Commonwealth v. Milliken

Appellant. v. Milliken, May 22,1972. Before C. Submitted J., Jones, Eagen, Nix Roberts, Pomeroy, JJ. O’Brien, Manderino, Arthur K. Bits, Public for Defender, appellant. Marion E. Attorney, District MacIntyre, Deputy and B. Com- Zimmerman, District LeBoy Attorney, monwealth, appellee.

Opinion Me. Justice 1973: January 30, Roberts, Milliken Thomas was tried Appellant Eugene murder. Post-trial and convicted of first jury degree motions were denied and sentenced appellant was imprisonment. appeal appellant life On this direct is challenges the of a search warrant constitutionality sued on contends July 22, further 1968,1 We failed to establish a delicti. corpus comports find that the issuance of the search warrant supports with constitutional standards and the record of a delicti. We affirm. finding corpus On Detective of July 22, Barbush, member submitted the af- Harrisburg police force, following fidavit to the who made a ultimately finding of cause and issued search warrant: “That 9th about of an informant day July, 1968, namely Ricker, Allen Lee of 96 North years age, Road, Camp Hill, County, John’s Cumberland St., 1 Acting pursuant police to the search discovered piece jewelry belonging cards and a certain identification apartment. appellant’s deceased items above-described did see the [the Pennsylvania, aforemen- at the alleged dead person’s identification] Eu- Thomas of one the possession tioned while place apartment, the said occupant gene Milliken, Ken- Detective given me, information has been I be true believe to neth J. E. and which Barbush, property are to be the alleged correct. These items In addition female individual.” the unidentified in- informed the under oath had Allen Mr. Ricker, dividual named warrant, al- person body led the previously by appellant. murdered legedly wheth- question raises the troublesome Appellant sup- the affiant testimony by may validly er sworn oral affidavit which itself does plement written meet the constitutional standards announced re- v. 84 1509 (1964), 378 U.S. S. Ct. and Texas, 108, in v. United 393 89 S. Spinelli States, 410, fined U.S. con- Ct. 584 contends that it was (1969). Appellant con- for the stitutionally impermissible sider the oral oath given under in that He further determining probable argues cause. absent the sworn oral did testimony, before him sufficient information from which have he make a finding could informant explicitly required reliable, finding by Aguilar Spinelli.

This has recognized Court the same standards for cause for a judging probable search are for an applicable determining probable cause to make v. arrest. Commonwealth 448 Pa. Garvin, 263, 258, Spinelli 293 A. 36 v. 33, (1972); United States, 89 n.5, 393 U.S. S. Ct. 410, 584, n.5 (1969). in “probable We further held Garvin that cause exists if the facts circumstances which are within the officer at knowledge time . arrest . . caution man of reasonable are sufficient to warrant crime.” has committed suspect the belief that tbe 448 Pa. at 293 A. 2d at 36. 262, has belief the suspect

When the officer’s informer’s an fruits or evidence of a crime is based upon knowledge rather than the officer’s “tip” upon personal in two types the officer must have observation, First, established. formation before cause is un “tip” is not an merely order to assure that the underlying the officer must know supported rumor, from informer concluded that circumstances which the possessed the fruits or evidence a crime. suspect “tip” order reduce the that a Second, possibility meeting merely first standard is well-constructed reasonable officer must have some basis fabrication, the source of the was reliable. concluding “tip” Spinelli v. United 393 U.S. S. Ct. States, 410, 415-16, 378 U.S. 588-90 (1969) 584, Texas, 108, 84 S. Ct. (1964); 114-15, 446 Pa. 285 A. 2d 65, 70, Matthews, argument that a proceeding culminating issuance of a search warrant must have all the support- information reduced to writing bottomed inherent difficulty reviewing challenged unrecorded oral ex parte testimony. It is of well- course too recognized that of time” causes “passage inevitably “memories . . . fade.” Dickey 398 Florida, [to] 90 S. Ct. (Justice Brennan concurring). Without a substantially record complete made with the contemporaneously issuance of the war- rant, subsequent review of the partially unwritten pro- ceeding may become tainted by possible additions of relevant information initially omitted but later sup- plied by hindsight.

