Commonwealth v. DeLuca

*399Dissenting Opinion by

Hoffman, J.:

The sole issue in this appeal is whether probable cause existed for the issuance of a search warrant, the execution of which resulted in the seizure of “numerous sheets of paper listing numbers plays for 38 days, and approximately 30 names, in excess of 90,000 plays for in excess of $75,000.00 and Tally work for $80,000.00.” As a result, the defendant-appellees Julia and Anthony DeLuca were arrested and charged with thirty-eight counts of illegal lottery and conspiracy. A motion to suppress was heard by the Honorable Jerome A. Zaleski, sitting as a judge of the Municipal Court. Said motion was granted, and the Commonwealth appealed to the Court of Common Pleas. On December 12, 1973, the Honorable Ethan Allen Doty, after hearing argument, affirmed Judge Zaleskt’s ruling, and the instant appeal followed.

The facts adduced at the suppression hearing are as follows:

On October 24, 1972, at approximately 1:20 p.m., Officer Francis Selgrath of the Philadelphia Police Department was executing a search warrant inside the premises of Anna Silver of 3570 Belgrade Street. During the course of the search, numbers and horse bets were “placed” with Officer Selgrath who answered the telephone and informed the callers that Ann was not present. One such phone call was made by a female caller identifying herself as “Sparky”. She asked for Ann, and then placed twenty-four straight plays worth $107.00. Officer Selgrath asked the caller if she wanted Ann to return her call, whereupon she gave him a phone number where she could be reached: DE 2-6851. The officer immediately checked with Bell Telephone Company and the voter registration lists and determined that the phone was located at 6912 Hegerman Street, which was owned by Julia and Anthony DeLuca.

*400At 4:25 p.m. on the same day, Officer Selgratb. presented a search, warrant detailing the aforesaid facts and requesting authorization to search the premises at 6912 Hegerman Street. Upon the officer’s oath, the Honorable Thomas Marotta, Judge of the Municipal Court, approved and signed the warrant.1

In suppressing the physical evidence found at the residence of the appellees, Judge Zaleski held that the information contained in the warrant was deficient because of the absence of any evidence that “Sparky” and Julia DeLuca were the same person, and because the warrant left to conjecture that “Sparky” was actually calling from 6912 Hegerman Street. Without setting up a surveillance to determine whether there was any evidence of a gambling operation at the defendants’ residence and without calling the furnished telephone number to ascertain if the voice at the other end answered to the nickname “Sparky”, Judge Zaleski refused to supply certainty to a warrant supported merely by information that the number had been traced to the searched premises.

*401While I agree that in close cases, we should read a warrant in a common sense fashion finding legality whenever possible, Commonwealth v. Matthews, 446 Pa. 65, 285 A. 2d 510 (1971), this “deference” does not entitle us to plunge into conjecture and surmise. The prerequisite to the validity of a search warrant is a finding of probable cause. Such probable cause has been defined by our Supreme Court as “knowledge [on the part of the affiant] of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief” that an offense has been or is being committed or evidence will be found at the described location. Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A. 2d 276 (1969); Brinegar v. United States, 338 U.S. 160 (1949). Absent any surveillance or other corroborating evidence, I must agree with the lower court that probable cause did not exist for the issuance of a search warrant addressed to “ ‘Sparky’, an unknown white female” for the premises at 6912 Hegerman Street.

I would affirm the order of the court below in granting defendants’ motion to suppress.

The probable cause section of the warrant reads as follows: “On 10-24-72, at 1:22 p.m. armed with SS Warrant #143392, signed by J. Conroy, I went to the location of 3570 Belgrade St. and arrested Anna Silver w/f/60. I confiscated tally work in eccess (sic) of $1560.00 and residue of soluble paper on which I observed numbers work and which I had seen the defendant Silver put into a pot of water. During the course of the search I answered the phone numerous times and several individuals after asking for Anne placed numbers and horse bets with me. A female caller who identified he (sic) self as Sparky called and placed 24 straight plays for $107.00 total. After placing the numbers bets Sparky was asked by me if she wanted Anne to call her back and she gave her telephone number as De-2-6851. A check with Bell Telephone Company records indicates that the above number is assigned to Julia DeLuca 6912 Hegerman St. voters (sic) registration verifies that Anthony and Julia DeLuca reside at 6912 Hegerman. For this reason I firmly beleive (sic) I have sufficient reason to request this search warrant.”