Petition — Gelfont v. Pennsylvania

Supreme Court, U.

FILED

SEP 4 1979

| _MIGHABL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1979

CARL GELFONT,

Petitioner,

against

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE COMMONWEALTH

OF PENNSYLVANIA AT ALLOCATUR

DOCKET NO. 4241.

MICHAEL J. MORRIS, JR.

FRANK P. MURPHY

31 East Marshall Street

Norristown, Pennsylvania 19401

(215) 275-0320

Attorneys for Petitioner

— ——

BATAVIA TIMES, APPELLATE COURT PRINTERS

EDWARD W. SHANNON >

EASTERN PENNSYLVANIA REPRESENTATIVE

THE PLAZA, SUITE 23F, PHILADELPHIA, PA. 19103

PHONE: (215) 568-7783

re

Page

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Ib na ne pen bovis bad be aw ome ves WUC Odsews l

Ee er is cee awa hcp ue bcd tes cassca 2

COMOREAINS FROGS 858 8 Re RG, ewrtvcnes reared 0 oi 2

Constitutional Provisions Involved .................. 3

ee ee ie eh ee eee 3

Reasons for the Allowance of the Writ .............. 5

I. A search warrant requirement of the Fourth

Amendment of the United States Constitution will

be emasculated if this decision is allowed to stand 5

II. Pennsylvania Courts have dangerously ex-

panded the ability of the police to circumvent the

second prong of the Aguilar-Spinelli test by its

SEES cos ca arikG Ok Oe Wad. cence cacn noes e 7

CS 2 Recah ey 5k 0e bw ke hi0.d Seana yd Ses oe tk 8

Appendix:

Opinion by the Honorable Richard S. Lowe, Trial

Judge of the Court of Common Pleas of Mont-

i es ia we wn'e 9

-Opinion of the Superior Court of Pennsylvania by the

Honorable Gwilyn A. Price, Jr. dated March 2,

ve ER ctor es PES ER FA rs a 15

Dissenting Opinion in the Superior Court of Penn-

sylvania by the Honorable Edmund B. Spaeth, Jr.

ee ee a ee a i an 23

Judgment of the Superior Court of Pennsylvania dated

ME cogs bs coe ib as ca tecacraes yan 31

Judgment of the Supreme Court of Pennsylvania

EE ME ey iia vecaucvsbesssveccescss ie

Page

CITATIONS.

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed.

Be CRUE, 5 6 Ro tui oeas eee ev cee wees coe 5,6

Commonwealth v. Gelfont, 399 A.2d 414 (Pa. Super.

I Bic pc adi ss ci he ete 6c ve ce mae ce Buidee <9

Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.

ee. Se GS TL EMUED vu oh nthdle's cictuean s Lancehy Soo kh Ria 5,6

United States v. Character, 568 F.2d 442 (Sth Cir., 1978) 6

United States v. Dunloy, 584 F.2d 6 (2d Cir., 1978)... 7

United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.

Ed. 2d 723 (1971) ...... DE sk ne acy SORDNC eslb a Wace 7

United States v. Midtaune, 589 F.2d 370 (7th Cir., 1979) 7

United States v. Muckenthaler, 584 F.2d 240 (8th Cir.,

SARE RRR” I See aa ay Ce tpe rareens AEM oe eyes 7

United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45 L.

BG BU Tee CU GTIE ecco sine Sob binnie vadceac Cubes gee 6

United States v. Sclamo, 578 F.2d 888 (ist Cir., 1978) . 8

United States v. Scott, 545 F.2d 38 (8th Cir., 1976) cert.

denied, 429 U.S. 1066, 97S. Ct. 796, 50 L. Ed. 2d 784

Supreme Court of the United States

October Term, 1979

CARL GELFONT,

Petitioner,

against

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE COMMONWEALTH

OF PENNSYLVANIA

Petitioner respectfully prays that a Writ of Certiorari issue

to review the final Order of the Supreme Court of the Com-

monwealth of Pennsylvania entered herein on June 4, 1979 af-

firming the opinion of the Superior Court of Pennsylvania,

dated March 2, 1979 reversing the Suppression of Evidence by

the Trial Court and remanding the case for Trial.

Opinions Below

The Opinion of the Trial Court, the Court of Common

Pleas of Montgomery County in this case is reported at 104

Montg. Co. L. R. 368 (1978).

The Opinion of the Superior Court of Pennsylvania and the

dissent is reported at 399 A. 2nd 414 (Pa. Super. 1979).

The Order of the Supreme Court of Pennsylvania affirming

the Superior Court is without an accompanying opinion and

as yet unreported (A copy of this Order is attached in the Ap-

pendix).

2

Jurisdiction

The final Order of the Supreme Court of Pennsylvania was

made and entered on June 4, 1979, and is appended hereto

at P. 32. The Order and Judgment of the Supreme

Court ruled adversely on a Federal Constitutional question

and claim of right of the Petitioner. The Jurisdiction of this

Court is invoked under 28 U.S.C. Section 1257 (3).

Questions Presented

I. Did the State Appellate Court err in not affirming the

Suppression of Marijuana Evidence as required by the Fourth

Amendment by its finding that the first prong of the Aguilar-

Spinelli test was satisfied by a search warrant when the ap-

pellate court took judicial notice of the unproved fact that the

use of marijuana is so universal that no underlying facts and

circumstances need be alleged in the affidavit to the search

warrant showing how the “good citizen” informant knew that

the marijuana to be seized was in fact marijuana?

Il. Did the Trial Court and the Appellate Court weaken the

protection of the Fourth Amendment by finding that the

second prong of the Aguilar-Spinelli test was satisfied, where

in the application for a search warrant the only information

presented to the issuing authority to establish the reliability of

the informant was that the informant was never convicted of a

crime, that he was a registered voter, that he was gainfully

employed, and that the affiant believes him to be reliable and

not subject to rash judgments, without a further showing of

past information received that has resulted in arrest and or

conviction or other indicia of reliability?