Indeed this very problem demonstrated here. A crucial the question suppression hearing at was wheth- iner informer the of the determining reliability the relied on the sworn oral testimony affiant. At months after held several hearing, issuance of the search Detective Barbush warrant, testimony initially unable to recall oral any giving whatsoever. The acknowledging while magistrate, existence of the oral admitted his sworn testimony, memory was dimmed proceeding fact prefera- was “some time It been far would have ago.” had been ble before the proceedings or been other- transcribed, had sworn oral testimony reduced submitted wise or had the writing, for supplemental written and written affidavits his consideration.

Despite the obvious all desirability having information the magistrate before in are writing, we not persuaded affiant’s sworn oral may supplement his written affidavit and together the constitutional basis supply issuance of Appellant search warrant. has been unable to any cite authority support his ex position indeed the isting case law is contrary. See, e.g., Boyer 455 F. Arizona, 2d Cir. Miller (9th 1972); Sigler, 353 F. 2d 424 Cir. (8th Sparks United 1965); States, 90 F. 2d 61 Cir. (6th 1937) Commonwealth v. Craw 209 Pa. ley, Superior Ct. 885 (1966), 432 Pa. 247 A. aff’d, 2d 226 In absence of constitutional any or decisional au thority rule procedural impermissible making procedure here employed, appellant’s claim for relief on this asserted must be ground- rejected. so doing express we nevertheless our preference for reducing writing some acceptable manner sworn oral testi mony support offered of the issuance of the search warrant.

315 supervisory in exercise of our therefore, We shall proce appropriate of Court2 rule formulate powers, made record written of a requirements dural warr of search issuance with contemporaneously constitutional not one of issue is Because this ants.3 and wholly prospective be the rule will proportions, the case at bar. applicable thus not cor moment to the four for a ourselves Confining it was manifest that it is affidavit, ners of written eviden an with provide insufficient conclude he could properly from basis tiary from originated information given Supreme United States Agmlar reliable source. be “the must made it clear quite Court . of the circumstances underlying informed of . . some that the from officer concluded which the [informants’] ” 84 ‘reliable.’ Id. at S. information . . . . . . [was] infor forth only Here affidavit sets Ct. at 1514. information other by any unexplicated mer’s name, meet be said to cannot by itself, This, the affidavit. and forth in Spinelli set the constitutional standards statement officer’s sworn If a Aguilar.4 10(c) V, Pennsylvania, also Art. Section see Constitution July 819, §3, P.S. §2086. P. L. the Act of requirement promulgation be of the will accom- written adoption panied its effective date. After and due notice its probable determination of of the rule cause effective date appellate upon hearing suppression court and an court review will prepared contemporaneously record from the written made of the search warrant. the issuance with Supreme recently Court has noted States The United identity not meet the re- of the informant’s would mere disclosure supra. Aguilar, supra, Spmelli, liability mandated and standards Williams, S. Ct. 1921-24 In Adams upheld stop-and-frisk Supreme Court based on the policeman by conveyed informer, a known to a but information higher exacting distinguish more standards on to went “Thus, determining for a search cause warrant: while informant is reliable is not sufficient basis to establish reliability, Aguilar, perceive see it is how difficult to the mere mention affi informant’s name in the possibly satisfy require davit could the constitutional Spinelli5 ments of Although standing we conclude that the affidavit agree alone was we with the trial find- defective, court’s testimony pro- that the sworn oral of the affiant necessary “underlying vides the indicat- circumstances” ing reliability. orally Here in- was by police testimony formed under oath that the named informer had in addition to the information contained given police in the search warrant in- additional proved Specifically formation which be reliable. police body informer led the had an individual allegedly by appellant. murdered as did We conclude, suppression testimony that this sworn oral court, supplied proper evidentiary magistrate’s a basis for the finding that the information furnished to the was reliable.

