*1 Aрpellant. Commonwealth v. Hall, J., Before O. Jones, 1972. Argued November 16, Nix and Man- Pomeroy, O’Brien, Roberts, Eagen, JJ. DERINO,
reargu- April ment refused 1973.
John W. Assistant Paclcel, Mi- Defender, with him chael L. and Jonathan Levy Miller, Assistant Defend- and Vincent J. ers, Ziccardi, appellant. Defender, Milton M. Assistant Stein, District with Attorney, him James D. Crawford, Deputy Attorney, District Richard A. First Assistant Sprague, District Attorney, and Arlen Specter, District for Common- Attorney, wealth, appellee.
Edwin D. submitted a brief for amicus curiae. Wolf Opinion by Mr. Justice 16, 1973: March Roberts, Appellant William Hall was in tried nonjury Common Pleas Court of Philadelphia and convicted possession and use of narcotic Post-trial mo- drugs. tiоns were denied and appellant was sentenced to term of imprisonment not less nor than forty days more than twenty-three months. The Superior Court affirmed the judgment of sentence, Commonwealth Hall, Superior Ct. 760, A. 2d (1971), and we granted allocatur. For reasons which follow, we remand for another suppression hearing.
Prior to trial appellant made a motion to timely certain suppress evidence in accordance with Pa. R. Crim. P. After an 323(b). mo evidentiary hearing the tion to was denied. It suppress is the result scope and of that suppression which forms the hearing primary basis for appeal.1 specified apartment containing The search warrant an narcotic drugs, appellant occupant. but did not name an Because of our disposition appellant’s we need not reach related contention that give police did not the search warrant authorization to searсh apartment. he found
him when was validity suppression hearing upon
The focused of a search warrant issued and executed June 14, 1970, 1970. war- at 1:00 June The execution of the A.M., police uncovering quantity resulted a small rant drugs appellant’s possession. of narcotic The Com- readily possession these monwealth admits that the indispensable appellant’s drugs obtaining con- was applying In officer- viction. for the warrant the alleged specified apartment affiant narcotic aat drugs significant quantities being The sold. were according the affidavit, source information, identity whose informant, McCray v. S. disclosed. See Illinois, (1967); Crawley, Ct. Pa. Commonwеalth v. Superior A. Ct.
To establish the the information re *3 Spinelli ceived from the unnamed v. United informer, (1969); Aguilar U.S. S. Ct. (1964), 84 Ct. 1509 the affidavit Texas, U.S. S. alleged past years police in that the re two the had information from in five ceived that informant at least resulting pend cases, three convictions and two still ing. Based the assertions on contained the affidavit, inсluding apparent the establishment of the informant’s magistrate controlling reliability, the determined that probable been cause standards had satisfied and issued Appellant language the warrant. concedes that the on probable the of the warrant recites cause. face During police officer-affi cross-examination of the suppression hearing ant at the defense counsel asked previously those for the names of individuals arrested of information received as from the unnamed result purpose question informants.2 The of the ex was to support po- of the The warrant аffidavit also stated that “drug entering apart- users’’ observed several lice surveillance building specified police in the warrant. The ment officer-affiant in the affidavit facts recited plore disavowed Counsel expressly the warrant. supporting the inform any identity intention of ascertaining anonymi to further informant’s ant, and, protect in camera.3 the cross-examination offered to conduct ty, was sus question objection The Commonwealth’s to the found suppression judge ultimately tained and the It admissible. evidence seized to the pursuant cross- permit this hearing judge is the refusal of determine the seeking to examination, error. alleged unnamed informant, the veracity The threshold is whether question in an affidavit facts cause recited establishing probable be and examined supporting challenged warrant can be hearing. at a such facts Indeed, In so Commonwealth challenged. A. 2d 441 Court sustained a chаl- this (1970), to a when it later established
lenge
search warrant
ma-
officer-affiant
falsified a
knowingly
terial statement
in the affidavit
the war-
supporting
In
rant.
so
noted: “To
holding
Court, pertinently
permit
rule otherwise would
case to
every
exaggerate
expand
magis-
or to
on the facts
to the
given
trate
mеrely
purpose
meeting
cause
thus
a detached and ob-
requirement,
precluding
determination.”
jective
Id.