3

Constitutional Provisions Involved

AMENDMENT IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search-

es and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to

be searched, and the persor or things to be seized.”

AMENDMENT XIV SECTION I:

‘All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction equal pro-

tection of the law.”

Statement of the Case

On February 22, 1978, Montgomery County Detective

Timothy Woodward obtained a search warrant from District

Justice Everett P. Arnold for a search of the defendant, Carl

Gelfont’s residence at 3918 Warfield Drive, Huntingdon

Valley, Pennsylvania.

The issuance of said search warrant was based on the al-

legations by Detective Woodward that during the last twenty

four hours he had met with a “confidential and reliable in-

formant” who had advised him that he had been in the

residence located at 3918 Warfield Drive, Huntingdon

Valley, Pennsylvania, where he observed a large quantity of

“suspected marijuana” in the possession of a white male

_whom he knew as Carl.

4

The affidavit then goes on to recite that the affiant, Detec-

tive Woodward: “. . . believes the informant to be reliable

for the following reasons: the informant has never been

arrested or a suspect in a crime. The informant has been gain-

fully employed the majority of his adult life. The informant is

also a registered voter in Montgomery County.”

The only other facts which are pertinent to the questions

presented in this Petition are the averments contained in the

application for the search warrant by Detective Woodward

that he checked the Cole’s Directory, The Pennsylvania

Bureau of Motor Vehicles and Lower Moreland Township

Tax Records to confirm the fact that Carl Gelfont lived at

3918 Warfield Drive, Huntingdon Valley, Pennsylvania.

On May 1, 1978, a timely Omnibus Pre-Trial Motion was

filed requesting that the evidence be suppressed based on an

illegal and invalid search warrant. The Federal Con-

Stitutional issue raised by this issue was heard by the Trial

Court on June 6, 1978. On June 7, 1978 the Honorable

Richard S. Lowe granted the defendant’s Motion to Suppress

the Evidence. An appeal was taken by the Commonwealth to

the Superior Court of the Commonwealth of Pennsylvania on

June 20, 1978. The Superior Court of Pennsylvania reversed

and remanded the case on March 2, 1979. On March 28, 1979

the defendant appealed to the Supreme Court of Penn-

sylvania. On June 4, 1979 the Supreme Court of Pennsylvania

affirmed per curiam, without opinion.

ee

5

REASONS FOR THE ALLOWANCE OF THE WRIT

I. A search warrant requirement of the Fourth Amend-

ment of the United States Constitution will be

emasculated if this decision is allowed to stand.

The consequence of this decision, if left to stand, would

have serious implications for the citizens of the Common-

wealth of Pennsylvania by permitting police officers to enter

and search a person’s home without proper safeguards to

determine the reliability and trustworthiness of the con-

fidential informant. The standard by which search warrants

containing hearsay information from informants are tested

for validity was set forth in 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).

The two prong test set forth in these decisions require that an

affidavit for a search warrant must set forth underlying cir-

cumstances necessary to enable a Magistrate to independently

judge on the validity of the informant’s conclusion and second-

ly that the affiant-officers must support their claim that

their informant was credible and his information reliable, so

that the appropriate value of the report can be assessed. In the

instant case the search warrant that was used to invade the

privacy of the residence of Carl Gelfont initially was in-

validated by the Trial Court based on the Trial Court’s con-

clusion that sufficient facts and underlying circumstances re-

garding the informant’s conclusion in the search warrant that

what he observed was in fact marijuana was absent. The

Superior Court of Pennsylvania reversed the Trial Court on

this ground and took judicial notice of the rather improbable

and “. . . unproved fact that the use of marijuana has

become so universal that it is readily recognizable by law-

abiding citizens” see Commonwealth v. Gelfont, 399 Atlantic

2d 414 (Pa. Super. 414, 416) other than the statement that the

6

informant saw “suspected marijuana” there is nothing con-

tained in the affidavit to the search warrant indicating that

the informant knew what marijuana looked like. The purpose

of the first prong of the Aguilar-Spinelli test is to examine

whether or not there is enough information in the search

warrant to credit the conclusion that the informant made as

reliable. It is submitted, as the dissent. correctly points out in

this case that to assume that the general law abiding public

knows and can distinguish marijuana from other vegetable

material on sight. without a greater showing of familiarity is

error. In accord with this point is United States v. Character,

568 F. 2d 442 (Sth cir.. 1978) where the Court held that an in-

formant’s conclusion that he saw stolen goods contained in

the search warrant was an insufficient conclusion without a

further showing of how the informant knew that the goods

were in fact stolen. Similarly in the instant case the in-

formant’s conclusion that he saw marijuana is unsupported by

any facis or circumstances to show that he as a law abiding

citizen, knows what marijuana looks like.

This particular issue is an important one for the Court to

determine since it is contrary to the general purpose of the

Fourth Amendment to impose limits on the power of police to

prevent arbitrary and oppressive interference with privacy and

personal security of individuals. United States v. Ortiz, 422

U.S. 891. 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975). It is further

submitted that a Writ of Certiorari should be granted since an

important federal question has been raised and the decision

of the Courts of Pennsylvania are not in accord with the

Supreme Court decisions of Aguilar v. Texas. supra and

Spinelli v. United States, supra.

7

II. Pennsylvania Courts have dangerously expanded the

ability of the police to circumvent the second prong of the

Aguilar-Spinelli test by its decision.

It is submitted that the Pennsylvania Courts have ruled on

an issue that has not been directly decided by the Supreme

Court of the United States concerning a federal constitutional

question of the validity of the “good citizen” informant. In

United States v. Harris, 403 U. S. 573, 91 S. Ct. 2075, 29 L. Ed.

2d 723 (1971) Justice Harlan in his dissent mentioned in pass-

ing that a good citizen “. . . may in fact be more reliable

than one who supplies information on a regular basis . . .”

id. U. S. 599 other than that brief statement in the dissent the

Supreme Court has not yet ruled upon the issue of whether or

not a “good citizen” can be credible on its face without a fur-

ther showing of underlying facts and circumstances.

