*1 the additional contentions upon ment for motion trial. new join dissenting JJ., Hoffman Cercone, opinion. Appellant.
Commonwealth v. Conner, P. Wat- Before Wright, J., March Argued 9, 1970. Spaulding, Hoffman, kins, Montgomery, Jacobs, JJ. Cercone, appellant. for Jr., Krafsig, J.
John Attorney, District Assistant Foerster, T. Jerome him District Zimmerman, Attorney, S. LeRoy appellee. Commonwealth, June 11, 1970:
Opinion Curiam, Per affirmed. of sentence Judgment Dissenting Opinion J.: Hoffman, possession Appellant was convicted unlawful Act, Firearms firearm in violation of the Uniform *2 18 amended, of L. Act June P. 872, §628, was appellant P.S. The evidence which upon §4628. officer of a police convicted consisted the testimony car in appellant’s found an unlicensed firearm who into introduction the firearm evidence. the for of both moved Appellant firearm firearm because he claimed the Fol- Fourth Amendment. in violation was seized mo- on appellant’s claim, a suppression hearing lowing ap- From sentence this judgment tion denied. was followed.1 peal not arrested for a criminal offense was
Appellant from relevant across the street where his car was here arrested police appellant The who parked. to search car. When permission appellant’s then asked retained in cus- was was permission refused, police officer went an alderman to while a tody a search warrant.2 secure cause section contained the warrant’s facts and circumstances
following: tending “[T]he belief that to establish officer’s] [the [fire- and in the at [appellant’s] situated vehicle arm is] on or as follows: That about the alia) (inter are 196 that witness have re- day [sic] are carried weapons by subject the ve- ported certain of a type].” hicle, [vehicle Commonwealth v. with In accordance 209 Crawley, A. 2d 885 223 (1966), Ct. 70, suppres- Pa. Superior into evidence not only the probable admitted court sion the sworn but also testimony given section cause reported 1 Dauphin opinion at court lower appellant’s custody. complaint about retention made No pretext as a not made Apparently arrest search. Harris, (6 1963). 2d Compare States F. Cir. the war- issued officer to who rant. suppression hearing.
The alderman testified at to him and said officer came He said gun in that there that “he information was a had following questions from reliable car sources.” appear during testimony. of his the course answers you you “Q. or not he told do recall whether Now, Q. A. No. who the reliable sources were? when Well, you say you? you or I recall he didn’t A. don’t tell no, you Q. don’t think I asked him. Do recall whether you anything not he told about the sources, reliable thought they why he reli- is, except go say A. he he able? didn’t into detail, No, gun had reliable information that in the there was a car.” *3 officer also testified at the
hearing. testimony His was somewhat more detailed than the He alderman’s. said that witnesses had told appellant. ap- him Allegedly, had talked with pellant had admitted to them that he carried a firearm in his car. The witnesses in had, seen the fact, firearm. officer he told all of said, this to the alderman. In prior he told the alderman addition, “that there was a having [appellant’s] of carried firearms.” He gave specifics prior history, no this however. presented question to this Court is whether the finding sufficient to above probable sustain a of so that lawfully
cause the warrant could be issued. guarantees Amendment
The Fourth to citizens a privacy against right governmental secure inter- except upon showing probable a ference cause. probable that assure cause will lightly order not be required judged that have it by we be satisfied, magistrate” detached “a neutral would decide. protection Amendment’s] Fourth “[The in consists re- 88 inference
quiring [of cause] [the] detached instead magistrate drawn a neutral and by often com the officer in the being judged by engaged out crime.” Johnson petitive enterprise ferreting v. United Ct. 367 (1948). U.S. S. 14, 10, See United States v. 52 S. Ct. U.S. Lefkowitz, That whether he be intervening party, is the magistrate, commissioner, alderman, judge, protection against citizens best unwarranted and un reasonable intrusions.
When an officer
to an alderman to
gone
has
secure
as the officer in
case
warrant,
did,
suppres
sion
in
judge’s
ours
not
task,
turn,
usually very
“In
difficult.
most
instances,
reviewing
issuance
of a
we need
ascertain
warrant,
only
what facts were
discovered
and sworn to before
whether
[alderman],
should have been
given
credence,
the credible
facts
enough
satisfy
[requirement
of “probable
Commonwealth v.