At the evidence conclusion of the Commonwealth’s corpus appellant Appellant’s see- delicti demurred. tip the Court’s decisions indicate that this informant’s unverified may have been insufficient for a narcotics arrest or search war- rant, see, e.g., Spinelli States, (1969) ; v. United 393 U.S. 410 Texas, 378 U.S. 108 the information carried enough reliability justify stop indicia of the officer’s forcible (Justice (Emphasis supplied) of Williams.” Rehnquist). by naming may It is of no moment that the informer he there- suppression hearing. fore be available at Probable cause to is- by magis- sue a determined is “detached and neutral by issued, possibility trate” at the time the warrant not from an additional witness at some evidence some later date in an post States, 10, 13-14, Johnson v. United ex facto manner. (Justice Jaokson). persuasive (1948) it S. Ct. Nor is suggest gives the identification of the informer name opportunity to informer call the before him. This not done here. in over erred ond is that the trial court contention “The corpus his demurrer. We do ruling agree. proof murder consists of delicti prosecution] [in place took and that such death being human dead means indicate criminal under circumstances which . . other facts, a felonious act. . Like commission of . . .” it evidence. circumstantial may established 411 Pa. Commonwealth Frazier, (citations omitted) ; 429 Pa. 239 A. 2d 332 (1968). Maybee, suffi- the Commonwealth Appellant concedes remains discovered established skeletal ciently alleged satisfy To were those of the victim. that death resulted requirement through second criminal the Commonwealth offered agency her in good left home she was that when deceased The Commonwealth also established that ny- health. lon two in diameter and fastened by inches stocking, neck ver- double was tied around the deceased’s knot, tebrae. The who the pathologist performed autopsy, able categorically not state the cause of to although death the severe of the tes- decomposition body, due to around neck a normal tified that such the ligature strangu- kill person by “would the person suffocation, lation.” the Commonwealth that iden- Finally proved the tification cards and deceased jewelry belonging appellant in the possession police were found the pursuant pre- execution of search warrant discussed. viously that the Commonwealth’s argues proof

Appellant com- the deceased dispel possibility does We have the Com- held, however, mitted suicide. exclude proof need not suicide. Common- monwealth’s 411 Pa. 191 Frazier, wealth v. A. 2d The evidence was establish corpus properly and the delicti, court overruled the demur- rer. judgment of sentence affirmed.

Dissenting Opinion Pomeroy: Mr. Justice agree I am unable to that the existence of pre-condition cause as the for the search issuance requirement, warrant, basic constitutional can be by testimony given satisfied months after chal- later, lenge ato warrant has been made, to effect police orally officer and while under oath told supporting more than the affidavit discloses. respectfully I therefore dissent. disputes

No one that the search affidavit present constitutionally case was it defective: contained reliability no indication whatever of the e.g., unidentified informant. See, Texas, (1964) Spinelli 378 U.S. 12 L. Ed. 2d 723 Unit ed (1969); States, L. Ed. 2d 637 Unit ed States Harris, U.S. 573, L. Ed. (1971). Over four months after use of the warrant1 a hearing appellant’s suppress was held on motion to pursuant evidence seized to the warrant. At this hear issuing magistrate and stated officer given that the detective had additional sworn reliability, namely, that the informant had led body person allegedly of a murdered Assuming, arguendo, the accused. this informa supply tion was sufficient to reliability, the element of question original deficiency is whether the repaired warrant affidavit can be in this manner. As persuaded I think I indicated, not. am that if the writ signed showing probable ten and affidavit cause is not 1 July 22, 1968; suppression The warrant was issued on the hearing held on December was 1968.

