Commonwealth v. Evans

• Court: Pennsylvania Superior Court
• Writing for the Court: Author: Watkins
• Citation: Commonwealth v. Evans, 210 Pa.Super. 454, 233 A.2d 585 (Pa. Super. Ct. 1967)
• Decision Date: 15 September 1967
• Parties: COMMONWEALTH of Pennsylvania v. Jack Richard EVANS, Appellant.

233 A.2d 585

210 Pa.Super. 454

COMMONWEALTH of Pennsylvania v. Jack Richard EVANS, Appellant.

Superior Court of Pennsylvania.

September 15, 1967.

Joseph M. Loughran, Dist. Atty., John K. Best John N. Scales, Asst. Dist. Attys., Greensburg, for appellant.

Edgar P. Herrington, Jr., Greensburg, for appellee.

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

WATKINS, Judge.

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Westmoreland County suppressing the evidence obtained under a search warrant. The Commonwealth's appeal is taken under the authority of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), which permits such an appeal when the Commonwealth can no longer proceed with the prosecution after the evidence involved is suppressed.

On the evening of January 4, 1966, at 10:30 p.m., an alarm, which had been installed in the home of Mrs. Richard Paul, by the Bell Telephone Company, was triggered. The purpose of the installation of the alarm by the company was to alert those in the Paul home that someone was tampering with the coin box in the public telephone booth located almost directly across from the Paul home. The Pauls were then to alert the company and the police of apparent tampering.

As a result of the alarm, Mrs. Paul immediately called the Township Police Station. She informed the police that she and her children were observing the booth from a window in the home. They observed a man leaving the booth and getting into a station wagon which was dark in color--wine-colored or maroon,--either a Pontiac or an Oldsmobile. They observed the man leave the booth and get into the station wagon, which had a luggage rack on top, and pull into traffic on Route 30 travelling in a westerly direction.

The police when notified by the Pauls of what they had observed, radioed two patrol cars giving them the necessary information. As a result of the information, a 1965 Oldsmobile was stopped about one and one-half miles from the telephone booth. It was a maroon Oldsmobile station wagon with a luggage rack on top.

The officer did not search the car, although he was able to observe a bag of silver coins on the floor of the car. The appellee agreed to accompany the officer to the police station but no arrest was made. The car was parked upon arrival and was not searched until a search warrant was obtained from a Township Justice of the Peace. Upon searching the car numerous articles were found including a leather bag containing two pennies, $6.34 in nickels, $22.30 in dimes, $9.50 in quarters and $11 in halves; a claw hammer; 7 pairs of assorted pliers 1 speedy screw-driver with 4 screw-driver bits; 5 assorted screw-drivers; assorted wrenches and other articles of a suspicious nature in view of the alleged charge,--47 itemized articles in all.

The search warrant in question was issued by Justice of the Peace Richard Hershberger upon the oath and affidavit of Sgt. Baker of the Township police. The affidavit reads as follows:

'Commonwealth of Pennsylvania

County of Westmoreland ss:

'Before me, the subscriber Richard C. Hershberger, Justice of the Peace in and for the County and Commonwealth aforesaid, personally appeared Sgt. Frank E. Baker, North Huntingdon Township Police who being duly sworn, according to law, doth depose and say that he has probable cause to believe that certain articles to-wit: Tools, i.e., files, spring steel wire, Pliers, screw-drivers and a Vice and certain United States currency in Nickels-dimes and quarters are unlawfully in the possession of one Jack R. Evans, and are located in a 1965 Oldsmobile Station Wagon, Wine (maroon) colored bearing New York registration 4719G, such vehicle having no fixed address, none can be given. Such United States currency late to have been stolen from coin Telephone and said tools to be used as aid in such theft. Informants witnessed said vehicle at telephone booth in question, scene of alleged crime, at time alarm sounded. Informants believe a crime was committed.

SWORN and subscribed before me this

5th day of January A.D. 1966

/s/ Richard C. Hershberger

/s/ Frank E. Baker

Richard C. Hershberger, Justice of the Peace My Commission Expires First Monday in January, 1968.'

Notes of testimony disclose that Sgt. Baker testified as follows: 'Q. Did the Squire go into a hearing as to the reasonableness of your request for a search warrant? A. He did, sir. Q. Before he issued it? A. Yes, sir. Q. And did he issue that warrant? A. He did, sir.' And the Justice of the Peace testified as follows: 'Q. Did you inquire as to the reasonableness of the issuance of it (search warrant)? A. I did. Q. And did you feel that the request for the warrant in this case was a reasonable one or not? A. I felt that it was reasonable.'

We agree with the court below that the sole issue there and here is whether 'the search and seizure involved herein were made pursuant to a constitutionally-sound search warrant issued on the basis of a sufficient complaint and affidavit.'

The court below relies heavily on Commonwealth v. Smyser, 205 Pa.Super. 599, 211 A.2d 59 (1965) and suppressed the evidence on the ground that 'the affidavit provides no basis for the detached and independent magisterial determination which the Fourth Amendment to the United States Constitution and Article 1, Section 8, of the Pennsylvania Constitution require. Under the Fourth Amendment, mere affirmance of belief or suspicion is not enough. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).'

The instant case can very easily be distinguished from the Smyser case, supra. In the first place, the officer on stopping the car and viewing the bag of coins on the floor of the car could justifiably have made a lawful arrest without a warrant and so searched the vehicle. This case presents a rather classic case for a search and seizure incident to a lawful arrest. Com. v. One 1955 Buick Sedan (Scott, Aplnt.), 198 Pa.Super. 133, 182 A.2d 280 (1962); Commonwealth v. Czajkowski, 198 Pa.Super. 511, 182 A.2d 298 (1962).

But the arrest was not made, perhaps out of an abundance of caution in view of recent interpretations by the courts as to constitutional safe-guards and regulations, and the appellee was asked, and did accompany the officer to the police station. The police officer then obtained a warrant. A Justice of the Peace or magistrate may properly issue a search warrant only if he can find probable cause therefor from the facts and circumstances presented to him under oath or affirmation. Com. v. Ametrane, 205 Pa.Super. 567, 210 A.2d 902 (1965); Com. v. Smyser, supra; Com. v. Alvarez, 208 Pa.Super. 371, 222 A.2d 406 (1966); Com. v. Griffin, 200 Pa.Super. 34, 186 A.2d 656 (1962); Com. v. Scull, 200 Pa.Super. 122, 186 A.2d 854 (1963).

In the Ametrane case, supra, the application for search warrant stated as follows:

'Complaints and information received from persons of reliable and good reputation, which your affiant has reason to believe and does believe to be true and upon which he has relied in making this affidavit that the accused takes horse bets over the telephone and from other persons at the above address all day.

'Personal knowledge, that County Detectives were assigned to investigate the original complaint; that the undisclosed agent reported the placing of horse bets and that your affiant has personally observed this location for some time and from their reports and my personal knowledge and experience in such activities the original complaint has been corroborated.' We like the statement of the Commonwealth that:

'What is prohibited by both constitutions and by the case law of Pennsylvania, as herein above set forth, is the issuing of a search warrant on affidavits or complaints which are particularly conclusory in nature, which state only the affiant's belief that particular cause exists without describing in any detail the facts or circumstances upon which such a conclusion or belief is based. Every case cited holds this to be the law. The problem, however, becomes one of case by case interpretation of the particular facts existing in each separate incident. No two cases are the same. It is significant also that the Court, in the Ametrane case, emphasizes the necessity of a common-sense approach in these matters. The Court states and quotes from the U.S Supreme Court, at page 572 (210 A.2d at page 904), as follows: 'If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no...