Commonwealth v. Archer , 238 Pa. Super. 103 ( 1975 )

Opinion by

Price, J.,

Appellees were indicted for pool selling and bookmaking.¹ The lower court sustained appellees’ motion to suppress the evidence, and the Commonwealth has appealed. There is no question that this appeal is proper. Commonwealth v. Deren, 233 Pa. Superior Ct. 373, 337 A.2d 600 (1975). In spite of an excellent opinion by Judge Weid-NEE, we believe the evidence should have been admitted and will, therefore, reverse the suppression order and allow the Commonwealth’s use of the evidence.

The record reveals that on October 4, 1974, Trooper George Wynn of the Pennsylvania State Police obtained a search warrant for appellees’ residence at 7 Creek Road, Lower Allen Township, Cumberland County, Pennsylvania. The premises and all persons therein were to be searched for gambling paraphernalia.

Trooper Wynn arrived at the premises at approximately 3:00 p.m., accompanied by Troopers Frederick Boyer and Doris Scott. The house was unoccupied at the time, and the officers waited outside until 3:40 p.m., when appellee Mrs. Archer arrived. Trooper Wynn identified himself, told the appellee that he had a search warrant, and accompanied her into the house. The trooper read the probable cause section of the warrant to Mrs. Archer and also the section describing what items were to be seized.

The only evidence uncovered by the search of the premises was a daily racing form. However, a search of Mrs. Archer’s pocketbook uncovered two slips containing wagers on horse races, as well as two small books with telephone numbers. In addition, several telephone calls were received at the residence during the search. In every instance, the telephone was initially answered by Trooper Scott. The first caller identified himself as Sam Reiseman from Philadelphia and stated that he wished to speak to “Reb” (a nickname for appellee Lemuel Archer). Trooper Scott informed him that “Reb” was not present, and the caller then asked for “Nanna” (a nickname for Mrs. Archer). Mrs. Archer was immediately handed the telephone. Mrs. Archer told the caller she didn’t know why he was calling, and attempted to break the connection. However, Trooper Boyer lifted the receiver on an extension telephone in a nearby room and kept the line open. Trooper Scott then spoke into the telephone, and the man on the other end placed a wager on a horse race.

A second call was from a man named “Doc” who said he was calling for “Phil.” He wanted to know why the telephone number had been changed from 6996 (the telephone number at the alleged location of a Dauphin County bookmaking operation). This caller also inquired if the results were in yet. A third caller immediately hung up when Trooper Scott answered the telephone, and a fourth caller stated he had the wrong number and hung up. About a minute later, a fifth call came in. Trooper Scott testified that the voice of this caller sounded like the voice of the fourth caller. This person asked for “Lem,” and, when informed that he was not present, left the message, “tell him Clint called and will call back.”²

We must first examine the officer’s written affidavit to determine if adequate probable cause existed to support the issuance of the search warrant.³ The affidavit, as presented to the magistrate, reads as follows:

“On August 19, 1974, this officer executed a search warrant at 421 S. 17th Street, Harrisburg City, Dauphin County, Penna. The raid resulted in the seizure of gambling equipment & records. One (1) person was arrested for BOOKMAKING. The seized records indicated that this location was being used to receive horse bets from approximately fifteen (15) BOOKMAKERS in Dauphin & Cumberland Counties. The services of a confidential informant were acquired to identify the person (s) running the gambling operation. The informant advised that Lemuel Thomas ARCHER also known as the ‘REBEL’ is running the gambling operation. The informant indicated that ARCHER did not take the bulk of the action, however, ARCHER is taking action from certain individuals at locations in Dauphin & Cumberland Counties. The Dauphin County location is 4913 Virginia Ave., Lower Paxton Twp., phone 717 652 6996. The phone is listed to Lloyd T. BROWN at the same address. The Cumberland County location is 7 Creek Road, Lower Allen Township, phone 717 761 5384. The phone is listed to Lemuel T. ARCHER at the same address.

On 10, 17, & 25 Sept. 74, the informant placed horse bets with ARCHER in Dauphin Co. by calling 717 652 6996.

On 29 Sept. 74, the informant called ARCHER at his residence in Lower Allen Township, Cumberland Co., Penna. by calling 717 761 5384. The informant placed horse bets in the amount of $26.00 on horses performing at the PENN NATIONAL RACE TRACK on 29 Sept. 74. The telephone call was made to ARCHER at 1210 hrs., 29 Sept. 74 in the presence of this officer.