319 any supplementation feet, able stand its own to statements must oral thereof the form of sworn contemporaneously;2 writing the otherwise, reduced to pro post both the due ex violates facto reconstruction pro the and cess Fourteenth Amendment clause the scription con and seizures searches of unreasonable Amendment. tained in the Fourth appeal hearing essentially suppression an A probable magistrate’s that from initial determination a Supreme cause for issuance of The exists warrant. suppres has States characterized Court of United procedure: appellate proceedings in terms of “Al sion though reviewing pay defer will substantial court judicial ence to determinations of cause, magistrate perform his must still insist that court merely not neutral and detached’ function and serve added.) police”. (Emphasis stamp as a rubber supra, 111. at well It now es Texas, requires the federal Constitution that tablished judicial right appeal granted, to order is when the completeness per there be record to must [appellant’s] “proper claims”, mit consideration appellate Mayer “adequate effective review”. City (1971). Chicago, 30 L. Ed. 2d dissenting agree separate Mand'ertno, Justice in his with I opinion herein, I, Article Sec. 8 of the Constitution Penn only writing sylvania requires writing, not but a “subscribed supplying affiant”, is the officer the information who support of a warrant. “subscribed to the issuance words appear Fourth not Amendment United affiant” do agree Superior I cannot with the Court States Constitution. phrase purpose in our state of this constitution “so was writing”. name and the accuser’s would be in the accusations Crawley, Superior Pa. Ct. 223 A. per curiam, Pa. 2d 226 aff'd Pennsylvania require grant Constitution alone would Thus the point suppression motion in this case. This argued this court. court lower raised See also, 100 L. Ed. Illinois, Griffin Pa. Anderson, 272 TMs court in held Anderson transcript per that “while a se is not an absolute due process necessity, equivalent there must at least be an ‘picture’ transpired of what below”. Id. at 493. analogous this I am satisfied that testi- situation, mony magistrate officers or at a trial or suppression hearing concerning what some occurred at provide earlier time when the warrant cannot issued “equivalent picture”. such an present The record case the hazards illustrates relying present inherent on the those memories of ap- at the time a is issued. warrant As stated above, pellant’s suppression hearing was held more than four challenged hearing, months after the search. At that majority opinion as the states, “Detective Burbush was initially giving any unable to recall oral magistrate, acknowledging whatsoever. The while testimony, existence of the sworn oral admitted memory proceed- his was dimmed fact that the ago’ surprising time ”. ‘some It is not During recollections of these witnesses were clouded. period policeman normally a four month nu- makes requests merous search ato who independent every case, make an must, review presented sworn facts himto and determine whether they expect constitute cause. To officer accuracy recall with at some later time transpired place what each such occasion an impossible burden on the individual officials an jus- on the efficient onerous burden administration tice. analogous

In a different but context the United Supreme pertinently Court has States observed: “the provide consequences appeal, of failure to an to record . . . to throw may [juvenile proceedings, court] for habeas burden upon machinery corpus, at saddle the the burden of reviewing process with to reconstruct a and to tempting record, impose upon the Juvenile un Judge duty testifying unseemly der cross-examination as to the events that transpired in In Re the before him.” 387 U.S. hearings Gault, 18 L. Ed. 2d 527 To require magistrate to reconstruct his grounds determining probable cause from cloudy memory what must often be a in several equally and as this case and “unseemly”, others are in this both pending court, that presently the court are sad suppression appellate court and the dled with the burden of to reconstruct attempting record.3 been to above have dangers recently alluded Ely of Appeals

well of the Court expressed Judge for the Ninth dissenting Boyer Arizona, Circuit, inher- 455 F. problem 2d 804 at 807-808 : “The (1972) ent in to find testimony belated oral relying upon an at the existence of was demonstrated probable cause the earlier Memories are blurred hearing is obvious. hind- passage gained through of time and the wisdom possible be and the sight. forgotten, Critical facts may when may initial the affiant vanish uncertainty to Inadvertent additions search to be fruitful. proves I ... are not unlikely. the remembered conversations to ignore the risk of error we are asked believe intolerable restriction our upon an places this case as decision magistrate’s review a to power effectively to cause.” probable all protecting right the interest of free from unreasonable searches,

citizens to be compounded by procedure are fact The evils of such parte pro magistrate’s ex is made at an initial determination way challenge ceeding, has no these recollec a defendant so that tions. shall

