*1
constitutionally
jury
investigating grand
is
entitled to
Particularly
of counsel
all times.
is
assistance
court informed
this true
this case where the
the wit-
subpoenaed
“. . . You have been
because
ness that
investigation
your
you
on
has focused
activities and
are
having
suspected
violated certain laws
the Com-
Pennsylvania.
. . .”
monwealth
accept
person
I cannot
the view that a
arrested for
of a
more
the commission
crime has
constitutional
rights
yet
than a citizen who has not
been arrested. See
12 L.
Illinois,
Escobedo v.
378 U.S.
Ed. 2d
(1964) and Miranda Arizona,
S. Ct. 1758
16 L. Ed. 2d
Betrand *2 Before Argued C. January 9, 1973. J., Eagen, Jones, JJ. O’Brien, Nix Roberts, Pomeroy, Manderino, *3 Stuart H. Schuman, Assistant with him Defender, Jonathan Miller, Assistant and Defender, Vincent J. for Ziccardi, Defender, appellant.
James T. llanney, Assistant District with Attorney, him Milton Stein, M. Assistant District 'Rich- Attorney, ard A. First Assistant District Sprague, Attorney, Arlen for Specter, District Attorney, Commonwealth, appellee. by
Opinion 1973: April Roberts, Me. Justice a On his assistant January 8, pharmacist unidentified males on beaten and robbed three by were in at approximately Germantown Avenue Philadelphia later the received an 8:00 Almost six weeks p.m. police from a who said that one call anonymous phone youth “Primo” of the in named was participants robbery and that “Primo” in a certain area Philadel- lived Two phia. days George Betrand, later, appellant, known to the was arrested “Primo”, as juvenile, police to the without a warrant. He was taken immediately room station house and a locked placed interrogation he A where remained two hours. approximately him of detective arrived and advised his subsequently from the standard rights by reading interrogation card. After one-half hour of approximately questioning, an oral appellant gave statement his involve- admitting ment the robbery. with
Apрellant assault with charged robbery, intent assault and and con kill, aggravated battery, He spiracy. adjudicated Juvenile delinquent Division Court and com Family Philadelphia mitted to the Youth Fol Development South. Center, that determination he to the lowing appealed Superior affirmed the adjudication Court which delinquency. Betrand Ct. 293 A. Appeal, Superior 2d 359 joined J., dissenting, by Hoffman, (Packel, JJ.) We allocatur. granted con Appellant Spaulding, tends that his confession was the fruit an illegal arrest and was also of an product involuntary and *4 Fifth waiver his unintelligent Amendment right incrimination.1 self We reverse and against remand. 1 today appellant’s hold Because we confession in- extricably inadmissible, tainted and thus we appellant’s related not reach contention need that his waiver of his rights involuntary. Fifth Amendment
385
dis
uncontrovertibly
beyond
late date it is
At this
оf the United
prohib
that the Constitution
States
pute
officer has
arresting
its the arrest of a
unless the
person
a crime has been or is
to believe that
cause
probable
McCray
Illinois,
committed.
v.
386 U.S.
being
300,
Ker
California,
S. Ct. 1056
v.
U.S.
(1967);
23,
States,
v.
Henry
S. Ct. 1623
United
(1963);
v.
States,
It is also well settled that even hеarsay information
is sometimes sufficient
to establish probable cause. See
Draper
United States, 358 U.S.
Applying
Aguilar-Spinelli
here
standards
it is
clear
patently
informant’s
the sole basis
tip,
for appellant’s
insufficient
to establish prob
able cause.
came from
First,
tip
an unidentified in
who
no
formant,
supplied
indication that he had any
of the crime
personal knowledge
in
whatsoever. His
formation was completely conclusory with no underly
facts or circumstances
ing
bolster his
The
report.