205 recogn and federal courts have As numerous state challenge right the veraci defendant to of a ized,4 premised ty recited a is not on of faсts warrant assumption perjury by enforcement officials: law of ‘outright per “Although repeatedly stated we have agents jury by government a common is not occurrence/ possibility that, ... no means foreclose we hearing appropriate held a be circumstances, allegations verаcity affi in an to establish the of sworn adequate v. United States on its face.” davit which is (citation (2d 1967) 848 Cir. 383 F. 2d Gillette, 843, omitted). challenge right re to the truthfulness of
Bather,
of
in a
from the command
citals
follows
magistrate
Aguilar-Spinelli that the
make
“detached
a
objective
determination”
cause.
Com
D’Angelo, suprа
v.
263
monwealth
at
A. 2d at 444.
338,
magistrate
If
aver
is
and reviews falsified
furnished,
effectively “[precluded
making]
he
from
is
ments,
objective
New
detached and
determination.” Id.5 As the
4
Yeager,
See, e.g.,
(3d
ex
v.
United States
rel. Laws
448 F. 2d 74
Freeman,
1971) ;
(2d
1966),
Cir.
United States
358
2d
Cir.
denied,
(1966) ;
S. Ct. 168
United States v.
cert.
King
1965) ;
Bowling,
(6th
F. 2d
Cir.
v. United
1960) ;
Pearce,
(4th
United States v.
F. 2d
The Commonwealth the here test attеmpt but contends point,6 did appellant fail because veracity of warrant must of part which prior hearing precisely not to the specify po The Commonwealth’s warrant was inaccurate. its is that while appellant reduced to essence, sition, facts right veracity have the may first not dо so without recited he warrant, of those facts. potential falsity showing interpre- such an restrictive reject unduly We must supra. Such tation of Commonwealth teaching emasculate the virtually interpretation would ditionally it to allow it has been obsrved that would be anomalous suppres- lack at the a defendant to demonstrate a cause apparent prob- hearing, not him to establish that the sion but allow Kipper- originated See, e.g., from falsified averments. able cause Sup- man, a Ground for Search Warrant Affidavits as Inaccurate (1971) ; Maseolo, Impeach- Evidence, pressing L. 84 Harv. Rev. Credibility Piercing ing for Search of Affidavits Warrants: (1970) ; Comment, Presumption Validity, The Conn. B.J. Outwardly It’s If Search Affidavit: What Sufficient Warrant (1971) ; Note, Testing False?, Factual L. Rev. 19 U.C.L.A. Note, (1967) ; Warrant, 67 Colum. L. Rev. 1529 Basis for Search People Alfinito, 51 Cor- Search and Seizure: Procedure: Criminal Right Note, L.Q. (1966) Criminal Law—Defendant’s Case nell Face, Fordham L. Rev. on Its Valid to Controvert Warrant occupied quotes brief with the Commonwealth’s Much of allowing challenges jurisdictions to the war- from issuance. after their rants D’Angelo supporting may be that facts a warrant misleading.
shown to be false or
suppression hearing
pivotal
Here the
issue at
the information
аttributed to
unnamed informer.
If the informer
was reliable,
*6
probable
search
If the
warrant was issued with
cause.
proven
reliability,
informant was
to be without
the war
improperly
A
rant
issued.7 mere assertion
the
was
to
magistrate
the informer
“reliable”
that
does
satisfy
Aguilar-Spinelli
the
test. See Commonwealth
(1972);
v.
447 Pa.
290 A.
2d
Common
White,
331,
(1971);
wealth v.