Fourth Amendment “no Warrants requires oath or issue, upon probable cause, supported by but been affirmation. ...” that amendment has Concededly, construed to oral to be given allow sworn the mak require and does not magistrate, expressly of a facts relied up record contemporaneous on to While United States provide cause.4 probable point, Court not to this Supreme spoken directly has the whole Spinelli philosophy Aguilar,' Harris, as I the information require read is to supra, them, an about informant which is to establish necessary as probable readily cause to demonstrable time probable cause made out. This is allegedly other susceptible of being accomplished any way than a writ contemporaneous which means a record, ing; pre cited Court Supreme opinions appear vehicle suppose equivalent affidavits as the through appear. cause made to It Amendment is worth the Fourth observing is also silent as the effect of violation of terms. to its Nowhere does without it state evidence seized probable cause shall be excluded at trial. Without exclusionary of freedom rule, however, assurance from state unreasonable searches or whether seizures, Supreme would as the Court has federal, be, said, “ ‘a merely undeserving form of valueless and words’, of mention in a charter perpetual of inestimable human liberties”. v. 367 Mapp U.S. 6 L. Ed. Ohio, 643, 655, 1081 v. (1961); see also Weeks United 232 States, 58 L. Ed. 652 383, the same so it By token, 4 Crawley, v. Superior Pa. 209 Ct. 223 (1966) ; Boyer Arizona, Lopez v. (9th 1972); F. 885 455 2d 804 Cir. States, Gillespie 1966) ; v. United (5th United F. 2d 8 Cir. 370 States, Sigler, 1966) (8th ; Miller F. 2d 368 1 Cir. F. 353 2d 424 1965) Sparks States, v. United (8th (6th Cir. F. 2d Cir. States, 1937). see, Poldo v. United (9th But F. 2d Cir. 1932). reasonably effective Amendment to be seems to the me, record as to probable written requires contemporary a transcription an affidavit or whether it be cause, the affidavit. sworn oral statements outside violation, no constitutional The Court, finding inhere dangers nevertheless recognizes rale avoid them by It to present practice. proposes in a I this recourse of criminal procedure. applaud re can serve to for the future but no rule proper case, similarly others store and the appellant Milliken, to I consider are before what us,5 situated whose cases require the constitutional have been a deprivation reviewing process ment of due probable cause, cause existed. that such magistrate’s finding Dissenting Opinion Mandeeino : Me. Justice I The Fourth Amendment dissent. respectfully Article Section I, the Federal Constitution and read cannot reasonably Constitution Pennsylvania Infor- majority. as the result reached permitting recited orally but mation related cannot issuing warrant, the basis for affidavit, cause probable considered whether testing be later we read for the issuance warrant—unless existed un- in an unnatural provisions the constitutional reasonable manner. Ed. 2d 378 U.S. L. Texas, “. . . con Ct. 1509 it was stated we S. should not search warrant therefore,

clude, provide did not because the have been issued affidavit .” basis for a cause. . . finding the Court was supplied.) Aguilar specifi (Emphasis whether the affidavit concerned with contained cally involving presented appeals, identical here- all issue Six argued time) (3 in, second at the Fall session of were awaiting disposition. November, 1972, a.nd are court justify sufficient facts the issuance the warrant. missing indication defect of gave no by subsequent facts affidavit could be cured orally as to what facts were stated by affiant at the time issued. Aguilar later States v. 102, cited United Ventresca, 13 L. 2d and the 108-09, Ed. 85 S. Ct. 741 not that probable Court said “. . . is cause say [i]Ais can be made out are conclu purely affidavits sory, or an be that the affiant’s informer’s stating only lief that probable detailing any cause exists without circumstances’ which that is upon ‘underlying belief . . . based. Recital of some of the circum underlying stances is if essential is affidavit to perform . . .” his detached function. (Emphasis supplied.)

