Commonwealth v. Conner
Commonwealth v. Conner
Concurring Opinion
I agree that appellant’s motion to suppress should have been granted because the magistrate was not informed “. . . of the underlying circumstances from which the officer concluded that the informant. . . was ‘credible? or his information ‘reliable.’ ” Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964) (footnote omitted), and concur in the decision of the Court on that basis.
For the reasons stated in my dissenting opinion in Commonwealth v. Milliken, 450 Pa. 310, 318, 300 A. 2d 78 (1973), however, I think appellant should prevail also on the first ground here advanced, viz., that the procedure which allows the suppression hearing judge to undertake to cure a defective search warrant by evidence of sworn oral testimony supposedly presented earlier to the issuing officer is constitutionally defective.
Opinion of the Court
Opinion by
On January 24, 1968, appellant Conner was adjudged guilty, by a jury, of the unlawful possession of a firearm. Uniform Firearms Act, Act of June 24, 1939, P. L. 872, §628, as amended, 18 P.S. §4628. Post-trial motions for a new trial and in arrest of judgment were denied. An appeal to the Superior Court resulted in a per curiam order of affirmance, with two judges dissenting. Commonwealth v. Conner, 217 Pa. Superior Ct. 85, 266 A. 2d 784 (1970).
Appellant, on this appeal, challenges as error the suppression court’s refusal to grant, after an evidentiary hearing, appellant’s timely filed pretrial motion
Appellant cannot prevail on his first contention. As this Court recently stated in Commonwealth v. Millihen, 450 Pa. 310, 314, 315, 300 A. 2d 78, 81 (1973) : “Despite the obvious desirability of having all the information before the magist/rate in loriting, toe are not 'persuaded that the affiant’s sworn oral testimony may not supplement his written affidavit and together supply the constitutional basis for the issuance of a search warrant. Appellant has been unable to cite any authority in support of his position and indeed the existing case law is to the contrary. See, e.g., Boyer v. Arizona, 455 F. 2d 804 (9th Cir. 1972) ; Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Sparks v. United States, 90 F. 2d 61 (6th Cir. 1937); Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A. 2d 885 (1966), Aff'd. 432 Pa. 627, 247 A. 2d 226 (1968). In the absence of any constitutional or decisional authority or procedural rule making impermissible the procedure here employed, appellant’s claim for relief on this asserted ground must be rejected. In doing so we nevertheless express our preference for reducing to writing in some acceptable manner sworn oral testimony offered in support of the issuance of the search warrant.
“We shall therefore, in exercise of our supervisory powers, formulate by rule of Court appropriate proce
As to appellant’s second argument that the “two prong” reliability test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), was not met, we agree.
As the Commonwealth properly concedes, the facts contained in the written search warrant affidavit are patently insufficient to establish the existence of probable cause for a search.
It is clear that the above noted testimonial allegations, even when read in conjunction with the defective
Furthermore, the affiant’s mere conclusion that appellant had “a prior history of having carried firearms” is nothing “. . . but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s [alderman’s] decision.” Spinelli, supra at 414, 89 S. Ot. at 588. This is especially true where, as here, the affiant never identified the source of his information that appellant had a past history of carrying firearms. The affiant-officer’s statement, accordingly, should not have been considered in determining whether probable cause existed.
The search warrant is defective not only for the above reasons, but also because the alderman was not supplied a time-frame upon which to ascertain when the affiant gained his information from his informants, when the informants themselves obtained the information they allegedly had, and if probable cause present
Here, as in Simmons, in neither the affidavit nor the sworn testimony given by the affiant, was the alderman informed as to when appellant had maintained
“If we were to sustain the magistrate’s determination, the issuance of search warrants would be allowed solely upon suspicion of criminal conduct, a standard far less demanding than that embodied in the Fourth Amendment. We cannot countenance such a deviation from explicit constitutional norms. ‘Indeed, if the affidavit [and sworn testimony] in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for [the magistrate].’ Rosencranz, supra at 317. ‘It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed.’ Id. at 317 (emphasis added).” Simmons, supra at 631, 301 A. 2d at 823.
On this record, we cannot conclude that the affidavit and sworn testimony at issue provided a sufficient basis for an independent determination by a neutral judicial officer that probable cause existed.
The judgment of sentence is reversed and a new trial granted.
Judge Hoffman filed a dissenting opinion, in which Judge Cercone joined.
Appellant also challenges the validity of §4628 of the Uniform Firearms Act and alleges numerous other trial errors. However, in view of our disposition we need not decide these issues.
However, in reaching our determination, we are mindful of the Supreme Court’s admonition in United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746 (1965) that: “. . . the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”
Tlie probable cause segment of the written affidavit submitted to the alderman (alderman in Harrisburg are authorized to issue warrants in the same manner as are magistrates) was obviously constitutionally deficient: “. . . the Facts and Circumstances tending to establish [the police officer’s] belief that the [firearm is] situated at and in the [appellant’s] vehicle are (inter alia) as follows : That on or about the day of , 196 that witness [sic] have reported the weapons are carried by subject in the vehicle, a red Chevrolet Sedan, Bearing Maryland Registration No. FY6-848.”
The alderman testified at the suppression hearing as follows: “A. My recollection is that he [the affiant-officer] told me that he had reason to believe—he had information that there was a gun in this car from reliable sources. Q. Now, do you recall whether or not he told you who the reliable sources were? A. No. Q. Well, when you say no, you don’t recall or he didn’t tell you? A. I don’t think I asked him. Q. Do you recall whether or not he told you anything about the reliable sources, that is, with respect to why he thought they were reliable? A. No, he didn’t go into detail, except to say he had reliable information that there was a gun in the car.”
Concurring Opinion
Concurring Opinion by
I join in the majority opinion except that I adhere to my views expressed in Commonwealth v. Milliken, 450 Pa. 310, 300 A. 2d 78 (1973) that probable cause for the issuance of a warrant must be found in the affidavit executed prior to the issuance of the warrant.
Reference
- Full Case Name
- Commonwealth v. Conner, Appellant
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- Published