COMMONWEALTH оf Pennsylvania, Appellant, v. George Howard CLARK.
Superior Court of Pennsylvania.
Filed Jan. 6, 1992.
Reargument Denied March 12, 1992.
602 A.2d 1323
Submitted November 21, 1991.
Douglas L. Smith, Media, for appellee.
Before CAVANAUGH, POPOVICH, and HOFFMAN, JJ.
HOFFMAN, Judge:
This is an appeal by the Commonwealth from an order dated April 10, 1991 granting appellee‘s omnibus pretrial motion. On appeal, the Commonwеalth contends that the suppression court erred by suppressing the evidence seized pursuant to a search warrant. For the following reasons, we affirm the suppression order.
Appellee filed an omnibus pretrial motion seeking, inter alia, to suppress the evidence seized pursuant to the search warrant. A hearing was held on this motion on November 16, 1990. At the hearing, appellee produced a receipt from an auto service station for work done for George Clаrk, appellee herein, on a 1977 Pontiac on June 12, 1990. The receipt indicated that the car was to be picked up on June 16 and that, in fact, payment in full was made on June 16 when the car was picked up by appellee‘s father. This evidence contradicts the statement in the affidavit supporting the search warrant that the CI observed appellee forty-eight hours prior to the execution of the search warrant. Moreover, appellee and appellee‘s father both testified that appellee did not drive the car at all during the first two weeks of June, again in contradiction to the CI‘s statements in the affidavit. The suppression court granted appellee‘s motion
The Commonwealth contends that the court improperly suppressed the evidence seized during the execution of the search warrant. When the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of the defendant‘s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole that remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983) (plurality opinion) (citing Commonwealth v. Goodwin, 460 Pa. 516, 522-23, 333 A.2d 892, 895 (1975)).
Both the United States Constitution and the Pennsylvania Constitution prohibit unreasonable searches and seizures. See
In 1985, our Supreme Court followed the United States Supreme Court in adopting a totality-of-the-circumstances analysis to determine if probable cause exists to support a search warrant. In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the Pennsylvania Supreme Court stated:
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.
Gray, 509 Pa. at 484, 503 A.2d at 925 (citations omitted). However, if a search warrant is based on an affidavit containing deliberate or knowing misstatements of material fact, the search warrant is invalid. See Commonwealth v. Bonasorte, 337 Pa.Super. 332, 347, 486 A.2d 1361, 1369 (1984) (misstatement of police officer); see also Commonwealth v. D‘Angelo, 437 Pa. 331, 337, 263 A.2d 441, 444 (1970) (misstatement of police officer). Cf. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 165, 434 A.2d 181, 182 (1981) (court recognized that material misstatements by confidential informant invalidate search warrant).5
“A material fact is one without which probable cause to search would not exist.” Commonwealth v. Tucker, 252 Pa.Super. 594, 599, 384 A.2d 938, 941 (1978) (citation omitted). An affidavit underlying a search warrant must set forth a concrete time frame in which the confidential informant observed the alleged criminаl activity forming the basis for his tip. Cf. Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 890-91 (1991) (search warrant was facially invalid because it did not reference time that informant observed activity).
In the instant case, the affidavit supporting the search warrant stated
Within the past two weeks the affiant listed on the face sheet of this warrant did speak with the confidential
reliable informant also listed on the face sheet of this warrant on several occasions.... The CI stated that he has observed George Clark deliver сocaine on the east side of the city and in the Lamokin Village housing project on several occasions.... The CI stated that Clark delivers the cocaine in a 1970‘s Pontiac Ventura Dark Gray in color with a burgundy rag top.... The CI statеd that he has over heard [sic] Clark take orders from other individuals for cocaine, when Clark has stated that he would go and get the caine [sic]. The CI has followed Clark to 76 West 8th Street where Clark resides. He would enter the house and then return to his vehicle within a couple of minutes with the controlled substance. The CI saw the cocaine in George Clarks [sic] hands. The CI saw this in the past 48 hrs.
Commonwealth Exhibit 1 (emphasis added). Thus, the affidavit references concrete time frames of two weеks and forty-eight hours. However, the time references are not factually correct.
The instant affidavit was sworn on June 15, 1990. At the suppression hearing, appellee introduced a receipt from McCauls Auto Service, which estаblished that appellee‘s car was in the shop for repairs from June 12-16, 1990. Furthermore, appellee and his father both testified that on the Memorial Day weekend about two weeks before the instant search warrant was issued, аppellee was stopped twice while driving to work for driving with a suspended license. After the second stop, appellee‘s father took the keys away from him, and removed the tags and license plate from the car. Both parties testified that appellee did not drive the car at all during the first two weeks of June. See N.T., November 16, 1990, at 14-17, 25, 31-32. Because of this evidence and testimony, it is apparent that the information provided by the CI with respect to the time frame was inaccurate, and a necessary element of the search warrant affidavit is missing. Moreover, because it
Nonetheless, appellant argues that Pennsylvania law does not permit an attack on the veracity of the confidential informant, because of the good faith exception to the exclusionary rule6 applied by this court in Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981).7 However, appellant‘s reliance on Bradshaw is misplaced. Our Supreme Court has recently held that Artiсle I, Section 8 of the Pennsylvania Constitution does not incorporate a good faith exception to the exclusionary rule. Commonwealth v. Edmunds, 526 Pa. 374, 383, 586 A.2d 887, 891-92 (1991). The court carefully examined the principles underlying the exclusionary rule, as well as the history of Article I, Section 8, and concluded that the rule‘s purpose was much broader than the analogous federal provision.
Justice Cappy, writing for the majority, noted that while the United States Supreme Court, in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), reh‘g denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), was able to find that a goоd faith exception would not deviate from the Fourth Amendment‘s purpose to deter
the exclusionary rule in Pennsylvania has cоnsistently served to bolster the twin aims of Article I, Section 8; towit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause. [Commonwealth v.] Melilli, [521 Pa. 405, 555 A.2d 1254 (1983)]. As this Court explained in Commonwealth v. Miller:
The linch-pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause. Commonwealth v. Chandler [505 Pa. 113, 477 A.2d 851], supra. It is designed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates from dictatorial and tyrannical rulе by the state, and preserves the concept of democracy that assures the freedom of its citizens. This concept is second to none in its importance in delineating the dignity of the individual living in a free society.
Edmunds, supra., 526 Pa. at 398, 586 A.2d at 899 (citing Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191-92 (1986)). In light of this history and purpose, the court concluded that to adopt a good faith exception to the exclusionary rule would “virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvаnia Constitution over the past 200 years.” Edmunds, supra, 526 Pa. at 399, 586 A.2d at 899. Consequently, Edmunds requires us to suppress the evidence seized under the instant invalid search warrant, notwithstanding the good faith with which the officer may have relied on the CI‘s information.8 Accordingly, we affirm the order of the suppression court.
Order affirmed.
CAVANAUGH, J., files a concurring Opinion.
POPOVICH, J., concurs in the result.
CAVANAUGH, Judge, concurring:
I join with the majority opinion since I аgree with Judge Prescott of the suppression court that as required by law, the police failed to undertake an independent investigation after receiving the statement from the confidential informant.