None of the standard indicia of credibility exists in this

case. The suspect’s reputation was not in accord with the in-

formant’s tip as admitted by the Commonwealth in its Answer

to the Omnibus Pre-Trial Motion. See United States v. Harris.

403 U. S. 573, 91 S. Ct. 2075, 29 L. Ed. 723 (1971). The in-

formant was not an accomplice. United States v. Dunloy, 584

F. 2d 6 (2d cir. of 1978). The informant admittedly did not

give prior reliable information. United States'v. Muckenthaler,

584 F. 2d 240 (8th cir. 1978); United States v. Scott, 545 F. 2d

38 (8th cir. 1976) cert denied, 429 U. S. 1066, 97S. Ct. 796, 50

L. Ed. 2d 784 (1977).

Further, the informant’s statement were not against his

penal interest to add credibility to those statements. United

States v. Midtaune, 589 F.2d 370 (7th Cir. 1979).

There is also an absence of sufficient underlying facts and

circumstances to show reliability. The mere fact that the in-

dividual was employed, that he had not been convicted of any

crimes, that he was a registered voter and that the officer did

not believe that the person was subject to rash judgments is

patently insufficient to establish his hearsay statement as

credible. Further, the affidavit to the search warrant is

wholly deficient in its description of the criminal conduct that

was occurring and the details concerning said conduct. There

is nothing in the search warrant to show or to convince a

Magistrate that what the informant was stating was more than

a mere rumor. The only description in the warrant is of the

defendant and of his residence and the fact that in his

residence was some “suspected marijuana”. This is contrary

to the decision of United States v. Sclamo, 578 F. 2d 888 (Ist

cir. 1978).

Conclusion

The Writ of Certiorari to the Supreme Court of Penn-

sylvania should be granted.

Respectfully submitted,

MICHAEL J. MORRIS, JR..

FRANK P. MURPHY,

Attorneys for Petitioner.

9

APPENDIX

Opinion by the Honorable Richard S. Lowe, Trial

Judge of the Court of Common Pleas of Montgomery

County.

IN THE COURT OF COMMON PLEAS OF

MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA,

vs.

CARL GELFONT.

No. 712-78

LOWE, P. J., July 24, 1978

The Commonweaith appeals an Order suppressing evidence

obtained, as found by the trial court, by a constitutionally in-

valid search and seizure. The crimes charged are possession

of a Schedule I controlled substance (marijuana) and

possession with intent to deliver same. The suppressed

evidence is critical to the Commonwealth’s case, and it can

appeal the suppression. Commonwealth vs. Bosurgi, 411 Pa. 56

(1963), Commonwealth vs. Reisinger, .... Pa. Superior Ct.

..++, 380 A.2d 1250 (1977).

10

Appendix—Opinion of the Court of Common Pleas

of Montgomery County.

On February 22. 1978 Montgomery County Detective

Timothy Woodward sought a search warrant for the residence

of defendant Carl Gelfont. The complaint for the warrant

read in pertinent part:

During the last 24 hours affiant interviewed a con-

fidential and reliable informant. The information

received from the confidential and reliable informant

was that during the last 48 hours. while he (the in-

formant) was present inside the residence located at 3918

Warfield Drive. Huntingdon Valley. he (the informant)

observed a large quantity of suspected marijuana. The

marijuana was in the possession of a white male known to

the informant as Carl . . . Affiant checked the “Coles

Directorey™ [sic] and learned thru that directory that the

residence at 3918 Warfield Drive. Huntington Valley is

owned by a Carl Gelfont and learned that a Pennsylvania

Operators License is issued to a Carl Gelfont, d.o.b.

2/9/42. 3918 Warfield Drive. Huntington Valley. Affiant

believes the informant to be reliable for the following

reasons: The informant has never been arrested or a

suspect in a crime. The informant has been gainfully em-

ployed for the majority of his adult life. The informant is

also a registered voter in Montgomery County . . .

After a determination of probable cause. District Justice

Everett P. Arnold issued the warrant.

Detective Woodward proceeded to the defendant's

residence, executed the warrant. seized contraband. and

arrested the defendant for violations of the Controlled Sub-

stance. Drug. Device and Cosmetic Act. Act of April 14,

1972. P. L. 233. 35 P. S. 780-113 (a) (16). (30).

Appendix—Opinion of the Court of Common Pleas

of Montgomery County.

The sole issue on appeal is whether or not sufficient

evidence was presented the issuing authority to establish

probable cause justifying issuance of the search warrant un-

der the two-pronged test established in Aguilar vs. Texas, 378

U. S. 108 (1964), and explicated in Spinelli vs. United States,

393 U. S. 410 (1969).

The first requirement is an explanation of the ‘underlying

circumstances’ from which the informant received the in-

formation and reached the conclusion that fruits of a

crime would be located in the place to be searched.

Secondly, there must be set forth in the affidavit a

reasonable basis for the affiant’s belief that his informant

is credible and his information reliable.

Commonwealth vs. Reisinger, supra, 380 A.2d 1250, 1252. See

also Commonwealth vs. Davis, 466 Pa. 102 (1976), Com-

monwealth vs. Forster, .... Pa. Superior Ct. ...., 385 A.2d

416 (1978).

Each prong of the test must be analyzed separately. The

first requirement is an explanation of the underlying cir-

cumstances which caused the informant to believe that fruits

of a crime would be found. This warrant merely states that

the informant “observed a large quantity of suspected

marijuana.” [emphasis added]. The affidavit stated that the

suspected marijuana was in the possession of a certain in-

dividual named Carl at a designated location. This portion of

the affidavit lacks the requisite underlying “facts or cir-

cumstances” which gave rise to the informant’s conclusions.