More in United recently, Harris, States 403 U.S. 29 L. Ed. S. Ct. the Court in analyzing the of facts con- sufficiency necessary to stitute probable cause for the issuance a warrant con- sistently facts referred to contained—or not contained —in the affidavit.

In all of these it cases, is clear that the Court dis- cussing the Fourth requirement Amendment “. . . no warrants shall upon probable but issue, cause, supported oath or affirmation, particu- larly describing place to be searched and the per- son . things to be seized. . .”

Nor is it valid conclude the above cases were concerned Fourth with Amendment requirements requirements but with the of Rule Fed- eral Rules of Criminal Procedure. In Aguilar there no reference whatsoever to Rule of the Federal Rules of Criminal Procedure. There is not even a hint in any of the above decisions that the requirement of Aguilar affidavit holding must provide of probable for the finding basis cause is based on Rule rather Procedure Federal of Criminal of the Eules of the Fourth requirement on the constitutional than Amendment. Human of Declaration

The of the requirements Article Constitution, I, Sec- Pennsylvania of the Eights Fourth Amendment the more than explicit tion Constitution. the Federal Eights

The Declaration of Human Pennsylvania in their persons, “The shall be secure people states: from unreasonable possessions houses, papers any search to searches and no seizures, shall issue with- things or or person to seize place any nor as without may be, as describing nearly out them oath or sub- probable cause, supported by affirmation .” (Emphasis the . . by supplied.) scribed to affiant. requires Constitution Pennsylvania The affirmation sub- oath or by cause be probable supported the affiant. scribed to placed interpretation

The strained and unnatural in Commonwealth Crawley, above language be Pa. Ct. cannot Superior Crawley words According case, followed. to Constitution “subscribed Pennsylvania to oath or affirmation separate refers affiant” per- a tortured Only reading cause. the probable from An affirmation does conclusion. oath or mits such imprimatur is the in midair. It not hang affirmed. being sworn An end at appear does not or affirmation oath supports that which pre- It paper. blank sheet of a makes Constitution affirmation. the oath or cedes supported cause must be probable clear that or affirmation. oath Constitution states of the

The language One does sub- something. subscribe must affiant nothing. scribe

Tf the Pennsylvania Declaration Rights of Human did not require recitation the un- affidavit of derlying facts providing the basis for the it cause, would if an affidavit re- merely cited the “I swear following that what I magis- told the trate is true.” The statement such a makes result mockery requirements Pennsylvania Dec- laration of Human Rights.

Again, Pennsylvania Constitution refers to An one An signs who an affidavit. affiant. affiant is always a written statement of facts affidavit signed by the affiant under oath or affirmation.

The Fourth Amendment requires It specificity. speaks particularly place to be describing searched and the or The person things to be seized. Pennsylvania Constitution specific. is likewise As to the place, it them person things, requires describing as as be. nearly may Better could not language have been chosen express context of the. constitu- tional provisions, writing required. The effect conclusion majority’s would be speci- to allow the both ficity required by be Constitutions to sometimes related orally cannot been possibly have intended language Constitutions.

Under the can majority’s conclusion, magistrate an application issue warrant upon which contained nothing writing except a name person’s or an ad- All dress. can be handled oral particulars other reci- years tation and months or I cannot proven later. with such loose in- agree blatantly unreasonable language Federal Penn- terpretation Constitutions. human sylvania interpreting rights the freedom of a the first concern is free people. of sentence should reversed and a trial judgment new ordered.

Case Details

Case Name: Commonwealth v. Milliken

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 30, 1973

Citation: 300 A.2d 78

Docket Number: Appeal, 1

Court Abbreviation: Pa.