Opinion
June 13, 1972.
September 15, 1972.
Criminal Law — Search and seizure — Warrant — Probable cause — Personal observations of agent experienced in narcotics — Warrant calling for execution in daytime — Execution some twenty-five minutes before sun rose.
1. In this case in which defendant contended that certain contraband had been seized in violation of his Fourth Amendment rights and that an analysis of the marijuana seized could not therefore be a basis for an affidavit of probable cause for the issuance of a search warrant, it was Held that the personal observations of an agent, experienced in narcotics, totally apart from the analysis, constituted sufficient probable cause.
2. The contention of defendant, that the search was illegal because the warrant, calling for execution in the daytime, was executed some 25 minutes before the sun rose, was Held to be without merit.
Criminal Law — Sentence — Drugs — Offense similar to one set-out in The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. , § 39(a).
3. The new penalties provided by The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. , § 39(a), apply "in any case not yet final if the offense is similar to one set out" in the Act, provided, that the penalties under the Act are "less than those under prior law".
Argued June 13, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 1194, Oct. T., 1971, from judgment of sentence of Court of Common Pleas of Lancaster County, No. 416 of 1970, in case of Commonwealth of Pennsylvania v. Charles DiSantis. Judgment of sentence affirmed and case remanded.
Indictment charging defendant with unlawful possession of marijuana. Before JOHNSTONE, JR., J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Bernard L. Segal, with him William A. Atlee, Jr., Segal, Appel Natali, and Geisenberger, Zimmerman, Pfannebecker Gibbel, for appellant.
Henry J. Rutherford, District Attorney, with him D. Richard Eckman, First Assistant District Attorney, for Commonwealth, appellee.
An undercover agent took from appellant's premises a marijuana cigarette butt, and a handful of marijuana. The appellant contends that the taking of both items was in violation of the Fourth Amendment and that, therefore, their analysis could not be a basis for an affidavit of probable cause for the issuance of a search warrant. The record shows, however, that even if the analysis of the two items is disregarded, sufficient probable cause for the search warrant was established by the personal observations of the agent who was experienced in narcotics. Commonwealth v. Johnson, 198 Pa. Super. 51, 182 A.2d 541 (1962) (allocatur denied); Commonwealth v. Garrick, 210 Pa. Super. 124, 232 A.2d 8 (1967). He testified that he saw on the premises the smoking of a yellow hand-rolled cigarette which looked and smelled like marijuana, and that three days later he observed on the premises a jar with green grassy material which to him appeared to be marijuana. These observations, totally apart from the analysis, constituted sufficient probable cause for the search warrant.
We consider without any merit the contention that the search was illegal because the warrant, calling for execution in the daytime, was executed some 25 minutes before the sun rose.
The appellant contends that the sentence of 6 to 23 months for possession of 4 1/2 ounces of marijuana constituted cruel and unusual punishment. We need not consider that question because the legislature has provided by The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. § 39(a), 35 P. S. § 780-139, that the new penalties in that Act apply in any case not yet final if the offense is similar to one set out in this act," provided that the penalties under the Act are "less than those under prior law." Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972).
Judgment of a sentence affirmed but the case is remanded for modification of the sentence pursuant to The Controlled Substance, Drug, Device and Cosmetic Act.