There is nothing in the affidavit to indicate that the informant

had any expertise in marijuana or that he could distinguish

marijuana from other vegetable substances of similar ap-

pearance and characteristics. Unquestionably, before a lay in-

formant’s opinion can support the issuance of a search

warrant, it must be demonstrated he has had some prior

12

Appendix—Opinion of the Court of Common Pleas

of Montgomery County.

elementary experience with the subject matter of the opinion.

The Supreme Court of the United States forbids issuance of a

warrant on mere affirmance or belief. In Nathanson vs. United

States. 290 U. §. 41 (1933), a warrant was issued upon the

sworn allegation that the affiant “has cause to suspect and

does believe” that certain merchandise was in a specified

location. The Court stated:

Under the Fourth Amendment an officer may not

properly issue a warrant to search a private dwelling

unless he can find probable cause therefor from facts or

circumstances presented to him under oath or af-

firmation. Mere affirmance of belief or suspicion is not

enough.

Id. 47. See also United States vs. Harris, 403 U. §. 573 (1971).

The informant merely suspected that marijuana was present at

defendant's residence. Mere affirmance is insufficient. There

is no allegation that the informant, a reputable, law-abiding

citizen, had any knowledge of marijuana. It cannot be

assumed that marijuana is such a common, every day sub-

stance that it is readily and universally recognizable. Expert

witnesses are often called upon to identify marijuana. United

States vs. Moore, 446 F.2d 448 (3rd Cir. 1971), cert. denied, 406

U. S. 909 (1971), The meager, unconfirmed, and un-

substantiated allegations identifying the suspected contraband

as marijuana are insufficient to satisfy the first prong essen-

tial to establishing probable cause.

The leading case analyzing the second requirement of the

Aguilar test is United States vs. Harris, supra. The courts of

Pennsylvania have reviewed the requisite standards in deter-

mining whether or not there is a substantial basis for crediting

hearsay: beak

,)), Did the informant give prior reliable information?

13

Appendix—Opinion of the Court of Common Pleas

of Montgomery County.

2) Was the informant’s story corroborated by any

other source?

3) Were the informant’s statements a declaration

against interest?

4) Does the defendant’s reputation support the in-

formant’s tip? _

Commonwealth vs, Ambers, 225 Pa. Superior Ct. 381 (1973);

Commonwealth vs. Reisinger, supra. None of the aforemen-

tioned factors is present in the instant case. However, these

factors were not “intended by the Harris court to be the only

_ factors which could conceivably provide a basis for crediting

the hearsay.' To apply this ‘checklist’ in a mechanical manner

would deprive a reviewing court of the opportunity to use its

‘common sense’ as urged the Court in United States vs. Ven-

tresca (380 U. S. 102 (1965)} .. .” Commonwealth vs.

Reisinger, supra, 380 A.2d 1250, 1253.

This Court concludes that there is sufficient evidence to

determine that the second requirement of Aguilar was met.

The informant was reliable because he had never been arrest-

ed or a suspect in a crime, is gainfully employed, and is a

registered elector in Montgomery County.

' Justice Harlan's dissent in Harris vs. United States, 403 U. S. $73 (1971), is

instructive on the issue of credibility. “I think there is much truth in the

government's supporting assertion that the ordinary citizen who has never

before reported a crime to the police may, in fact, be more reliable than

one who supplies information on a regular basis . . ." /d., 599. Justice

Harlan continued, “without violating the confidence of his source, the

agent surely could describe for the magistrate such things as the informer's

general background, employment, personal attributes that enable him to

observe and relate accurately, position in the community, reputation with

others, personal connection with the suspect, any circumstances which

suggest the probable absence of any motivation to falsify, the apparent

motivation for supplying the information, the presence or absence of a

criminal record or association with known criminals, and the like.” /d.,

600. °

14

Appendix—Opinion of the Court of Common Pleas

of Montgomery County.

Nevertheless. the complaint at issue provided an in-

sufficient basis for an independent determination by a neutral

magistrate that probable cause existed. Thus the evidence was

properly suppressed. To sustain this warrant would be to

dilute the “important safeguards that assure that the judgment

of a disinterested judicial officer will interpose itself between

the police and the citizenry”. Spinelli vs, United States, 393 U.

S. 410, 419 (1969).

BY THE COURT:

RICHARD S. LOWE.

PJ.

15

Opinion of the Superior Court of Pennsylvania by

the Honorable Gwilyn A. Price, Jr.

dated March 2, 1979

IN THE

SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, ,

Appellant,

Vv.

CARL GELFONT.

No. 1807 October Term, 1978

Appeal from the Order of the Court of

Common Pleas of Montgomery County,

Criminal Division at No. 712-78.

BEFORE: PRICE, SPAETH and WATKINS, JJ.

FILED MAR 2 1979

OPINION BY PRICE, J.

This is an appeal from an order of the court below granting

appellee’s motion to suppress the physical evidence seized

pursuant to a search warrant executed at the appellee’s

residence at an address within Montgomery County. The

physical evidence involved is approximately fifteen (15)

pounds of marijuana, and the appellant certifies and the court

below found that the physical evidence is critical to the Com-

monwealth’s presentation of the case. The Commonwealth is

therefore clearly entitled to bring this appeal. Commonwealth

v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

16

Appendix—Opinion of the Superior Court of Pennsylvania.

The sole issue before us is whether or not the affidavit sup-

porting the issuance of the search warrant provided a suf-

ficient basis for the magistrate to have had probable cause

established to justify issuance of the search warrant. We find

by applying the test of Aguilar v. Texas, 378 U. S. 108 (1964),

and subsequent Pennsylvania authorities on the point that the

court below erred in the suppression, that the order should be

reversed and the case remanded for trial.

