This appeal by the Commonwealth from an order suppressing evidence of a gambling operation seized by police during execution of a search warrant requires that we determine (1) whether the affidavit recited facts sufficient to constitute probable cause, and (2) whether the premises to be searched were described in the warrant with sufficient particularity. We conclude that the search warrant was valid and reverse the order of the trial court suppressing evidence seized by the police.
(Emphasis added.) Christine Carlisle and Loretta Marinacci were present in apartment # 1 when the warrant was executed on May 9th. Seized, among other things, were numbers sheets, owe sheets, a log book, and telephones bearing the telephone numbers stated in the warrant application. Thereafter, Carlisle and Marinacci were arrested and charged with criminal conspiracy and conducting a lottery. They filed a joint motion to suppress the evidence seized on May 9th. An evidentiary hearing was held, and
The magistrate's determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983); Commonwealth v. Corleto, 328 Pa.Super. 522, 528, 477 A.2d 863, 866 (1984). "[A] magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion." Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-502 (1984), quoting Illinois v. Gates, supra 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra 322 Pa.Super. at 46-47, 469 A.2d at 173.
"[A] `tip' from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant's credibility." Commonwealth v. Miller, supra 334 Pa.Super. at 381, 483 A.2d at 501. See also: 68 Am.Jur.2d Searches and Seizures § 65 (1973). Reliability is sufficiently shown by past investigative leads which proved reliable and accurate. Commonwealth v. White, 311 Pa.Super. 146, 152, 457 A.2d 537, 539 (1983). The passage of time following the last offering of
The affidavit in the instant case contained information which was adequate to establish the reliability of the informant. He told police that he had placed recent bets, one earlier on the same day, by calling telephone numbers which police traced to apartment # 1 at 9935 Frankstown Road, Penn Hills. The informant had proved himself reliable on at least two prior occasions. This was itself adequate to demonstrate reliability and show probable cause to believe that an illegal gambling operation was being conducted. The police, however, attempted to corroborate this information by placing calls of their own. These calls disclosed a pattern consistent with a numbers operation. The fact that the pattern may also have been consistent with a lawful use of the telephone did not destroy the probable cause established by information derived from the informant. See: Commonwealth v. Corleto, supra (innocent details and/or conduct consistent with activity of law abiding citizens may confirm an informant's tip).
The warrant issued by the magistrate was stated expressly to be for premises described in the application. The premises described in the application were a two story frame house, but the statement of probable cause further restricted the premises being used to conduct a gambling operation to "1st fl. apt. 1." In executing the warrant, the police searched only apartment # 1 on the first floor, where they discovered and seized the evidence suppressed by the pre-trial hearing court.
The only apartment searched, moreover, was apartment one on the first floor. Even if the warrant be interpreted as authorizing too extensive a search, therefore, it is apparent that the appellee-occupants of apartment # 1 were not aggrieved thereby. See: Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978).
We conclude, for these reasons, that the suppression court erred when it held the search warrant invalid and suppressed evidence of an illegal gambling operation seized during the execution of such warrant.
Reversed and remanded for further proceedings. Jurisdiction is not retained.