216 Pa.
Tirpak,
cause”].”
Supe
rior Ct.
A problem arises, however, the police of “[w]hen ficer has discovered little or on nothing his own but *4 upon information relying supplied by an inform .” Commonwealth ant. . . v. Tirpak, supra at 318. problem arises because the informant is not before to his subject information to inquiry to demeanor review. Hence, police officer must for the missing informant compensate by supplying the substantially what he alderman would have had, present. had informant been See v. Aguilar Texas, Ct. 84 S. (1964). U.S. 1509, in in court’s and ours task, turn, the alderman then becomes reviewing following. We ascertain facts “(1) by were discovered police informant. We decide whether the officer’s (2) the belief the informant testimony supports (3) credible. We then decide the credible facts whether (both the and the police officer’s) informant’s were to enough satisfy [requirement “probable Commonwealth v. Tirpak, supra at 318. See cause”].” Jones v. United 362 U.S. Ct. 257, 80 S. protect order to Fourth Amendment to must right we be sure that privacy, these decisions are (or made the permissible absence of a warrant could be made) neutral by of party. conclusions ficer’s without their bases are underlying insufficient. discovered
Here,
facts
informants were
had a firearm in
his car.
had
They
they said.
to be
seen
were
their
it,
believed,
information was obtained
and was
reliably
sufficient
constitute
cause. Spinelli v. United States,
The question is, however, whether
the informants
and what
to be believed
factors
should the aider-
man
considered
on their
passing
have
credibility.
respect
With
so-called
one meth
informers,
their
od of
is to
supporting
credibility
their
disclose
“what kind of
informing,
i.e.,
information
had received in the
past from the
officer]
[the
the information had
whether
led informant,
arrests,
how
many,
and if
information
so,
had
if
so, how
convictions,
many.”
led to
Common
at 319. With
Tirpak, supra
wealth
to these
who are often
informants,
motivated
kinds
by self-
method
supporting
interest,
credibility
to
*5
U.S. Draper
Cf.
preferred.
With validity. equal other methods have and chance witnesses, to be evidence may the contact The circumstances relate to the particularly credibility, support under of the the conditions contact, time and place appear- it is the made, demeanor, informant’s which If conduct. the officer relates these ance, or to the alderman magistrate, party issuing things then judge can whether the circumstances warrant make falsehood Es- unlikely. other considerations is is foundation sentially necessary what some tested informant’s the officer’s accepting hearsay.3 information is this, may be evi- self-incriminatory, too, it dence since that one credibility, unlikely would incriminate himself. Commonwealth v. Somer- falsely 215 Pa. Ct. 257 A. shoe, Superior 2d Another method supporting informant’s credi- if officer can bility corroborate his informa- tion to some extent. Thus, police officer can tell or magistrate alderman facts he has dis- which make him covered that a suspect crime has been committed and that evidence thereof is particular The alderman magistrate can then place. judge the officer’s though testimony, insufficient by constitute itself to leads to cause, conclusions to from those drawn similar informant’s informa- tion.4 none of the however,
Here, above methods was sat- employed isfactorily the informants’ eredi- preferable course, bring would it Of such informers magistrate, the alderman or before if themselves convenient. Cer cases, direct tainly, such in borderline could be decisive. not, course, limit would I Commonwealth to the meth above. outlined I have ods
bility. supportive given by only the alderman Ms statement “that was prior having history there was carried firearms.” What that not told. was, *6 Why likely made it informants telling the alderman could not truth, deter- mine. no
Because was offered with credibility, the informants’ their information could not be used to the issuance of the search war- rant. To do otherwise would subvert the Fourth protection privacy. Amendment afforded our It would permit the issuance of warrants on the word of name- unknown informers alone. less, order not to ab- responsibility, dicate our we must have some basis telling telling informer is the truth. Some suggested consistent with the methods opinion would be the kind which would afford protection. citizens constitutional judgment I would vacate of sentence. joins dissenting opinion. in this J.,
Cercone, Appellant. Commonwealth Woolcutt, April 1970. Before Wright, Submitted P. J., Montgomery, Jacobs, Watkins, Hoffman, Spaulding, JJ. Cercone,