President Judge Lowe, of the Court of Common Pleas of

Montgomery County, the court below, issued the order and

able opinion in support of his order. The facts set forth in

that opinion are as follows:

“On February 22, 1978 Montgomery County Detective

Timothy Woodward sought a search warrant for the

residence of defendant Carl Gelfont. The complaint for

the warrant read in pertinent part:

During the last 24 hours affiant interviewed a con-

fidential and reliable informant. The information

received from the confidential and reliable informant

was that during the last 48 hours, while he (the in-

formant) was present inside the residence located at

3918 Warfield Drive, Huntingdon Valley, he (the in-

formant) observed a large quantity of suspected

marijuana. The marijuana was in the possession of a

white male known to the informant as Carl . . . Af-

fiant checked the ‘Coles Directorey |sic]’ and learned

thru that directory that the residence at 3918 Warfield

Drive, Huntington [sic] Valley is owned by a Carl

Gelfont and learned that a Pennsylvania Operators

License is issued to a Carl Gelfont, d. 0. b. 2/9/42, 3918

Warfield Drive, Huntington |sic] Valley. Affiant

believes the informant to be reliable for the following

reasons: The informant has never been arrested or a

17

Appendix—Opinion of the Superior Court of Pennsylvania.

suspect in a crime. The informant has been gainfully

employed for the majority of his adult life. The in-

formant is also a registered voter in Montgomery

County. . .

After a determination of probable cause, District Justice

Everett P. Arnold issued the warrant.

Detective Woodward proceeded to the defendant's

residence, executed the warrant, seized contraband, and

arrested the defendant for violations of the Controlled

Substance, Drug, Device and Cosmetic Act. Act of April

14, 1972, P. L. 233, 35 P. S. 780-113 (a) (16), (30).”

The key words to the decision of the court below were the

words “suspected marijuana” in the sentence of the affidavit

. .while he (the informant) was present inside the

residence located at 3918 Warfield Drive, Huntingdon

Valley, he (the informant) observed a large quantity of

suspected marijuana,” (emphasis supplied).

Speaking to this point and discussing Aguilar v. Texas,

supra, the opinion of the court below explains:

“Each prong of the test must be analyzed separately.

The first requirement is an explanation of the underlying

circumstances which caused the informant to believe that

fruits of a crime would be found. This warrant merely

states that the informant ‘observed a large quantity of

suspected marijuana.’ (emphasis added). The affidavit

stated that the suspected marijuana was in the possession

of a certain individual named Carl at a designated

location, This portion of the affidavit lacks the requisite

underlying ‘facts or circumstances’ which gave rise to the

informant’s conclusions. There is nothing in the affidavit

to indicate that the informant had any expertise in

marijuana or that he could distinguish marijuana from

other vegetable substances of similar appearance and

Appendix—Opinion of the Superior Court of Pennsylvania.

characteristics. Unquestionably, before a lay informant’s

Opinion can support the issuance of a search warrant, it

must be demonstrated he has had sonie prior elementary

experience with the subject matter of the opinion. The

Supreme Court of the United States forbids issuance of a

warrant on m€re affirmance or belief. In Nathanson vy.

United States, 290 U.S. 41 (1933), a warrant was issued

upon the sworn allegation that the affiant ‘has cause to

suspect and does believe’ that certain merchandise was in

a specified location. The Court stated:

Under the Fourth Amendment an officer may not

properly issue a warrant to search a private dwelling

unless he can find probable cause therefor from facts

or circumstances presented to him under oath or af-

firmation. Mere affirmance of belief or suspicion is

not enough.

Id. 47. See also United States vy. Harris, 403 U.S. 573

(1971). The informant merely suspected that marijuana

was present at defendant's residence. Mere affirmance is

insufficient. There is no allegation that the informant, a

reputable, law-abiding citizen, had any knowledge of

marijuana. It cannot be assumed that marijuana is such a

common, every day substance that it is readily and

universally recognizable. Expert witnesses are often

called upon to identify marijuana. United States vs.

Moore, 446 F.2d 448 (3rd Cir. 1971), cert. denied, 406 U.

S. 909 (1971). The meager, unconfirmed, and un-

substantiated allegations identifying the suspected con-

traband as marijuana are insufficient to satisfy the first

prong essential to establishing probable cause.”

19

Appendix—Opinion of the Superior Court of Pennsylvania.

We believe this analysis to be in error. As Justice Frank-

furter pointed out in Jones v. United States, 362 U.S. 257

(1960), in examining an affidavit the magistrate issuing the

warrant

“need not have been convinced of the presence of nar-

cotics [at the place to be searched. Rather there need

only be a] substantial basis for him to conclude that nar-

cotics were probably present.” /d. at 271 (emphasis sup-

plied).

Additional valuable instruction is gained on the standard

of review in United States v. Ventresca, 380 U.S. 102 (1965),

where the Court stated:

“|W]hen a magistrate has found probable cause, the

courts should not invalidate the warrant by interpreting

the affidavit in a hypertechnical. rather than a common-

sense, manner. Although in a particular case it may not

be easy to determine when an affidavit demonstrates the

existence of probable cause. the resolution of doubtful

or marginal cases in this area should be largely ceter-

mined by the preference to be accorded to warrants.” /d.

at 109. (citation omitted).

Indeed. this court has often used the above language in

upholding such warrants. most recently in Commonwealth v.

Foster, .... Pa. Superior Ct. ..... 385 A.2d 416 (1978)

(Allocatur denied June 21, 1978). In Foster, the drug involved

was identified as T. H. C. only through the use of the letters

T. H. C. in a conversation overheard by the informant. The

substance was never seen and therefore was further removed

from specific identification than the physical evidence here

involved. ?

20

Appendix—Opinion of the Superior Court of Pennsylvania.

In the instant case, the court below has applied too strict a

standard. The information that a confidential reliable in-

formant provides law enforcement authorities in order for

them to procure a search warrant has never been held to be a

standard of proof beyond a reasonable doubt. This court has

repeatedly held that the correct test is by evidence less than

would justify conviction. The use of the word “suspected”

must, of necessity, at least be implied in all search warrants.

Even the most experienced of law enforcement officials can

._ only truly apply a drug name to a substance after standard

‘chemicai tests are performed, most often requiring the use of

highly trained and specialized experts to identify nily the

drug. Indeed, the court below recognized that distinction in

its opinion.

