Commonwealth v. Dial

• Decision Date: 23 March 1971
• Citation: 218 Pa.Super. 248,276 A.2d 314
• Parties: COMMONWEALTH of Pennsylvania v. Charles DIAL, Appellant.
• Court: Pennsylvania Superior Court

276 A.2d 314

218 Pa.Super. 248

COMMONWEALTH of Pennsylvania v. Charles DIAL, Appellant.

Superior Court of Pennsylvania.

March 23, 1971.

Application for Allocutur Granted July 30, 1971.

Daniel M. Berger, Robert E. Tucker, George H Ross, H. David Rothman, Pittsburgh, for appellant.

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

JACOBS, Judge.

This appeal raises the constitutionality of three searches and seizures the fruits of which were introduced against appellant at his trial before a judge without a jury.

After indictments were returned against appellant, and before trial, he moved to suppress the evidence seized. The evidence was suppressed in one case, but the motion was refused in three cases which for convenience we will call No. 173, No 235, and No. 303. No. 173 charged appellant with unlawful possession of narcotic drugs on June 28, 1968. No. 235 charged him with unlawful possession of narcotic drugs on July 11, 1968, and, in a second count, with maliciously loitering and prowling on the same date. In No. 303 he was charged with unlawful possession of narcotic drugs on August 2, 1968. In each case the evidence seized consisted of narcotics, together with a hypodermic needle in one case.

The appellant was tried before the court without a jury and found guilty on all counts except malicious loitering and prowling at No. 235. Appellant moved for a new trial and in arrest of judgment raising the admissibility of the evidence seized. His motions were refused and he was sentenced as follows: On No. 173 he received five to twenty years; on No. 303 he received five to twenty years to run concurrently with the sentence on No. 173. Sentence was suspended on No. 235.

Nos. 173 and 303 involve searches conducted with warrants while No. 235 involves a search incident to an arrest. We will first discuss the cases in which warrants were used.

On No. 173 the police searched appellant's apartment. The lower court found that the police, armed with a warrant, knocked on appellant's door, announced that they were police and had a search warrant, heard running inside, and broke down the door. They found appellant hiding in the cellar. A search of the apartment produced the narcotics. Although appellant claims that he didn't run until the police broke down his door, the lower court was the trier of facts and its findings are supported by the testimony. See Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1969).

The affidavit for the search warrant was made by a police officer in the following language:

'Information received this date that subject Charles Dial of 2007 Webster Ave is selling cocaine and heroin on Centre Ave at Arthur Sts. and that he is packaging same in his residence. Subject Charles Dial is known to the narcotic squad as a dealer in narcotics having been arrested by Federal Agents three weeks ago for sale of heroin. Informant has supplied information in the past leading to the arrest of Meryl Bedford and Mary Hughes at 226 Dinwiddie St. and a large seizure of heroin and cocaine also the arrest of Robert Monroe at 2040 Forbes St. and a large seizure of marihuana. Affiant observed this subject on this date transacting business with known drug addicts on Centre Ave. in vicinity of Arthur St. in company with members of narcotic squad, after this survelliance this warrant was obtained.'

Appellant argues that the search warrant does not contain sufficient underlying facts to permit the magistrate to issue the search warrant and further that the execution of the warrant was unreasonable. We disagree on both points.

'* * * (I)t is now well established that a magistrate may not constitutionally issue a search warrant until he is furnished with information sufficient to persuade a reasonable man that probable cause for the search exists. 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); Commonwealth v. Alvarez, 208 Pa.Superior Ct. 371, 222 A.2d 406 (1966). * * * And his decision must be based solely on the information brought to his attention. Aguilar v. Texas, supra.' Commonwealth v. D'Angelo, 437 Pa. 331, 336, 263 A.2d 441, 444 (1970).

An affidavit for a search warrant may be based on hearsay information. In order for the hearsay to constitute probable cause, however, it must satisfy the two-prong test set forth in Aguilar v. Texas, supra: '(T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, And some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable." 378 U.S. at 114, 115, 84 S.Ct. at 1514. (Emphasis added.)

The affidavit clearly indicates the circumstances showing why affiant relied on the informant. Those circumstances were the prior arrests resulting in large seizures of illegal narcotics and would justify an independent finding of reliability.

The second requirement of Aguilar, that the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were in appellant's apartment, is not met by the informant's tip. However, such underlying circumstances may be supplied by other allegations in the warrant which corroborate the information contained in the hearsay report. Spinelli v. United States, supra. In the present case corroborating evidence is supplied by affiant's own surveillance. Affiant averred that, on the same date the informant's information was received, he observed appellant 'transacting business' with known drug addicts on Centre Avenue. At the suppression hearing affiant testified that the expression 'transacting business' meant 'dealing in dope'. A commonsense reading of the affidavit supports this testimony. Police surveillance thus corroborated a major part of the informant's information; to wit, that appellant was dealing in narcotics on Centre Avenue. This showed that the informant was not fabricating the story and supplies enough facts to support the informer's conclusion that appellant was preparing the narcotics in his apartment.

As pointed out in Spinelli, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a relevant comparison. In that case the informant's tip was followed and an arrest and incidental search disclosing narcotics was made. The informant described minutely the clothes the suspect would be wearing and the time of his arrival by train. Upon meeting the specified train the police saw a man whose dress corresponded exactly with the informer's description. Having personally verified that much of the information, the court held the police had probable cause to arrest the suspect.

See also, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), a narcotics case where an arrest on view and incidental search was upheld on information received. There the Aguilar test was applied to the officers' determination of probable cause to make the arrest, giving way to the officers' personal observation of the suspect. Such observation did not include seeing narcotics being sold or carried, but only suspicious circumstances which, in our opinion, were less probative than 'transacting business'.

The execution of the warrant was reasonable. Pennsylvania, in determining whether an entry is reasonable, appears to have adopted the constitutional standards embodied in 18 U.S.C. § 3109. Commonwealth v. Newman, 429 Pa. 441, 444, 240 A.2d 795, 797 (1968). This statute states: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance * * *.' Here the officers came to the closed door, and announced their identity, authority, and purpose. When they heard sounds of running and the door was not opened, they were warranted in thinking that they were refused admittance and that an effort was underway to destroy evidence. They did not need to wait until the evidence was destroyed. McClure v. United States, 332 F.2d 19 (9th Cir. 1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965); Masiello v. United States, 317 F.2d 121 (D.C.Cir.1963).

On No. 303 the appellant was personally searched in a bar by officers armed with a search warrant. All the information given to the magistrate, who issued the warrant to search the person of appellant for narcotics, is contained in the affidavit for the warrant which reads (without any corrections) as follows:

'Charles Dial is a known narcotic addict and dealer who had been arrested by me twice before on the 25th of May and again on the 28th of June 1968 after raids on his house at 2007 Webster Ave and seizures of a large amount of narcotics: Also on the 30th of April I arrested him on a bench warrant for sales to a Federal Narcotics agent.

'Also on the 11 of July Charles Dial was seen by Chester Howard and myself at Benny's bar talking with Lenord 'SHANK' Rose and Arnold TWEETS Holliday known narcotics pushers and in the past weeks he's has been in the bar and constant meeting with the same pushers and other known or suspected narcotics addicts: Wendell Johnson, Donald Jackson etc. and the meetings has always been brief as in the pattern of the narcotics pushers therefore I have reason to believe that he (Charles Dial) is still dealing in narcotics and request that a search warrant be issued for Charles Dial and also his house at 2007 Webster Ave.'

This warrant was constitutionally defective because the...