dissenting.
The result reached by the majority’s total departure from the requirements of probable cause necessary to obtain a valid search warrant is but another example of the perversion of constitutionally mandated protections which occurs from capriciously invoking the quasi-magical rehabilitative powers of the “totality of the circumstances test” to validate an illegal search warrant. This result-oriented approach to our rules does not bode well for their stability. Our case law makes it abundantly clear that stale evidence may not be used to establish the probable cause necessary for the issuance of a search warrant, but rather the conclusion that probable cause exists must be based on facts which are closely related in time to the date the warrant is issued. “If the issuing officer is presented with evidence of criminal activity at some prior time, this will not support a finding of probable cause as of the date the warrant issues, unless it is also shown that the criminal activity continued up to or about that time”. Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981), and cases cited therein (emphasis in original). The reason for the prohibition against stale evidence is that “... even if the incriminating information is dated, as time passes and it becomes possible for the facts and circumstances to change, a redetermination of probable cause is constitutionally required.” Tolbert, 492 Pa. 580, 424 A.2d at 1344 (emphasis in original). The facts of the instant case are similar to those of Tolbert where the stale evidence, consisting of the information of an informant who at some time in the past observed a drug transaction involving that appellant, was coupled with the fifty-minute surveillance of the appellant’s house by the police the day before executing the search warrant. This surveillance, standing alone, was not sufficient to provide the probable cause necessary for the issuance of a search warrant, nor was it sufficient to revive the past, observations of the informant, and the evidence was suppressed.
Fully aware of the import of the Tolbert rule, I cannot envision the bald assertion of a confidential informant that *274the Appellants here were distributing heroin from their residence, which, if standing alone would be insufficient for a finding of probable cause, as being sufficient to revive the stale evidence obtained by Agent Bordeleau. My reading of the affidavit of probable cause indicates that the latest evidence obtained by Agent Bordeleau from which criminal activity can be inferred was obtained on December 20, 1980, fully five months prior to the application for a search warrant. When applying the Tolbert standard in a determination of probable cause where some of the evidence is stale, and given the facts at hand, I find the observations of Agent Bordeleau not to be sufficiently proximate in time to the date of the warrant to establish probable cause on their own. Nor do I find the information supplied by the confidential informant as providing sufficient evidence that the criminal activity observed by Agent Bordeleau continued up to the time of the issuance of the search warrant — a condition necessary to validate the stale evidence. I would therefore affirm the finding of the Superior Court based on the well-reasoned opinion in Tolbert.