caller
anonymous
merely told the police that
the sus
name was “Primo” and
pect’s
indicated where “Primo”
more. Thus the
lived—nothing
first
requirement
Agmlar-Spinelli—underlying
circumstances
supporting
informant’s
conclusion—was clearly absent here.4
police may make a
Since
warrantless arrest unless the
knowledge
justify
their
would
facts within
the issuance of a valid
Whitely Warden,
warrant,
(1971);
401 U.S.
Secondly, out “the as showing underlying circumstances record is devoid [any] informant himself was reason to believe that Agui- aspect person.” Thus the a credible second lar-Bpinelli likewise unfulfilled. test is *6 urges probable cause was
The that Commonwealth “anonymous telephone call because the established here reliability, significаnt im- inner indicia of contained by portant ar- were corroborated details which knowledge.” Apparently resting the Com- own officers’ contending inher- that the informant was monwealth “anonymous ently reliable he an citizen-in- since was identity formant” who was “too scared” to reveal his police. argues to the the Common- informant, Such typical is more reliable than “the How- stoolie”. wealth, conjec- engages in the Commonwealth here sheer ever, admittedly has no that the unknown as it evidence ture, “typical or was either a stoolie” a “citizen- informant absolutely no informant”. It thus has indication reliability. informant’s tip
Next the Commonwealth contends that the corroborated “Primo” because officers knew that gang was a member and that he lived near the scene robbery. certainly such information is However, indepеndent simply sufficient but corroboration, unsupported speculation grossest guilt by form of association. disingenuous argument by
A similar
the Common-
rejected
categorically
wealth was
this
Court Com-
supra.
Goslee,
There
monwealth
probable
argued
had
cause to
it
merely
reputation.
410,
on an individual’s
based
sation
Moreover,
(1969).
appellant perceptively
Gt.
as
89 S.
suggests
not be unrealistic or
“[i]t would
even
unreasonable
plentiful
such as the one at
casual rumors
issue here are
think
gang milieu,
way
Philadelphia
and are even a convenient
in the
satisfy
grudge.”
gang members to
a
for rival
because he
burglary
was a known
and lived
burglar
near the
scene
the crime. This Court held that such
information at best amounted to mere suspicion. We
there said that
sustain this conviction we would
“[t]o
be
forced
countenance a
proрosition
presence
a
plus
conviction is sufficient for
prior
arrest—a propo
sition we cannot
Commonwealth v.
accept.”
Goslee, su
234 A. 2d at
pra
851. See Commonwealth v. One
1958 Plymouth Sedan, 418 Pa.
Thus this record reveals unsub- anonymous, stantiated tip, knowledge suspect was gang and that he lived near the member, scene the robbery. This is clearly constitutionally insufficient to establish probable cause the arrest therefore illegal. Commonwealth v. 247 A. 2d Holton,
The next
to be
question
resolved is whether appel
*7
oral statement
lant’s
sowas
tainted
the
illegal arrest
toas
be inadmissible. The seminal case on this issue is
Sun v. United
371
Wong
83 S. Ct.
471, 488,
417
the
407,
where
Court announced
(1963),
Supreme
the
.
relevant
test
is: “. .
es
‘whether, granting
tablishment of the
the
primary illegality,
evidence to
objection
which instant
is made has been come at by
of that
or
exploitation
illegality
instead by means suf
to
distinguishable
be
ficiently
рurged
the primary
taint.’”
(Citation
See
omitted.)
Commonwealth v.
Pa.
A. 2d
106
Cephas,
500,
Common
(1972);
Pa.
Rowe,
wealth v.
282 A.
454,
2d 319 (1971).
The
Court also noted that
Supreme
the challenged
be
of the
evidence may
purged
primary taint only (1)
“
if
from ‘an
it results
intervening
act of
independent
”
Sun,
free
Wong
supra
will,’
486,
S. Ct. at 416,
if
connection
or
the
between the
arrest and the
“
has
‘become
evidence
so
(confession)
attenuated as to
”
(cita-
dissipate the taint.’
