Commonwealth v. Devine

Dissenting Opinion by

Van der Voort, J.:

These are direct appeals from convictions before a Judge and a jury of conspiracy as to unlawful possession of marijuana with intent to deliver; conspiracy as to unlawful possession of marijuana; of two charges of unlawful possession of marijuana; one being of thirty grams or less, the other being of more than thirty grams. The appellants are asking us to upset these convictions for three reasons, first because they claim that the affidavit upon which the Magistrate issued a search warrant *107did not show “probable cause” for the search, second because the evidence of possession of the drugs was insufficient and, third because the cross examination of one character witness was “prejudicial”.

The appellants, in September of 1972, had rented a ten-room farmhouse on South Darby Road in Hickory Township, Mercer County. On January 19, 1973, officers of the Farrell Police Department and a narcotics official secured a search warrant for these farmhouse premises. At about 5:30 P.M. on that day, the officers went to the main entrance of the house, knocked on the door and saw someone pull back a curtain or blind on the inside. The officers announced that they were police and had a search warrant and ordered that person to open the door. The curtain dropped back and the officers heard someone moving inside away from the door. The officer in charge waited for a period estimated to be between thirty seconds and a minute for someone to open the door. When no one responded by opening the door, forcible entry was made.

A search of the premises disclosed a total of eighteen pounds of marijuana and a small scale suitable for weighing small amounts of the drug for delivery by dealers.1 There was also found a bag of baggies suitable for bagging marijuana for distribution.

*108Considering the first reason alleged by the appellants to entitle them to be let off from their convictions, when the officers applied for a search warrant they made an affidavit to the Magistrate in support of its issuance and stated to him as follows:

“On 1/18/72, Capt. Fred Madasz of the Farrell P.D. received information from a reliable confidential informant who has proven reliable on at least four prior occasions when said informant furnished him with information that was verified and which pertained to narcotic law violations and which assisted in the investigation of both narcotic and burglary cases by Capt. Madasz. The information received from the informant was that Dominic Giglio and James Devine and numerous other unknown persons were using a residence on S. Darby Rd. in Hickory Twp. for cutting, bagging and processing marijuana, L.S.D., Barbiturates and amphetamines. The house was described as being a big farm-type house with two outbuildings, and being the first house on the right hand side going south off Rt. 62. The two named persons have been known to members of the Farrell Narcotic and Vice Squad as users of and distributors of dangerous and narcotic drugs for the last two years. Informant also stated that the named persons were using a blue car with Pa. registration plates and that they were cutting a large amount of marijuana for distribution to Edinboro College on Friday, Jan. 19, 1972. A check of the Farrell Narcotic Squad Records verified that a 1969 Pontiac G.P., dark blue, Pa. Registration #866-735 was registered to James P. Devine, 241 Lunn Blvd., Farrell, Pa. On 1/19/72, at approximately 3:00 P.M., Sgt. Kenneth Green of the Farrell Narcotic Squad drove down S. Darby and verified a dwelling and outbuildings that matched the description given by informant located as the first house on S. Darby Rd., on the west side, and at that *109time saw the vehicle described as owned by James P. Devine parked behind the 1% story white frame outbuilding. Affiant also believes Sgt. Green to be a reliable person who has been a Farrell Police officer for over four years.”

The appellants claim that the rulings in the cases of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) make this affidavit insufficient. I find no such effect in Aguilar and Spinelli. Those two cases established the principles that police officers seeking a search warrant must give the Magistrate sufficient facts from which he can make an independent judgment as to the validity of the informant’s conclusion and as to his reliability (or credibility). The underlying circumstances given to the Magistrate by the officers were as follows: That Devine and Giglio were using a residence on South Darby Road in Hickory Township where they were cutting, bagging and processing marijuana, L.S.D. and barbiturates and amphetamines; the type of house (a big farmhouse with two outbuildings and its location; the two suspects were using a blue car with Pennsylvania license plates and they were cutting a large amount of marijuana for distribution to Edinboro College on Friday, January 19,1972. The officers informed the Magistrate in the affidavit that the Farrell Narcotics Squad had determined that Devine owned a 1969 Pontiac G.P., dark blue with Pennsylvania registration plates No. 866-735 and that Devine’s registered address was 241 Lunn Boulevard in Farrell, Pennsylvania. The officers further checked and found that the dwelling and outbuilding matched the description given by the informant and that it was located where the informant said it was. The officers checked and located Devine’s blue Pontiac parked behind a 1^2 story white outbuilding on the farmhouse premises. Certainly from the facts given by the informant which were checked and found to be precisely *110accurate by the investigating officers, the Magistrate could reasonably infer that the informant had gained his information in a reliable way.