Further, in Commonwealth v. Banahasky, 250 Pa. Superior

Ct. 495, 378 A.2d 1257 (1977), Judge Spaeth, speaking for the

majority, accepted the words “suspected marijuana” as

establishing the fact that some drugs were found on an in-

dividual’s person.' That opinion, while accepting “suspected

marijuana,” went on to reverse on other grounds, a con-

clusion which led the writer of this opinion to dissent. But on

the point here under discussion there was no division.

Appellee also argues the suppression order should be af-

firmed because the court below erred in its interpretation of

the second prong of the Aguilar, supra, requirement. On that

point, the court below’s opinion is as follows:

“The leading case analyzing the second requirement of

the Aguilar test is United States vs. Harris, supra. The

courts of Pennsylvania have reviewed the requisite stan-

' The dissent now justifies that reliance because of the fact that the in-

formant was a chief of police. This is an example of fallacy known as petitio

principii. It is not a fact which establishes the ability to translate the words

“suspected marijuana” into “truly marijuana.”

21

Appendix—Opinion of the Superior Court of Pennsylvania.

dards in determining whether or not there is a substantial

basis for crediting hearsay:

i) Did the informant give prior reliable information?

2) Was the informant’s story corroborated by any

other source?

3) Were the informant’s statements a declaration

against interest?

4) Does the defendant’s reputation support the in-

formant’s tip?

Commonwealth vs. Ambers, 225 Pa. Superior Ct. 381

(1973), Commonwealth vs. Reisinger, supra. None of the

aforementioned factors is present in the instant case.

However, these factors were not ‘intended by the Harris

court to be the only factors which could conceivably

provide a basis for crediting the hearsay.' To apply this

“checklist” in a mechanical manner would deprive a

reviewing court of the opportunity to use its “common

sense’’ as urged the Court in United States vs. Ventresca

{380 U.S. 102 (1965)] . . .’ Commonwealth v. Reisinger,

supra, 380 A.2d 1250, 1253.

Footnote | of the quoted portion of the court below’s opinion is as follows:

“Justice Harlan’s dissent in Harris vs. United States, 403 U.S. 573

(1971), is instructive on the issue of credibility. ‘Il think there is much

truth in the government’s supporting assertion that the ordinary citizen

who has never before reported a crime to the police may, in fact, be

more reliable than one who supplies information on a regular basis

.. .' Id., 599. Justice Harlan continued, ‘without violating the con-

fidence of his source, the agent surely could describe for the

magistrate such things as the informer’s general background, em-

ployment, personal attributes that enable him to observe and relate ac-

curately, position in the community, reputation with others, personal

connection with the suspect, any circumstances which suggest the

probable absence of any motivation to falsify, the apparent

motivation for supplying the information, the presence or absence of a

criminal record or association with known criminals, and the like.’ /d.,

22

Appendix—Opinion of the Superior Court of Pennsylvania.

This Court concludes that there is sufficient evidence

to determine that the second requirement of Aguilar was

met. The informant was reliable because he had never

been arrested or a suspect in a crime, is gainfully em-

ployed, and is a registered elector in Montgomery

County.”

We agree.

The suppression order is reversed and the case remaided

for trial.

SPAETH, J., files a dissenting opinion.

23

Dissenting Opinion in the Superior Court of Pennsyl-

vania by the Honorable Edmund B. Spaeth, Jr. dated

March 2, 1979

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

Appellant,

Vv.

CARL GELFONT.

No. 1807 October Term 1978

Appeal from the Order of the Court of Common

Pleas of Montgomery County Criminal

Div. at No. 712-78.

BEFORE PRICE, SPAETH and WATKINS, JJ.

FILED MAR 2 1979

DISSENT ING OPINION BY SPAETH, J.:

On February 22. 1978, the Commonwealth obtained and

executed a warrant to search appellant’s residence. Marijuana

was found and appellee was arrested and indicted. Following

a suppression hearing on June 6.. 1978, however, all evidence

obtained as a result of the search was suppressed by the lower

court on the ground that the search warrant was issued

without probable cause. The Commonwealth appeals from

this ruling. '

' AS the majority notes. because the record shows that the suppressed

evidence: is critical to the prosecution of this case, the Commonwealth is

entitled to bring its appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d

OS, cert, denied 378 U.S. 910 (1963): Commonwealth v. Reisinger. ea

‘Superior C." a Ald _ stl

: ry ai TOE Fidey

24

Appendix—Dissenting Opinion in the Superior

Court of Pennsylvania.

The warrant was issued upon the following affidavit of

probable cause:

During the last 24 hours affiant interviewed a con-

fidential and reliable informant. The information re-

ceived from the confidential and reliable informant was

that during the last 48 hours, while he (the informant)

was present inside the residence located at 3918 Warfield

Drive, Huntingdon Valley, he (the informant) observed a

large quantity of suspected Marijuana. The Marijuana

was in the possession of white male known to the in-

formant as Carl. Carl is described by the informant being

6'2 and weighting approximately 300 pounds. Affiant

checked the “Coles Directorey” and learned thru that

directory that the residence at 3918 Warfield Drive,

Huntingdon Valley is owned by a Carl Gelfont. Affiant

also checked the Pennsylvania Bureau of Motor Vehicles

and learned that a Pennsylvania Operators License is

issued to a Carl Gelfont, d.o.b. 2/9/42, 3918 Warfield

Drive. Huntingdon Valley. Affiant believes the infor-

mant to be reliable for the following reasons: The infor-

mant has never been arrested or a suspect in a crime. The

informant has been gainfully employed for the majority

of his adult life. The informant is also a registered voter

in Montgomery County. Finally, Affiant believes the in-

formant to be reliable due to the fact that the in-

formation given to Affiant by the informant relative to

the owner of the residence located ‘at 3918 Warfield

Drive Huntingdon Valley, and a description of the

residei'ce thereof, has been substantiated by the Cole’s

Directory, Pennsylvania Bureau of Motor Vehicles and

Lower Moreland Township Tax Records. As a result of

the above information given to Affiant by the con-

fidential and reliable informant, Affiant believes the

confidentiai and reliable informant to be of sound

reasoning and not prone to rash judgements.