Id. at
2d cert. 384 U.S. denied, spe (1966), 86 Ct. S. the Third Circuit noted two major significance determining cific factors of the relationship illegal subsequent arrest and between confession:
“(a) illegal proximity initial custodial procurement act to and confession; “(b) the intervention of other circumstances subse- quent illegal provide to an un- arrest which a cause so illegality acquired related to that initial evi- may reasonably directly dence be not said have been thereby by, illegal derived tainted ar- from, rest.” Bishop,
This Commonwealth v. Court, A. cert. 661, 666, denied, (1967), subsequently explained Wong 88 Ct. S. way: Sun test this “[I]f the connection between the vague the confession is shown to be so or ten dissipate ‘sufficiently ‘as to uous taint’ or an act despite free will,’ confession is admissible, the ille gality By ‘sufficiently of the arrest. an act of free truly we mean that will,’ was the confession voluntary, any also but free element of coerciveness proof, due unlawful arrest. The burden upon (Footnote course, Commonwealth.” omit ted.) primary should also be noted
It that once the ille- gality—here arrest—is bur- established, the *8 on den is the Commonwealth to establish that the con- “by sufficiently has been come at fession means distin- guishable purged primary to be tаint” rather “by exploitation illegality.” of that than See United Wade, 388 U.S. States S. 239-40, 87 Ct. 1926, at Bishop, supra (1967); A. 2d at 666. statement was the above tests appellant’s Applying of and tainted by come at through exploitation clearly in the Superior arrest. As dissenters illegal arrest illegal noted “the between proximity Court close—within extremely and statement was appellant’s 293 A. one or Betrand at supra two hours.” Appeal, admittеd the case 2d at 361. The detective charge officers to ap- that he instructed the arresting un- was on the a where pellant place appellant street, other adult be in of a or company parent to likely on fact a him. was in arrested advise Appellant head- detective transported street Philadelphia immedi- As noted appellant quarters. previously room in a cell block locked in interrogation ately one and hours. A there alone two and left between and advised appellant detective then arrived from police interroga- the standard by reading his rights one-half hour appellant tion card. later, Approximately robbery. in the admitted his involvement there In circumstances where Avasnot break these a definite causal connection be- events, the chain arrest and confession subsequent tween illegal See Commonwealth v. supra did exist. obviously Bishop, A. 2d at 665. argues, however, The Commonwealth that advising “a so of his Miranda constituted rights initial evi- unrelated to that illegality acquired reasonably be said to have been may directly dence thereby tainted ar- from, by, illegal derived the Commonwealth that al- essence contends rest.” have been may illegal, the arrest advising appel- though rights his Miranda inde- “intervening lant of purged appellant’s act” al- subsequent which pendent and his rights of those confession from the waiver leged arrest. the mere However, perfune- taint
391 tory warnings in recital Miranda leading directly sufficient to break the events chain illegal from the arrest to the confession. Commonwealth v. Pa. A. see United ; 2d 876 Brown, 395, 1970), Kilgen, (5th Cir. States v. 431 F. 2d 627, (1971). grounds, F. Nu modified on other 2d illegal ipso that an merous courts have held any subsequently to exclude obtained sufficient facto, Kilgen, evidence as fruit. States su tainted United pra; 1965); ( 2d Beto, Collins v. 348 F. 829 5th Cir. (D.C. Gatlin F. 1963); (E.D. Supp. Ricci, United States v. 313 F. 1970); People App. Pa. Weaver, 35 Mich. N.W. 2d 572 it is Thus difficult to understand warnings dissipate how the recital Miranda can taint. specifically
This Court
stated
Commonwealth v.
