Commonwealth v. Hall
Commonwealth v. Hall
Opinion of the Court
Opinion by
Appellant William Hall was tried nonjury in the Common Pleas Court of Philadelphia and convicted of possession and use of narcotic drugs. Post-trial motions were denied and appellant was sentenced to a term of imprisonment of not less than forty days nor more than twenty-three months. The Superior Court affirmed the judgment of sentence, Commonwealth v. Hall, 219 Pa. Superior Ct. 760, 281 A. 2d 345 (1971), and we granted allocatur. For reasons which follow, we remand for another suppression hearing.
Prior to trial appellant made a timely motion to suppress certain evidence in accordance with Pa. R. Crim. P. 323(b). After an evidentiary hearing the motion to suppress was denied. It is the scope and result of that suppression hearing which forms the primary basis for this appeal.
To establish the reliability of the information received from the unnamed informer, Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), the affidavit alleged that in the past two years the police had received information from that informant in at least five cases, three resulting in convictions and two still pending. Based on the assertions contained in the affidavit, including the apparent establishment of the informant’s reliability, the magistrate determined that controlling probable cause standards had been satisfied and issued the warrant. Appellant concedes that the language on the face of the warrant recites probable cause.
During cross-examination of the police officer-affiant at the suppression hearing defense counsel asked for the names of those individuals previously arrested as a result of information received from the unnamed informants.
The threshold question is whether the veracity of facts establishing probable cause recited in an affidavit supporting a warrant can be challenged and examined at a suppression hearing. Indeed, such facts may be so challenged. In Commonwealth v. D’Angelo, 437 Pa. 331, 263 A. 2d 441 (1970), this Court sustained a challenge to a search warrant when it was later established that the police officer-affiant knowingly falsified a material statement in the affidavit supporting the warrant. In so holding this Court, pertinently noted: “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.” Id. at 337-38, 263 A. 2d at 444.
Bather, the right to challenge the truthfulness of recitals in a warrant follows from the command of Aguilar-Spinelli that the magistrate make a “detached and objective determination” of probable cause. Commonwealth v. D’Angelo, supra at 338, 263 A. 2d at 444. If a magistrate is furnished, and reviews falsified averments, he is effectively “[precluded from making] a detached and objective determination.” Id.
The Commonwealth rather reluctantly concedes this point,
We must reject such an unduly restrictive interpretation of Commonwealth v. D’Angelo, supra. Such an interpretation would virtually emasculate the teaching
Here the pivotal issue at the suppression hearing was the reliability of the information attributed to the unnamed informer. If the informer was reliable, the search warrant was issued with probable cause. If the informant was proven to be without reliability, the warrant was improperly issued.
However, the allegation of “5 arrests and 3 convictions” resulting from an unnamed informant’s earlier information is an assertion that is impossible for a defendant to explore prior to the suppression hearing, and is clearly a proper subject for inquiry there. Moreover, even discovery under Pa. R. Crim. P. 310 would not gain a defendant either the desired information or the opportunity to challenge the assertion of previous reliability by the affiant. Nor is it information within
It must be concluded that appellant at the suppression hearing should have been afforded the opportunity through “the traditional safeguard” of cross-examination, to test the truthfulness of the recitals in the warrant alleging the informant’s previous reliability.
We remand for a new suppression hearing in conformity with this opinion. If the suppression court determines the challenged evidence is to be suppressed, then a new trial is granted. If, however, the court determines the evidence is not to be suppressed, the judgment of sentence remains and appellant may file a timely appeal from that determination, if he so desires.
The search warrant specified an apartment containing narcotic drugs, but did not name appellant as an occupant. Because of our disposition we need not reach appellant’s related contention that the search warrant did not give the police authorization to search him when he was found at the apartment.
The affidavit in support of the warrant also stated that police surveillance observed several “drug users’’ entering the apartment building specified in the warrant. The police officer-affiant
This police corroboration was not independently sufficient to establish probable cause. Thus we need not decide the propriety of the hearing court’s refusal to permit this form of cross-examination. See note 7, infra.
See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, §§4.4, 4.6 (Approved Draft, 1970).
See, e.g., United States ex rel. Laws v. Yeager, 448 F. 2d 74 (3d Cir. 1971) ; United States v. Freeman, 358 F. 2d 459 (2d Cir. 1966), cert. denied, 385 U.S. 882, 87 S. Ct. 168 (1966) ; United States v. Bowling, 351 F. 2d 286 (6th Cir. 1965) ; King v. United States, 282 F. 2d 398 (4th Cir. 1960) ; United States v. Pearce, 275 F. 2d 318 (7th Cir. 1960) ; Theodor v. Superior Court, 8 C. 3d 77, 501 P. 2d 234 (1972) ; People v. Alfinito, 16 N.Y. 2d 181, 264 N.Y.S. 2d 243, 211 N.E. 2d 644 (1965).
