dissenting:
I join in Judge Spaeth’s dissenting opinion, but believe that an additional reason mandates vacating the judgment of sentence and ordering a new trial.
*15Appellants1 challenge the validity of the warrant issued on October 15, 1974, authorizing a search of appellant-Burch’s home in Doylestown Township, Bucks County. The Majority concludes that the face of the warrant states adequate probable cause. See Rule 2003(a), Pa.R.Crim.P., 19 P.S.Appendix; Commonwealth v. Williams, 236 Pa.Super. 184, 345 A.2d 267 (1975). I agree. The warrant recited the following facts: the affiant, a Pennsylvania State Trooper, had purchased a large amount of marijuana on two previous occasions from one Carlos “Guerro”; on October 15, 1974, the trooper met Guerrero and went with him to a pre-arranged meeting with Guerrero’s supplier, appellant-Burch; appellant-Burch and Guerrero left the area in Burch’s automobile and returned 15 minutes later with the contraband. The police subsequently arrested both men. The warrant recited two additional facts: (1) Guerrero had told the affiant that his supplier had recently received a shipment of 200 pounds of marijuana and (2) during the investigation, the police learned that appellant lived in the immediate area of the pre-arranged meeting place.
Appellants contend that the facts relied upon by the magistrate did not amount to probable cause because there was no evidence to prove that the marijuana was stored in Burch’s house. Appellants are correct that the police must not only have probable cause that a person under investigation has committed a crime, but also that the evidence sought is in the place to be searched. Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Kline, 234 Pa.Super.Ct. 12, 335 A.2d 361 (1975). As stated by the Supreme Court in Simmons:
“ . . . [although the information supplied the magistrate ‘. . . must be tested with a commonsense, non-technical, ungrudging, and positive attitude, . . ’, Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966); United States v. Ventresca, 380 U.S. 102, 108-09, *1685 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must be sufficient ‘. . . to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were.’ Spinelli, [v. United States, (1969)], 393 U.S. [410] at 413, 89 S.Ct. [584] at 587, 21 L.Ed.2d 637 (emphasis added). See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).” 450 Pa. at 629, 301 A.2d at 822.
However, I agree with the Majority that the warrant was sufficient on its face. Guerrero told the affiant that his supplier had recently received 200 pounds of marijuana. More importantly, the affiant stated that Burch lived nearby and that Burch and Guerrero had driven away to acquire the marijuana that Guerrero was to deliver to the affiant. The conclusion that the two men picked up the contraband at Burch’s home was sufficiently strong to support a finding by the magistrate that Burch was storing the marijuana at his home.
Losing that argument, appellants contend that the information in the warrant was erroneous as proven by police testimony during trial, and that the lower court should have reconsidered the original denial of appellants’ suppression motion. I agree. That contention is supported by the following facts elicited at trial from State Trooper Kaunert who was in a “back-up” vehicle during the drug transaction and who tailed appellant’s vehicle during the entire episode:
“[By the District Attorney]:
“Q. What happened during the course of the surveillance from across the street in the car wash?
“A. The Monte Carlo parked in the car wash area, was there a short time, when the station wagon arrived at the scene. At this time the gentleman that was operating the Monte Carlo left the Monte Carlo, and got into the station wagon.
“Q. What happened after that?
“A. The station wagon and the gentleman that was in it that drove the Monte Carlo left the car wash and proceed*17ed north on 202 back toward Doylestown. Approximately a mile down the road they made a left off 202, went back another three-quarters of a mile, I would say, where there is a housing development, which is in like the form of a “U” or horseshoe.
“They drove around that housing development off to the left, and came back onto the street, which came off 202. They proceeded back toward 202.
“At this time the vehicle I was in dropped back a little bit, and we sort of lost sight of them for a moment. The next we saw them they were back on 202 proceeding south and heading back toward the car wash. They subsequently did turn into the car wash, and we were over near the shopping center.
“Q. Now, at the beginning of that following up of the side road, you mentioned over 202, did you substitute for another vehicle, which had also been attempting to follow this one?
“A. It was attempting to follow the Chevy?
“Q. Right.
“A. Yes, sir.
“Q. And how did you coordinate pursuit or surveillance? “A. By radio, hand controlled. It was not a radio operable in the vehicle, a hand controlled radio.
“Q. What happened after the station wagon returned to the car wash?
“A. It returned to the car wash and went to the rear of the car wash. No longer observed it. At that time we just set there. We didn’t really see what was going on.”
After that information came out during the trial, appellant moved to reopen the suppression hearing. The lower court refused even to hear the motion because it believed that it could not reopen the hearing once the pre-trial motions judge had ruled on the claim. While that is generally the rule, Rule 323, Pa.R.Crim.P., 19 P.S.Appendix, contemplates an exception when a defendant discovers additional evidence not previously available: “(j) If the court determines that the evidence is admissible, such determination shall be final, *18conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable, . . . ” (Emphasis added). See Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1970); Commonwealth v. Jones, 229 Pa.Super.Ct. 224, 323 A.2d 879 (1974). In fact, a defendant risks waiving the issue if upon the discovery of the new evidence, he does not move to reopen the suppression hearing. Commonwealth v. McIntyre, 451 Pa. 42, 301 A.2d 832 (1973).
The law is settled that if the Commonwealth’s evidence contradicts a warrant otherwise sufficient on its face, the court must suppress any evidence seized pursuant to the warrant:
“In the instant case, the information supplied the magistrate in the affidavit, when considered in its entirety, was unquestionably sufficient to warrant a reasonable man in the conclusion that probable cause existed to issue the search warrant. But, this information was untrue and misleading in one very important respect. Moreover, the testimony at trial supports no other conclusion but that the police who supplied the information knew it was not in accord with the then existing facts. Under such circumstances, the warrant was invalid and the use of evidence resulting from the search based thereon was constitutionally proscribed. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth ex rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230 (1965). To rule otherwise would permit the police in every case to exaggerate or to expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.” Commonwealth v. D’Angelo, 437 Pa. 331, 337-38, 263 A.2d 441, 444 (1970).
The Majority concludes that “[e]ven though Burch did not return home with Guerro [sic] to obtain marijuana which was to be sold to the officer, it is logical that he would have kept a large shipment of marijuana at his home.” At 13. That conclusion, however, was logical only because one could *19infer from the facts recited in the warrant that appellant-Burch had gone to his home during the 15 minute period when the affiant did not observe him — as the Majority states, “Burch lived a short distance from the car wash to which Guerro [sic] had originally driven the officer to pick up the drugs, and it was reasonable to conclude that the shipment of the marijuana was at his home.” At 13. Once Trooper Kaunert testified at trial that Burch did not return home, there was no evidence supporting an inference that the marijuana was in his home. Absent probable cause that the contraband was where the affiant claimed it to be, the search warrant was invalid and the evidence should have been suppressed. Commonwealth v. Kline, supra.
Therefore, I would vacate the judgment of sentence and order a new trial.
CERCONE and SPAETH, JJ., join in this dissenting opinion.. Although appellant-Riberdy was not involved in any of the events described in this opinion, she was present when the challenged warrant was executed and was arrested as a result of contraband found pursuant to the warrant.