The reliable confidential informant is a person known to this officer. Numerous investigative leads have been furnished to this officer by the informant. All previous information furnished by the informant has been very reliable and accurate. The information furnished by the informant in reference to the illegal activities of Lemuel Thomas ARCHER, also known as the ‘REBEL’ has been very accurate and reliable.

Based on the herein contained information this officer believes that Lemuel Thomas ARCHER, also known as the ‘REBEL’ is running an illegal gambling operation in Dauphin & Cumberland Counties. This officer believes that gambling paraphernalia is located at both locations.

The initial information furnished this officer by the confidential informant in reference to telephone numbers & locations of the said telephone numbers was proven to be reliable through further investigation & surveillance. The information received from the informant relative to Lemuel Thomas ARCHER (REBEL) being involved in the BOOKMAKING was accurate in that ARCHER was placed at 4913 Virginia Ave., Lower Paxton Twp., Dauphin Co., Penna. during the time period that the informant bets were being placed.”

The standard for determining the sufficiency of the affidavit was enunciated in the oft-cited case of Aguilar v. Texas, 378 U.S. 108 (1964). The Supreme Court of the United States there said:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, (citation omitted), the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the [objects to be seized] were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, (citation omitted), was 'credible’ or his information 'reliable.’ ” 378 U.S. at 114-15.

In effect, the affiant must give facts sufficient to enable the magistrate to make two independent judgments: (1) that the affiant is probably correct in his belief that the informer is reliable, and (2) that what the informer told the affiant is probably accurate.

The first requirement may be met where the affidavit either sets forth the manner in which the informant obtained his information or describes the criminal activity in detail. Commonwealth v. Samuels, 235 Pa. Superior Ct. 192, 340 A.2d 880 (1975). The second requirement may be met in several ways: (1) 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 informant’s tip ? Commonwealth v. Ambers, 225 Pa. Superior Ct. 381, 310 A.2d 347 (1973).

There can be little doubt that the first requirement has been met. The information given by the informant describes in detail the criminal activity, and gives three recent dates when the informant placed bets with Lemuel Archer. This is adequate to satisfy the first of the two prongs of the Aguilar test.

Of more vital concern is the establishment of the informant’s reliability. While past reliability is most often established through a showing of convictions which resulted from information supplied by the informer, e.g., Commonwealth v. Williams, 236 Pa. Superior Ct. 184, 345 A.2d 267 (1975); Commonwealth v. Ambers, supra, there is no logical reason for mandating that all information lead to convictions before reliability is established. In the present case, the officer’s written statement alleges that the informer supplied “investigative leads,” all of which were reliable and accurate. The officer established contact with the informer, indicating he believed the informant was reliable. In addition, the information was corroborated by the trooper when, in his presence, the informer placed a wager on a horse race by calling Archer’s home telephone number. Finally, the police were aware of the existence of a large organization involved in illegal betting, and the information supplied by the informer was consistent with this. Thus the second prong of the Aguilar test was complied with. Cf., Commonwealth v. McKeever, 229 Pa. Superior Ct. 35, 323 A.2d 44 (1974).

Appellees also contend that the subject matter of the telephone calls should not be admitted because the means by which the police obtained this information violated the Pennsylvania anti-wiretapping statute.⁴ This contention is clearly without merit. Our court has consistently rejected such arguments and has held that the evidence of such conversations is admissible to prove the placing of bets and thus sustain charges of lottery and bookmaking. Commonwealth v. Lucchese, 233 Pa. Superior Ct. 273, 335 A.2d 508 (1975); Commonwealth v. DiSilvio, 232 Pa. Superior Ct. 386, 335 A.2d 785 (1975); Commonwealth v. Bufalini, 223 Pa. Superior Ct. 489, 302 A.2d 352 (1973); Commonwealth v. Gurreri, 197 Pa. Superior Ct. 329, 178 A.2d 808 (1962).

The order suppressing the evidence is reversed.

1 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §5514).

2 . Several other calls were received at the house during the search, but they have no relevance to the present case.

3 . Only the written statements submitted to the magistrate can be used to support probable cause. Pa.R.Crim.P. 2003(a).

4 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §5702), as amended, June 27, 1973, P.L. 69, No. 29, §1.