Com. v. Ambers

• Decision Date: 19 September 1973
• Citation: 310 A.2d 347,225 Pa.Super. 381
• Parties: COMMONWEALTH of Pennsylvania v. Thomas AMBERS, Appellant.
• Court: Pennsylvania Superior Court

Page 347

310 A.2d 347

225 Pa.Super. 381

COMMONWEALTH of Pennsylvania v. Thomas AMBERS, Appellant.

Superior Court of Pennsylvania.

Sept. 19, 1973.

Petition for Allowance of Appeal Denied Dec. 19, 1973.

Paul A. Prince, Asst. Public Defender, Norristown, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, 1st Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., J. David Bean, Asst. Dist. Atty., Norristown, for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

HOFFMAN, Judge:

Appellant contends that this Court should reverse his conviction for conspiracy to possess narcotics and possession and use of narcotics because his conviction was based on an unlawful search and seizure and insufficient evidence.

On September, 13, 1971, appellant's wife informed the Lansdale police department that her husband had violated his probation by checking into Montgomery Hospital for treatment related to drug use. She also stated that he could be found in Ann Winters' apartment--Apartment B--3, Kenilworth Court Apartments in Lansdale. On the following day, an informant corroborated Mrs. Ambers' statement and provided the police with other information regarding Ambers and Winters. On the basis of this information a Lansdale police detective appeared before District Judge Sherwood Zepp at 3:00 p.m. on September 14 and presented him with the following affidavit:

'5. The facts upon which I rely and which I believe establish probable cause for the issuance of a search warrant are: based on information from a confidential informant, who has supplied information in the past which proved reliable and resulted in at least (5) arrest who stated that one Thomas AMBERS, a convicted drug user (recently discharged from Montgomery Hospital for drug addiction) is presently on premises, along with Ann WINTERS (Lessee of Apt) and they are in possession of and using HEROIN.

'That said informant, through personal conversation with AMBERS and WINTERS was advised they are 'holding'. In addition informant has on many previous occasions witnessed HEROIN and paraphernalia being used, possessed and controlled by AMBERS, WINTERS and others.

'That this officer (affiant) on several occasions has confiscated drugs & paraphernalia in adjacent laundryroom, there concealed by WINTERS.'

The detective also provided the Justice with the following oral information: 1) the content of his conversation with Mrs. Ambers; 2) That subsequent to his discovery of heroin in the laundryroom, he warned Winters not to hold heroin; and 3) The names of people whose arrests were based on the informant's earlier tips. Given these facts, the Justice issued a search warrant for the Winters' apartment.

Armed with this warrant four members of the Lansdale police proceeded to the apartment and knocked on the door which had a peephole. The police testified that they heard footsteps approaching the door followed by footsteps and scuffling retreating from the door of the apartment. The detective then knocked again and announced 'Police, we have a warrant.' Following a fifteen to thirty second delay, the officer forced the door. They found the appellant in the living room and Winters, her child, and another woman in the bedroom. The officers read the search warrant to Winters, the lessee of the apartment. In searching the premises, the officers found heroin and other drug paraphernalia in the kitchen and the bathroom. Both Ambers and Winters were under the influence of heroin at this time.

The test for determining the validity of a search warrant is that pronounced in the leading case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) . . . an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant provided the magistrate is informed of some of the underlying circumstances from which the Officer concludes that the informant, whose identity need not be disclosed, is credible or his information reliable. Thus briefly in recapitulating, Aguilar sets forth two requirements which must be met in the affidavit before a search warrant can be properly issued: (1) the setting forth of underlying circumstances from which the Informer concludes the items in issue are where he said they were, and, (2) the setting forth underlying circumstances from which the Officer affiant concludes that the informer is credible or his information reliable.' Commonwealth v. Somershoe, 215 Pa.Super. 246, 249--250, 257 A.2d 341, 343 (1969). The first requirement may be met where the affidavit either sets forth the manner in which the informant obtained his information or describes the criminal activity in detail. Commonwealth v. Soychak, 221 Pa.Super. 458, 465, 289 A.2d 119 (1972). The second requirement may be met in several ways, one of which is by establishing the informant's past reliability. Commonwealth v. Soychak, supra, 221 Pa.Super. at 464, 289 A.2d 119. In determining whether or not the Aguilar test has been met, the courts may consider the oral testimony presented to the magistrate as well as the affidavit. Commonwealth v. Fisher, 223 Pa.Super. 107, 110, 296 A.2d 848 (1972).

The circumstances from which the informant concluded that there was heroin in the apartment were set forth in the affidavit; Ambers told the informant about the heroin in the Winters apartment on the morning that the warrant was issued. The informant's credibility also was satisfactorily established for his tips had led to five prior arrests. Thus, the Aguilar test was met herein. Nevertheless, appellant contends that the search warrant should not have been issued because the evidence presented to the magistrate was unsubstantiated hearsay. There are four factors which should be considered in determining whether or not there is a substantial basis for crediting the hearsay: 1) Did the informant give prior reliable information? 2) Was the informant's story corroborated by any other source? 3) Were the informant's statements a declaration against interest? 4) Does the defendant's reputation support the informant's tip? Commonwealth v. Falk, 221 Pa.Super. 43, 46--47, 290 A.2d 125 (1972). Each and every factor need not be satisfied for the court to uphold the validity of the warrant, but three were satisfied herein. First, the informant had provided the police with information leading to five prior arrests. Second, Ambers' presence in Winters' apartment was corroborated by Mrs. Ambers. Third, appellant was known to the police to be a narcotics user. Thus, there is a substantial basis for crediting the hearsay present in the affidavit.

Appellant also alleges that the affidavit was defective because no time was given establishing the date of the conversation between the appellant and the informant. This allegation is unfounded; the magistrate knew that Ambers spoke to the informant and told him that there was heroin in the apartment on the day the warrant was issued.

Appellant further contends that the affidavit upon which the search warrant was based contained the following erroneous information: 1) Ambers was a convicted drug user; 2) Winters had concealed drugs and paraphernalia in the laundryroom adjacent to the apartment; and 3) The informant received his information in conversations with both Ambers and Winters. Only the third point was a clear misstatement of fact; the informant had only spoken to Ambers. Courts will not invalidate search warrants based on illegally obtained evidence provided that 'there are Sufficient valid grounds in the present affidavit to constitute probable cause.' Commonwealth v. Soychak, supra, 221 Pa.Super. at 464, 289 A.2d at 123 (emphasis added). Analogously, the presence of a misstatement of fact in an affidavit will not invalidate a search warrant provided that the affidavit includes sufficient valid facts to constitute probable cause. Although a misstatement may be so egregious as to require the invalidation of a warrant, this is not the case herein.

In Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), the Supreme Court held that a defendant has a...