25

Appendix—Dissenting Opinion in the Superior

Court of Pennsylvania.

In Aguilar v. Texas, 378 U.S. 108 (1964), the United States

Supreme Court considered the constitutionality of a search

warrant based on hearsay information given by an unh-

identified informant. The Court held that such a warrant is

lawful only when the issuing magistrate has been “informed

of some of the underlying circumstances from which the in-

formant concluded that the narcotics were where he claimed

they were, and some of the underlying circumstances from

which the officer concluded that the informant ... was

‘credible’ or his information ‘reliable.’ ” /d. at 114-115. See

also United States v. Harris, 403 U.S. 573 (1971), Spinelli v.

United States, 393 U.S. 410 (1969). We have interpreted this

holding to mean that in order for such a warrant to be valid,

“the issuing authority must by reference to the information in

the affidavit be able to answer two questions: (1) Do I have

enough information to warrant the belief that the informant

could know what the officer says she told him she knew? And

(2) If 1 do have enough such information, do I also have

enough information to warrant the belief that | the informant]

did know it?” Commonwealth v. Purcell, .... Pa. Superior Ct.

... +4 380 A.2d 914, 917 (1977) (plurality opinion) (original

emphasis). See also Commonwealth v. Davis, 466 Pa. 102, ....

A.2d .... (1976). Commonwealth v. Kline, 234 Pa. Superior

Ct. 12, 335 A.2d 361 (1975); Commonwealth v. Archer, 238 Pa.

Superior Ct. 103, .... A.2d .... (1975).

Here the issuing magistrate had sufficient information to

conclude that if appellee possessed marijuana, the informant

could have observed it when he was at appellee's residence.

The magistrate, however, did not have sufficient information

to conclude that appellant’s assertion was reliable that the

substance he saw at appellant’s residence was marijuana.

26

Appendix— Dissenting Opinion in the Superior

Court of Pennsylvania.

The requirement that an issuing magistrate be informed of

the underlying circumstances from which the affiant for a

search warrant concluded that the information he received

from his informant is reliable is satisfied only if there is

reason for the issuing magistrate ‘to believe both that the in-

former is a truthful person generally and that he has based his

particular conclusions in the matter at hand on reliable data

. . « «”” United States v. Harris, supra at 588 (HARLAN, J.,

dissenting), quoted in Commonwealth v. Slater, 242 Pa.

Superior Ct. 255, 257-58, 363 A.2d 1257, .... (1976). See also

Commonwealth v. Emerich, 225 Pa. Superior Ct. 163, 310 A. 2d

390 (1973) (no probable cause despite tips from respected and

generally credible members of the community because the de-

pendability of their information was not shown). The affiant

here endeavored to establish the reliability of his informant

by asserting that he was a registered voter, was employed, and

had no criminal record. Even if we assume that these facts are

sufficient to show that the informant was generally truthful,?

they do not show that his observations provided reliable data

from which he could have reasonably concluded that ap-

pellant possessed marijuana. As the lower court pointed out,

the affidavit presented to the magistrate did not state that the

informant possessed any knowledge of marijuana that would

enable him to distinguish marijuana from other vegetable

substances of similar appearance and characteristics. Slip

opinion at 3-4. In past cases, we have upheld a warrant where

the accompanying affidavit indicated that the informant was

* Whether the affidavit was sufficient to show the informant's general

truthfulness is by no means certain. See generally In re Burton, .... Pa.

Superior Ct. ..... 1... A.2d .... (J. 382/77, filed Oct. 20, 1978) (no

probable cause where only reasons to believe informant were that in-

formant had “nothing to gain by informing” and came from a family of

“noted upstanding citizens of the community”); Commonwealth v. Slater.

supra (no probable cause where unidentified informant swore before af-

fiant that the information he was giving was truthful).

27

Appendix— Dissenting Opinion in the Superior

Court of Pennsylvania.

familiar with narcotics or contained other facts to show that

the observed substances were probably contraband. See Com-

monwealth v. Cosby, .... Pa. Superior Ct. ..... 335 A.2d 531

(1975) (probable cause present where named informant with

no ulterior motive entered defendant's apartment and saw

packet with white powder. powder residue. and tube on

album cover): Commonwealth v. DiSantis, 222 Pa. Superior Ct.

387. 294 A.2d 789 (1972) (probable cause present where un-

dercover narcotics agent saw marijuana and marijuana

cigarette on defendant's premises): Commonwealth v. Somer-

shoe, 215 Pa. Superior Ct. 246, 257 A.2d 341 (1969) (probable

cause where informant with record of narcotics involvement

saw marijuana in defendant's house and defendant had been

arrested a month before on another narcotics charge): see also

Rutherford v. Cupp, 508 F.2d 122 (9th Cir. 1974), cert. denied,

421 U.S. 933 (1975) (probable cause where neighbor brought

sample of plant growing in defendant's yard to police and

sample proved to be marijuana). However, until today. we

had yet to take judicial notice of the (unproved) fact that the use

of marijuana has become so universal that it is readily

recognizable by law-abiding citizens. See Commonwealth v.

Purcell, supra at ..... 380 A.2d at 917 (no probable cause

where facts recited in affidavit did not warrant belief that in-

formant knew what a marijuana plant looked like). The

majority takes such notice, and in doing so. I submit, it errs.

