County, Sept. T., 1967, Nos. 329, 332, 334 and 335, in cases of Commonwealth of Pennsylvania v. Lilly Jane Florida; Same v. George E. Tirpak; Same v. Harry T. Collins; and Same v. Samuel G. Heckel. Judgments reversed.
Same case Superior Court: 216 Pa. Super. 310.
Indictments charging defendants with illegal possession of drugs. Before CURRAN, J.
Verdicts of guilty and judgments of sentence entered thereon. Defendants appealed to the Superior Court, which affirmed judgments of the court below, opinion by WATKINS, J., dissenting opinion by HOFFMAN, J., in which MONTGOMERY and SPAULDING, JJ., joined. Appeals to Supreme Court allowed.
Jerome Hahn, for appellant.
Sanford S. Finder, for appellant.
John W. Edwards, Jr., for appellant.
Walter W. Gregory, Jr., for appellant.
George E. Anthou, Assistant District Attorney, with him Richard DiSalle, First Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.
On the evening of May 1, 1967, a raid was made on an alleged "pot" party at 316 East McMurray Road, Peters Township, Washington County. This raid was conducted pursuant to a search warrant. An officer of the Allegheny County police received information that a "pot" party was being held at a home in Peters Township. The Peters Township police were alerted and a surveillance of the home was established. The surveillance disclosed that the lights were on in the house, that people were entering and leaving, and it was apparent that a party of some sort was going on in the house. The police then went to a local magistrate and informed the magistrate of what they had seen in their surveillance. Furthermore, the Allegheny County police officer related the information he had received from what he considered a reliable, confidential source.
The affidavit supporting the issuance of the search warrant was as follows: "On information received from a confidential source, I, Officer Gene A. Fetty, Peters Township Police Department, McMurray, Washington County, Pennsylvania, have just and reasonable grounds for believing and do believe that dangerous drugs and narcotics as defined [citing the statute] the exact quantity and type being to affiant unknown is being possessed, controlled, used, taken, and administered, by persons on the inside of a certain dwelling located at 316 East McMurray Road, Washington County, Pennsylvania, and I, the affiant, have cause to believe that some or all the persons in said dwelling have been using or under the influence of said drugs and narcotics."
When the police officers entered the house seven people, including the four appellants, were found in the game room. The seven individuals were guests at a party given by Ida Jane Jansma, who resided with her parents in the house. The police also found in the game room an open jar containing a substance which was later identified as marijuana, and four butts in an ash tray, which upon analysis were found to be butts of marijuana cigarettes. The open jar was on the floor in the center of the room, and the closest any of the appellants was to the jar was eight feet.
The hostess at the party, Ida Jane Jansma, pleaded guilty to possession of and using narcotics.
The four appellants were convicted of and sentenced for violation of Section 4 of the Act of September 26, 1961, P. L. 1664, 35 P. S. § 780-4(q), which prohibits the possession or control of any dangerous or narcotic drug. Section 4 reads, in pertinent part, as follows: "The following acts and the causing thereof within the Commonwealth are hereby prohibited: . . . (q) The possession, control, dealing in, dispensing, selling, delivery, distribution, prescription, trafficking in, or giving of, any dangerous or narcotic drug. . . ."
The Commonwealth admitted at the trial that no marijuana was found on the person of any of the appellants, and that none of the appellants was observed smoking marijuana cigarettes. Under these circumstances, the basis of the Commonwealth's case was the legal theory of constructive or joint possession. The Commonwealth attempts to prove this by proof of the appellants at the scene, opportunity to commit or join in the possession or control of the marijuana, guilt by association, and suspicion or conjecture. Under the particular facts and circumstances of this case, this is not sufficient to prove beyond a reasonable doubt that these four defendants were guilty of the crimes for which they were indicted and convicted, namely, the possession or control of drugs.
Order affirming the judgments of sentence is reversed, judgments of sentence are reversed, and defendants are discharged.
Mr. Justice EAGEN concurs in the result.
Mr. Justice COHEN took no part in the decision of this case.
I am in agreement with the opinion of the court that the evidence in this case was insufficient to establish the guilt of the four appellants. I would reverse for an additional reason, however.
The dissenters in the Superior Court, in my view, correctly concluded that the search warrant in this case was invalid. Therefore, even had the evidence seized been sufficient to support these convictions, that evidence should properly have been suppressed as being the fruit of an invalidly issued search warrant.
I concur in the result on the basis of the dissenting opinion in the Superior Court. Com. v. Tirpak, 216 Pa. Super. 310, 316 (1970).
Mr. Justice JONES joins in this concurring opinion.