Eckert, In Interest of
| Decision Date | 14 December 1978 |
| Citation | 393 A.2d 1201,260 Pa.Super. 161 |
| Parties | In the Interest of Michael Lynn ECKERT, a minor and Zachery S. Eckert, a minor. Appeal of Michael LYNN, a minor and Zachery S. Eckert, a minor. |
| Court | Pennsylvania Superior Court |
Robert E. Kerper, Jr., Asst. Public Defender, Reading, for appellant, Michael Lynn Eckert.
Ralph W. D. Levan, Asst. Public Defender, Reading, for appellant, Zachery S. Eckert.
J. Michael Morrissey, Dist. Atty., Reading, for appellee.
Before WATKINS, former President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
This appeal is taken from an order of the court below refusing to suppress evidence and adjudicating the minor appellants delinquent. The issue we must decide is whether the lower court erred in determining that sufficient probable cause was presented to the magistrate to justify the issuance of the initial warrant to search the premises. 1 For the following reasons, we find no error, and therefore affirm the order entered below.
Early in the morning of September 2, 1976, between 6:00 and 6:30 a. m., several shooting incidents occurred in the vicinity of the 100 block of Penn Street in Reading. Two automobiles and a bakery truck were struck by bullets, and a machine shop in the area was fired upon.
On the same day, between 1:00 and 7:00 a. m., a cafe located immediately north of the area of the shootings was broken into, and several bottles of whiskey, cases of beer, cigarettes, cans of soup and snack foods were removed, along with money taken from amusement and vending machines that were forced open.
Later the same morning, Detective Lorrin Young of Reading Police Department was sent to investigate the cafe burglary, after also having been informed of the shooting incidents. After speaking with the owners of the cafe and obtaining a verbal inventory of the stolen items, Officer Young went to the area of the shootings, where a police investigation was underway.
After the police had determined that the shots came from the north (odd-numbered) side of the 100 block of Penn Street, they searched all houses in the row, which were vacant and boarded up, except for 141 Penn Street, which was occupied by the Eckert family. While Officer Young and other policemen were on the fire escape of 139 Penn Street, they observed several spent .22 caliber cartridges on the second-floor roof of 141 Penn Street.
Young subsequently filed an application for a search of the Eckert home and seizure of a .22 caliber rifle, .22 caliber bullets, .22 caliber spent shells, and sneakers with a tread design similar to prints seen on the roof of 139 Penn Street. The warrant was issued, and the search yielded a .22 caliber rifle, .22 caliber bullets, and .22 caliber spent shells. During the search, Young observed items within the house similar to items described as stolen from the Sixth Ward Cafe, and secured a warrant to seize these items.
Mrs. Eckert and her two sons then accompanied the police to City Hall, where each boy gave a statement admitting participation in the cafe burglary and the shootings. The juveniles were then processed by the juvenile probation office, and subsequently adjudicated delinquent in the court below after their motion to suppress evidence was denied. This appeal followed.
Appellants contend that the initial warrant to search their residence was issued without probable cause because the application for the warrant does not connect the information presented to 141 Penn Street.
The application describes the premises to be searched as follows:
Three (3) story red brick building located at and Known as 141 Penn. St. Reading, Berks Co. Penna.
The items to be searched for and seized are described as
.22 Cal. Rifle (Make unknown) and any .22 Cal. Bullets. Also any Spent (empty, or used) .22 cal. cartridges, which may be in the building or on the roof of this building. Any sneakers which have tred design similar to the sneaker, prints seen by officers near spent cartridges found on the roof of 139 Penn St. Reading, Berks, Pa.
And, finally, the probable cause section sets forth the following facts:
Investigation revealed a sniper shot at and hit several autos and houses in the area of the 100 blk. Penn. St. Investigation led to the checking of the vacant buildings in the 100 blk. Penn. St. Officers observed empty .22 Cal shell casings on the roof of the only occupied building in the row of homes where the shots are believed to have originated from.
Investigation was limited to the 100 Blk. Penn. St. due to the fact, all autos were hit while entering or leaving the Penn St. Bridge at second and Penn St. Reading.
Appellants argue, and the dissent agrees, that the warrant application fails to connect any of the information presented with the premises to be searched, because at no point is the "only occupied building in the row of homes" identified as 141 Penn Street. A common sense reading of the application leads us to a different conclusion.
We agree with appellants that the language in the application to the effect that spent cartridges were found on the roof of 139 Penn Street must have been a misstatement. 2 We disagree, however, with the legal effect thereof.
A necessary prerequisite to the issuance of a valid search warrant is the presentation to a magistrate by the affiant of sufficient information to persuade a reasonable person that probable cause to search exists. The seminal case in this area is Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970), wherein the Court invalidated a search warrant based upon the affiant's misstatement that the defendant had already been identified as a robber. From later cases, the rule has evolved that D'Angelo only applies to deliberate misstatements of material facts. Commonwealth v. Jones, 229 Pa.Super. 224, 323 A.2d 879 (1974). 3
The test of materiality is not whether the misstatement strengthens the application, but rather whether the misstatement is essential thereto. Commonwealth v. Yucknevage, --- Pa.Super. ---, ---, 390 A.2d 225, 227 (1978). This test is performed by deleting the misstatement and then determining whether sufficient probable cause remains in the application to issue a valid warrant. Commonwealth v. Tucker, 252 Pa.Super. 594, 384 A.2d 938 (1978); Commonwealth v. Scavincky, 240 Pa.Super. 550, 359 A.2d 449 (1976).
Applying these standards to the case at bar results in the magistrate having been presented with the following facts:
a) Sniper shooting was directed at several homes and automobiles in the area of the 100 block of Penn Street;
b) Police...
To continue reading
Request your trial
-
Gartley, In re
...320 Pa.Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983); In Interest of Eckert, 260 Pa.Super. 161, 393 A.2d 1201 (1978). Thus, challenges to the specificity of the warrant have been rejected in cases where only a street address was supplied, or......
-
Com. v. Cameron
...privacy concerns are not necessarily present when one is discussing not a home, but a mere structure. 5 See In re Eckert, 260 Pa.Super. 161, 167, 393 A.2d 1201, 1204 (1978) (police did not need a warrant to enter a vacant house). Cf. Commonwealth v. Coyle, 415 Pa. 379, 397, 203 A.2d 782, 79......
-
Com. v. Chamberlain
...the building itself. Therefore, appellant's argument is without merit. The facts of this case are similar to those of In re Eckert, 260 Pa.Super. 161, 393 A.2d 1201 (1978). There police officers found empty .22 cal. shell casings on a roof of a building while investigating a sniper attack i......
-
Com. v. Goldhammer
...still leave sufficient facts to establish probable cause. Therefore, the misstatement is not material, In Interest of Eckert, 260 Pa.Super. 161, 393 A.2d 1201 (1978), and suppression was properly Appellant next contends that the evidence was insufficient to support the forgery convictions b......