A judicially noticed fact must be one not subject to reason-

able dispute. See Fed. R. Evid. 201(b) and Advisory Com-

mittee’s comment. it is true that the use of marijuana has risen

dramatically over the past decade. See Glaser, Interlocking

Dualities in Drug Use. Drug Control, and Crime, in DRUGS

AND THE CRIMINAL JUSTICE SYSTEM 45 (Inciardi and

Chambers ed. 1974) (42'¢ of American students in 1970 had

used marijuana and more recent surveys indicate a higher

28

Appendix—Dissenting Opinion in the Superior

Court of Pennsylvania.

percentage of users). Still, 1971 surveys indicated that only

13% of all white collar and only 15% of all blue collar

workers had some marijuana experience. /d. Given these

statistics, whether the average law-abiding citizen is able to

recognize marijuana is at least subject to reasonable dispute

since the ability to recognize it is not innate but is attained

only after training or illicit familiarity.*

i am aware that in determining the sufficiency of an af-

fidavit of probable cause for a search warrant

only the probability, and not a prima facie showing, of

criminal activity is the standard of probable cause, Beck

v. Ohio, 379 U.S. 89, 96, 13 L.Ed. 2d 142, 147, 85 S. Ct.

223 (1964); that affidavits of probable cause are tested by

much less rigorous standards than those governing the

admissibility of evidence at trial, McCray v. Illinois, 386

U.S. 300, 311, 18 L.Ed. 2d 62, 70, 87S. Ct. 1056 (1967):

that in judging probable cause issuing magistrates are not

to be confiried by niggardly limitations or by restrictions

on the use of their common sense, United States v. Ven-

tresca, 380 U.S. 102, 108, 13 L.Ed. 2d 684, 688, 85 S. Ct.

741 (1965); and that their determination of probable

cause should be paid great deference by reviewing

courts, Jones v. United States, 362 U.S. 257, 270-271, 4

L.Ed. 2d 697, 707, 708, 80 S. Ct. 725, 78 ALR 2d 233

(1960).

Spinelli v. United States, supra at 419.

* One further fact may be noted. As appears in the affidavit quoted supra,

the affiant also said that he believed the informant to be reliable because

the informant’s assertion that appellee lived at 3918 Warfield Drive had

been verified. This verification, however, could not establish the reliability

of the informant’s assertion that appellant possessed marijuana at the

residence. See generally Commonwealth v. Devine, 233 Pa. Superior Ct. 99,

. A.dd .... (1975).

29

Appendix—Dissenting Opinion in the Superior

Court of Pennsylvania.

Still, the fact remains that the affidavit here set forth no facts

to establish the reasonableness of the informant’s suspicion

that appellant possessed marijuana.‘ No assertion was made

that the informant had ever seen marijuana before. Nor did

the magistrate know the age and background of the in-

formant. He knew that he was not a student, for the affidavit

states that he “has been gainfully employed for the majority

of his adult life.” He may have been a recent graduate, but the

statistical probability is that he is a member of the larger class

of middle-aged and senior citizens. Nor did the affidavit

assert that appellee told the informant that the substance he

observed was marijuana, or that the informant saw appellee

using or manufacturing the substance, or that appellee had a

prior record involving narcotics violations.

* The marjority’s emphasis on the particular words used in the affidavit

misconstrues this opinion and, I believe, the opinion of the lower court.

The search warrant lacked probable cause not because the words “suspect-

ed marijuana” were used in the affidavit, but because of the absence of any

facts from which the magistrate could have concluded that the informant

had a reasonable basis for claiming that the substance he saw was mari-

juana. Commonwealth v, Banahasky, 250 Pa. Superior Ct. 495, 378 A.2d 1257

(1977), which is cited by the majority, is not only entirely consistent with

this dissent, but proves the point I make. In Banahasky, the informant was a

chief of police. From this fact the magistrate who issued the search warrant

could have reasonably concluded that the informant was familiar with nar-

cotics and that his suspicion was probably accurate that the substance he

found on the suspect was marijuana.

Also, I note that although both the majority and the lower court have

treated the issue of the informant'’s ability to recognize marijuana as in-

volving the first prong of the test established in Aguilar v. Texas, (i.e., as

involving the circumstances from which the informant concluded that nar-

cotics were where he claimed they were), I have treated the issue as in-

volving the second prong (i.e., as involving reliability), believing that by

doing so the questions presented will be focused more clearly.

30

Appendix— Dissenting Opinion in the Superior

Court of Pennsylvania.

In most cases, the reliability of an informant is satisfied by

police reliance on information that has in the past led to

arrests and convictions. Of course, there is always a first time

for every informant, as the present case demonstrates. Our

cases hold that the police should not discourage law-abiding

citizens from coming forward with information of criminal

conduct, but neither should the police be exempted from test-

ing the reliability of the information they receive merely to

accommodate their informants. Commonwealth v. Slater, supra

at 258, .... A.2d at ..... To hold otherwise, in order to

validate warrants like the one involved here, would be to in-

fringe upon the public’s legitimate expectation that a person

will not be subject to search and seizure whenever another has

lifted an accusatory finger, absent a preliminary testing of the

rationality of the accusation.

I would affirm.

31

Judgment of the Superior Court of Pennsylvania

dated March 2, 1979

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

Appellant,

Vv.

CARL GELFONT.

No. 1807 October Term, 1978

ON CONSIDERATION WHEREOF, it is now here ordered

and adjudged by this Court that the judgment of the Court of

Common Pleas of MONTGOMERY County be, and the same

is hereby REVERSED AND THE CASE REMANDED FOR

TRIAL.

BY THE COURT:

J. HANIEL HENRY,

Prothonotary.

Dated: March 2, 1979.

32

Judgment of the Supreme Court of Pennsylvania

dated June 4, 1979

NO. 421 ALLOCATUR DOCKET

COMMONWEALTH OF PENNSYLVANIA,

Vv.

CARL GELFONT,

Petitioner.

FOR PETITIONER:

Anthony J. Giangiulio

Suite 505

One Montgomery Plaza

Norristown, Pa. 19401

FOR RESPONDENT:

William T. Nicholas

District Attorney

Montgomery County Court House

Norristown, Pa. 19401

3/29/79. PAA from Superior Court at No. 1807 October Term

1978, filed.

6/4/79. Denied. P. C.