As the court in United States v. Freeman, supra at 463 n.4 observed: “A defendant may be able to challenge the veracity of recitals of ‘previous reliability’ by a motion to suppress. . . . Such a procedure would diminish the danger of a warrant issuing on an officer’s good faith misjudgment as to the reliability of an informant, as well as dangers of police laxity or bad faith. The temptation for officers to include unjustified recitals of informants’ reliability would be reduced.”
Commentators have noted that further review of the affidavits supporting a warrant is necessary because of the ex parte, exigent circumstances of the initial issuance of the warrant. Ad
Much of the Commonwealth’s brief is occupied with quotes from jurisdictions not allowing challenges to the veracity of warrants after their issuance.
The Commonwealth also argues that what it terms the independent police corroboration of the initial tip from the informant might satisfy Aguilar-SpinelU requirements of probable cause. See n.2, supra. In fact that claimed corroboration only revealed that “drug users” were entering a building containing several apartments. Certainly that information would not establish probable cause to search one of the many apartments in the building. Compare United States v. Thornton, 454 F. 2d 957, 970 (D.C. Cir. 1971) (alternate holding).
Concurring Opinion
Concurring Opinion by
The United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914) and Mapp v. Ohio, 367 U.S. 643 (1961) required the exclusion from federal and state courts, respectively, of evidence seized in violation of the Fourth Amendment.
My concern is that this Court’s decision in Commonwealth v. D’Angelo, 437 Pa. 331, 263 A. 2d 441 (1970) and the majority opinion in this case should be understood as being limited to situations where the challenge alleges deliberate misstatements by a police official affiant
Where the affiant is a police official and perjury is committed by that official or with his knowledge and consent to provide a basis for securing the warrant I am satisfied that this is the type of offensive governmental action that the Fourth Amendment was directed against and the exclusionary doctrine designed to deter.
It must be remembered that every misstatement need not be a result of perjury and could just as likely result from inadvertence or negligence. In either instance the problems are unique. They differ not only from the deliberate lie but between themselves and should be resolved only when that specific factual issue is raised.
In conclusion, in my judgment, the decision in this case and in D’Angelo, supra, should not suggest that we have affirmed unlimited inquiry into the underlying validity of the affidavit or that any inaccuracy would necessarily justify the exclusion of evidence seized pursuant thereto.
United States Constitution, Amendment IV
“Tbe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 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 persons or things to be seized.”
See Spinelli v. United States, 393 U.S. 410 (1969) ; Aguilar v. Texas, 378 U.S. 108 (1964).
“Petitioner attacks tke validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish ‘probable cause’.” Rugendorf v. United States, 376 U.S. 528, 531-32 (1964).
The federal eases are divided not only as to whether a challenge should be allowed but also as to the nature and extent of that challenge. Some federal decisions have held that the defendant cannot go behind the face of the affidavit: United States v. Brunett, 53 F. 2d 219 (W.D. Mo. 1931) ; Kenney v. United States, 157 F. 2d 442 (D.C. Cir. 1946). Other cases have recognized the propriety of allowing a challenge to the truth of an affidavit: United States v. Ramos, 380 F. 2d 717 (2d Cir. 1967) ; while still others have permitted challenges to particular allegations in affidavits: United States v. Bozza, 365 F. 2d 206 (2d Cir. 3966) ; United States v. Freeman, 358 F. 2d 459 (2d Cir. 1966), cert. denied, 385 U.S. 882, 87 S. Ct. 168 (1966) ; United States v. Bowling, 351 F. 2d 236 (6th Cir. 1965) ; King v. United States, 282 F. 2d 398 (4th Cir. 1960).
Perjury by an informant where police are unaware of the falsehood and had a reasonable basis to believe the information received presents an entirely different situation and in my judgment should not be controlled by this decision or the decision in Commonwealth v. D’Angelo, 437 Pa. 331, 263 A. 2d 441 (1970).
Where the perjury concerned a fact not necessary to establish the probable cause on the face of the affidavit I would find great difficulty in concluding the appropriateness of the exclusionary doctrine. Such a case would present distinctly different considerations and should not be considered as being answered by this decision.
Reference
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