446 Pa.
However, convic- rеsulting from an tions” unnamed earlier informant’s impossible information an assertion that is is for a de- explore prior suppression hearing, fendant to to the clearly proper subject inquiry a there. Moreover, discovery even under Pa. R. Crim. P. 310 would not gain either the desired information or the defendant oрportunity previous assertion re- liability by affiant. Nor is it information within argues The Commonwealth also that what it terms the inde- pendent police tip initial corroboration from the informant satisfy might Aguilar-SpinelU requirements probable cause. See supra. only n.2, In fact that claimed corroboration revealed “drug entering building containing apart- users” were several Certainly information would not ments. establish many apartments building. one cause search Com- Thornton, (D.C. pare States v. 454 F. 2d United holding). (alternate Compare of the defendant. knowledge the personal A. Turra, Pa. 2d Commonwealth effective method to only existing Indeed, a de to allow of the assertion is veracity ly probe offi of the police cross-examination meaningful fendant former As hearing. the suppression cer-affiant Burger noted poignantly Chief Justice, now Judge, “The traditional safeguards context: another system leave legal Anglо-American ” Bush cross-examination.’ to be tested witness (D.C. 1967). United States, suppres- at the be concluded that appellant It must opportunity been afforded the hearing sion safeguard” of cross-examina- “the traditional through of the recitals the war- to test the truthfulness tion, reliability. informant’s previous alleging rаnt in con- hearing for a remand new We *7 de- If the court opinion. formity with is be suppressed, evidence to challenged termines the de- the court If, however, granted. then a new trial is judg- be suppressed, is not to termines the evidence file a time- appellant may remains and ment of sentence if desires. determination, he so from that ly appeal by Nex : Concurring Opinion Mr. Justice v. Unit Court in Weeks Supreme The United States v. 367 Mapp 383 and (1914) Ohio, ed 232 U.S. States, the exclusion from federal required 643 (1961) U.S. of evidence seized vio respectively, and state courts, Court Fourth Amendment.1 While that lation of the 1 Constitution, Amendment IV United Stаtes right people persons, houses, in their to be secure “Tbe against seizures, effects, papers, unreasonable searches and and upon prob- violated, issue, no shall but and not be Warrants shall particularly by affirmation, supported cause, or and de- Oath able persons searсhed, things scribing place and the or to to be be seized.” allegations necessary
has great discussed in detail it withheld expressly to establish cause2 has a may if extent defendant any any decision as to what be the face the affidavit permitted proceed beyond to The de allegations.3 of those challenge accuracy the face challenge cision allow any beyond whether to prob myriad perplexing of the affidavit a presents which allowed; how far be inquiry should lems, e.g., doc inaccuracies should justify imposition trine of exclusion.4 in Common concern is that this decision
My
Court’s
wealth v.
263 A.
(1970)
Pa.
2d
and the
in this
be under
majority opinion
case should
stood as
limited
being
to situations where
deliberate misstatements
official aff
alleges
Spinelli
Aguilar
(1969)
States,
;
United
v.
See
Where the is a and affiant official perjury committed that official or and by with his knowledge I consent provide a basis securing am satisfied govern- that this is the of offensive type mental action that the Fourth directed Amendment was against and the doctrine exclusionary designed to deter.
It must be remembered that misstatement need every not be a result of and perjury just could as result likely from In negligence. inadvertence or instаnce the either are problems unique. differ not from the de- They only liberate lie but between themselves and be re- solved factual only specific when issue is raised.
In the decision in this conclusion, my judgment, case and should not supra, suggest D’Angelo, we have affirmed inquiry unlimited into the underlying or that validity any the affidavit would inaccuracy necessarily justify exclusion evidence seized pur- suant thereto. Pomeroy
Mr. Chief Justice Jones Mr. Justice join concurring opinion. by Perjury an informant where are unaware of the falsehood and had a reasonable basis to believe the information re- entirely presents my judgment
ceived different situation and in by should not be controlled this decision or the decision in Common- A. wealth perjury necessary concerned Where a fact not to establish great cause on the face of the I affidavit would find difficulty concluding appropriateness exclusionary present distinctly Such a case would doctrine. different considera- being not be considered tions and should answered this de- cision.