OPINION OF THE COURT
Appellants, Eddie Jackson and Ronald Garrett, were arrested and charged with unlawful possession of a controlled substance, unlawful possession with intent to deliver dangerous drugs and conspiracy to commit an unlawful act.
The record discloses the following:
On June 14, 1972, at approximately 6:00 p.m., Trooper George Wynn of the Pennsylvania State Police
While seated in the police vehicle, Trooper Wynn immediately advised Jackson of his rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966). The officer then went on to tell Jackson that he "suspected him of transporting large quantities of heroin across Pennsylvania . . ." because he "was familiar with his [Jackson's] stop on the 21st of January, 1972, at which time he had a brown paper bag containing $25,000 in U.S. paper currency" and that on the 21st day of January, 1972, Trooper Wynn "was made aware of information from Detroit . . . that he [Jackson] was a large narcotic dealer in the Detroit area" who used the Pennsylvania Turnpike to transport large quantities of heroin. During the course of this conversation, Jackson said nothing incriminating, but told Trooper Wynn he was traveling from Newark, New Jersey, and had left Detroit on Monday, June 12th.
Trooper Wynn then returned to the Ford automobile and advised Garrett of his Miranda rights. Garrett stated he understood his rights and, upon questioning, informed Trooper Wynn that he and Jackson were traveling from Newark, New Jersey, and had departed from Detroit on Tuesday, June 13th. When confronted with this apparently contradictory statement, Jackson stated
Enroute to the State Police barracks, Garrett stated he had traveled to Newark, in the Ford automobile, with a girl friend named Ruby Smith. However, upon being advised by Trooper Wynn that the same vehicle had been stopped earlier in the day for speeding on the turnpike and that the arresting officer had reported the occupants of the vehicle to be two males, Garrett changed his story. He explained that Trooper Wynn had misunderstood his first statement and that his traveling companion had been Reuben Smith.
Following arrival at the State Police barracks, Trooper Wynn obtained a warrant to search the trunk of the Ford automobile for "Narcotics, Controlled Substances, and Stolen Articles." The affidavit in support of the issuance of the warrant recounted the events which transpired on June 14th, namely: (1) the stopping of the Ford automobile for speeding on two occasions; (2) the inconsistent and contradictory statements given by Jackson and Garrett; (3) the absence of a trunk key and the
Appellants contend the warrant which authorized the search was constitutionally defective, in that it was issued without a showing of probable cause and, thus, renders the evidentiary use of the property seized in the execution of the warrant as constitutionally proscribed at trial. We agree.
Before a magistrate may issue a constitutionally valid search warrant he must be furnished with information sufficient to persuade a reasonable man that probable cause to conduct a search does exist. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The requisite probable cause must exist at the time the warrant is issued and be based on facts which are closely related in time to the date of the issuance, for it is well-settled that stale information cannot supply the probable cause necessary for
Instantly, the only information contained in the affidavit relating to the possible presence of narcotics or other controlled substances in the trunk of the Ford automobile, dated from January 21, 1972, almost five months prior to the issuance of the search warrant. As this Court noted in Commonwealth v. Shaw, supra, 444 Pa. at 113-114, 281 A.2d at 899:
Here, as in Shaw, the requirement of establishing continuing criminal activity has not been satisfied. See also Commonwealth v. Simmons, supra.
The Commonwealth argues the furtive behavior of the appellants, when considered with the reports of past criminal narcotic activity, dictated the probability that, on June 14th, the appellants were using the Pennsylvania Turnpike for the transportation of narcotics, thus supplying the required element of continuity. However, evidence to demonstrate continued criminal activity must establish actual continuity of the illegal enterprise. Commonwealth v. Eazer, supra, 455 Pa. at 324, 312 A.2d at 400. Herein, Trooper Wynn possessed no information that a crime had been committed. He had neither an informant's tip nor the benefit of police surveillance to indicate that narcotics were being transported in the Ford vehicle. Although the appellants' behavior may
The Commonwealth contends that, even if probable cause did not exist to justify a search for narcotics, there was probable cause to search the trunk of the automobile for stolen goods, and since the presence of the narcotics was disclosed through this search, this contraband was properly seized under the "plain view" doctrine set forth in Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed. 564 (1971). We find this position to be devoid of merit.
Fundamental to the application of the "plain view" doctrine is the principle that the seized objects must not have been put in plain view as a result of unlawful police conduct. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. Jeffries, 454 Pa. 320, 327, 311 A.2d 914 (1973). Instantly, probable cause to search the trunk for stolen goods did not exist. The sole indication that stolen goods might be found in the trunk of the Ford automobile was the discovery of an unexplained Blue Cross identification card in the interior of the vehicle. Trooper Wynn possessed no information indicating the Blue Cross card had been stolen, nor was he in possession of knowledge indicating the appellants were transporting stolen goods. Under these circumstances, the mere discovery of an unexplained Blue Cross identification card,
The orders of the Superior Court are reversed. The judgments of sentence of the court of original jurisdiction are reversed and a new trial is ordered.
JONES, C.J., dissents.