Commonwealth v. Bove

• Decision Date: 15 June 1972
• Citation: 293 A.2d 67,221 Pa.Super. 345
• Parties: COMMONWEALTH of Pennsylvania v. Frank BOVE, Appellant.
• Court: Pennsylvania Superior Court

293 A.2d 67

221 Pa.Super. 345

COMMONWEALTH of Pennsylvania v. Frank BOVE, Appellant.

Superior Court of Pennsylvania.

June 15, 1972.

A. A. Guarino, Philadelphia, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING CERCONE and PACKEL, JJ.

CERCONE Judge:

Appellant Frank Bove, was found guilty in a non-jury trial of possession of narcotics and dangerous drugs and was sentenced by the Common Pleas Court, Criminal Division, of Delaware County. He now appeals to this court from the judgment of sentence.

Appellant contends that the lower court erred in permitting the Commonwealth to introduce evidence against him resulting from a search authorized by a search warrant issued by a district justice of the peace of Delaware County. This warrant was issued on February 11, 1971 on information received by the police officer from an informant on January 8, 1971, over one month prior to the issuance of the warrant. Appellant was arrested on February 11, 1971 after the evidence in question was located on his premises. Appellant's conviction resulted solely from the admission of the evidence seized as a result of the search authorized by the warrant. The salient questions involved in his motions for a new trial and in arrest of judgment are probable cause for issuance of the warrant and the timeliness of the warrant.

The search warrant was issued solely upon the written affidavit of Officer F. Bunting, a narcotics officer. The affidavit reads as follows:

'Commonwealth of Pennsylvania

'County of Delaware §§

'On the 11th day of February 1971, before John H. Clune Esq. one of the District justices of the Peace in and for the said County, personally appeared Francis C. Bunting, Narcotics Officer who, being sworn according to law, doth depose and say that, in the County aforesaid, on or about the 11th day of February 1971, one Frank Bove of 108 Copley Road, Upper Darby, Pa., has in his house Dangerous drugs and Narcotic paraphanalia. The above information was given to Narcotics Officer Francis Bunting by one Barry Todd of 2528 Belmont Ave., Ardmore, Pa. who stated that on Friday, January 8th, 1971 at approximately 5 PM he went to Frank Bove's house at 108 Copley Road Upper Darby, Pa. and purchased spoon of Methadrine for sum of $30.00. After purchasing the Methadrine he discovered there was not $30.00 worth of Methadrine in the bag given to him by Frank Bove. He went back to Frank Bove's House and he gave the additional Methadrine in the bag given to him by Frank Bove. On several other occasions I have been to Frank Bove's house, and on these occasions saw a supply of drugs which were kept in a safe in Frank Bove's bedroom. I also know he keeps drugs in other parts of the house. 108 is a two story in height, of brick construction, and is considered to be a twin home. Said home also has an enclosed porch.

I hereby request a search warrant for the above mentioned premises since I believe that there is probable cause for the issuance of a search warrant for reasons stated above. All this contrary to the Form of the Act of Assembly in such case made and provided, and against the Peace and dignity of the Commonwealth of Pennsylvania, and further saith not.

Signed, Francis C. Bunting

Deponent

Sworn to and subscribed fore me this 11th day of February 1971.

John H. Clune (SEAL)

Justice of the Peace

My Commission Expires 1st

Monday of January 1976.'

In order for a search warrant to be issued, it is necessary that facts establishing probable cause be presented before the issuing authority: Spinelli v. United States, 393 U.S. 410 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In determining whether such probable cause existed this court may only consider evidence that was presented to the issuing authority. This evidence may also include oral testimony presented to the issuer, as well as the written information supplied in the sworn affidavits: Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966). In this case the only information that was presented to the issuing authority was that contained in the affidavit of Officer Bunting. Therefore, probable cause in this case must be established on the face of the affidavit standing alone.

There would be no problem finding probable cause based on the circumstances of this case had the affiant received the information from the informant on the day of the alleged sale by the appellant to the informant or within a reasonable time thereafter and then procured the search warrant. Probable cause must be established At the time that the warrant was issued: Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). The lower court below felt that probable cause was established at that time. With this conclusion we must disagree.

There is no merit in appellant's argument that the informer in this case was unreliable since he had never supplied information to the police previously. Our court rejected this argument in Commonwealth v. Crawley, supra, where we held that if the information of the informant is otherwise reliable, this lack of prior informing will be no bar to a showing of probable cause. ^[1] There must, of necessity, be a first time for each informant to supply his information; otherwise no informant could ever become qualified as a reliable source. The contention of the appellant that the informant's statement was unreliable because he was not a user or habituate also has no merit and is not supported by the authorities. Furthermore, it is not necessary that the affiant have personal knowledge of any possession of drugs by the defendant. An affidavit may be based on hearsay information when there is a 'substantial basis for crediting the hearsay and need not reflect the direct personal observations of the affiant: Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, although there may have been probable cause for the issuance of a warrant At the time of the alleged sale to the informant, there was no probable cause for such issuance over one month later. There were no intervening events between the time of the sale to the informant and the issuance of the warrant which could have provided underlying circumstances for probable cause. We are asked to find probable cause for a present search based on an alleged isolated sale which occurred more than a month prior to that search.

The Pennsylvania Supreme Court has provided strong authority against this result in the case of Commonwealth v. Shaw supra. In that case an undercover agent personally witnessed the use of marijuana on defendant's property in April 1968. Rather than make an immediate arrest, he chose to...