The officers further told the Magistrate that their informant was a reliable person and had proven reliable on at least four prior occasions on which he had furnished one of the officers with information which was subsequently verified which related to narcotics law violations and which assisted in the investigation of both narcotic and burglary cases. Certainly from this statement by the officer making the affidavit the Magistrate could reasonably infer that the informant was a credible or reliable person. Here we have a situation where what the informant told the police officers was exactly right; what the officers told the Magistrate was exactly right and the decision made by the Magistrate was exactly right.

The majority would have us say that all this must be thrown overboard, that although all parties were in fact correct and just in their words and actions that our law is such that all their efforts expended in uncovering the criminal conduct in this case shall go for naught. When are we in the judiciary going to stop burying our heads in the sand ?

It is true that upon reading the book, The Gulag Archipelago by Aleksandr I. Solzhenitsyn, one learns of the horrors of unbridled searches. It is also true that in reaction to the fear of unbridled searches we have gone overboard in retarding the Magistrate and paralyzing law enforcement with unbridled restrictions upon searches. All kinds of criminal activity and harmful forces operate under the eyes, ears and noses of police officers and the law makes them powerless to intervene. This is so to such an extent that law enforcement is gradually losing control over criminal activity.

Turning to the second claim of the appellants that the evidence of possession of the drug was insufficient to sustain their conviction, there is little merit to this conten*111tion. Devine and Giglio were co-lessees of the farmhouse in question. They had possession and control of both the inside and outside of the premises with marijuana literally strewn all over the house, together with the scales, bags, baggies and tea leaves. There was ample evidence to sustain the conclusion by the jury that both Devine and Giglio had knowing and intentional possession of the drugs together with the control of them.

The third issue raised by the appellants arises out of the cross examination of a character witness, one Reverend Stewart for appellant-defendant Devine as to his good reputation in the community for truth and veracity. The attorney for the Commonwealth asked Reverend Stewart if he had seen the quantity of marijuana being carried into the courtroom before the commencement of the court session and if it was not true that he had remarked “what a waste so many people could be enjoying that.” He admitted that he had so remarked. On re-direct examination he said, “We had been joking the whole day, they (the officers) are aware of that”. The jury was entitled to consider this remark of Reverend Stewart to determine whether or not he was biased in favor of the use of marijuana. A witness may be impeached on matters not brought out in direct examination. Commonwealth v. Cheatham, 429 Pa. 198, 202-203, 239 A.2d 293 (1968). If Reverend Stewart favored the use of marijuana he can very well be biased in favor of the appellant Devine.

I would not upset the conviction of the appellants, but would affirm the judgment of sentence.

Watkins, P.J., and Price, J., join in this dissenting opinion.

. The house was sparsely furnished. The details of the search disclosed in various places throughout the house six kilos of marijuana in a large garbage bag together with two one pound bags of marijuana placed on the floor next to a suitcase, a glass bowl with particles in it, an electric burner suitable for smoking marijuana and a suitcase with marijuana particles in it. On a coffee table were found loose marijuana, roach holders, and marijuana seeds. On the couch by the coffee table were two bags of marijuana under cushions at each end. On a T.V. set was found a large paper bag containing a plastic bag which in turn held bags of marijuana seeds, stems and marijuana. Next to the scale on the kitchen table was a brown paper bag enclosing a white glassine bag with tea inside. (Tea is commonly used as a material for cutting marijuana.)