Bishop, supra
Such a as that conclusion, the Common- clearly lead to would the anomalous wealth, im- permissible illegally result that the could suspects knowing merely reciting at will Miran- warnings suspects they purge any da to thosе could subsequent illegal- of the taint of confessions the initial ity. Fifth As the Circuit stated: . . “Such a . [result] practically prophylactic eviscerate the would effect of exclusionary showing rule. if a mere Moreover, during period that a confession unlawful detention Voluntary’ were sufficient to establish its admissi- Wong empty promise, bility, Sun would be for the has long confessions ‘involuntary’ inadmissibility Beto, Collins v. at 829. supra been fully recognized.” deter the Miranda warning, intended to exploit Surely to thwart now be perverted cannot ive police practices, ex behind deterrent important purpose equally Sun. Wong rule of clusionary *10 meet its burden failed to having The Commonwealth of confession was purged of that proving appellant’s confes- of the initial illegal arrest, appellant’s the taint inadmissible. sion was the and reversed, of Court is
The order the Superior jurisdiction to the court original matter remanded consistent this opinion. with proceedings Eagen con- and Mr. Justice Mr. Chief Justice Jones curred in the result. by Pomeroy: Opinion
Concurring
Mr.
Justice
of Miranda rights
that
waiver
holding
appellant’s
connection
his illegal
break the causal
between
did not
the Court
its
confession,
by
and a subsequent
arrest
“courts
joined
case
to have
those
appears
deсision
this
held that an
is
illegal arrest,
ipso facto,
have
[which]
exclude
obtained evi
any subsequently
to
sufficient
the
fruit.”
indicates
Although
opinion
dence as tainted
to
may
be able
confes
prove
the
taint of the initial
the
pros
purged
sion
in such a task
seem to be
would
succeeding
pects
Miranda
rele-
than real.1 With
illusory
warnings
more
previous
purports
to
our
decision in Com
follow
The Court
175, 183,
Bishop,
A. 2d
cert.
monwealth
(1967),
denied,
“[I]f
we held:
the connection
where
vague
the confession is shown to be so
or
the arrest
between
‘sufficiently
dissipate
taint’ or
free
the
act of
‘as to
tenuous
admissible,
despite
illegality
will’,
the
is
confession
will,’
‘sufficiently
By
free
an act of
we mean that not
arrest.
any
truly voluntary, hut also free of
element of
confession
proof,
unlawful
arrest. The burden of
to
due
coerciveness
omitted.)
(Footnоte
An
upon
exam-
the Commonwealth.”
course
gated to
status of a “mere perfunctory recital”,
it
is not
however,
unlikely
henceforth the only
manner
acceptable
the taint will
purging
be to release
his
suspect following
illegal arrest.2
If this is
indeed
effect of the
it
decision,
pays
too little
to
attention
society’s justifiable
interest
confessions.
utilizing voluntary
On the other hand, how
ever,
opposite apрroach would be me
ob
equally
jectionable;
is,
admit
statement
any
which
given
following
so
as it is
long
given
freely
attended
all
voluntarily,
warni
required
ngs.3 This
be to
would
overlook the crucial objective
Bishop
ination
facts in
makes it clear that
the burden of
showing dissipation of the taint was not intended to be an insur-
mountable one.
such
That
a release had occurred was the determinative
favoring admissibiliiy
Wong
factor
оf the confession of
Sun in
Wong
States,
Sun v. United
L.
Ed.
2d
(5th
1967).
See also Thomas v. United
377 F.
approach appears
adopted
following
*11
This
to have been
in the
Close,
(4th
1965),
United
decisions:
States v.
349
841
F. 2d
Cir.
denied,
(1966)
Beto,
;
(5th
cert.
Applying
ALI’s tentative
draft
Model
Code
the facts of the instant
while it is
case,
clear that appellant’s confession it
voluntary,
clear that the
on
equally
police
acted
uncorroborat
ed
of an
tip
unidentified informant
reliability
whose
was never
established.
light
countless deci
sions, both state and
federal,
interpreting
require
ments of
12 L.
Aguilar
Texas, 378 U.S.
Ed. 2d
(1964)
Spinelli
States,
It is on the T basis this concur in approach the decision of the Court. observe, however, given facts, 6 I the same save for the degree probable requirements (e.g., of deviation from some, informant shown to be reliable and the had
though sufficient, underlying Aguilar circumstances to meet the Bpinelli standard) contrary result would be indicated under the ADI test. Appellant.
Commonwealth v. Brown,