decided: September 15, 1967.
Appeal from judgment of Court of Quarter Sessions of the Peace of Montgomery County, Feb. T., 1966, No. 22, in case of Commonwealth of Pennsylvania v. Anthony Bondi.
Daniel L. Quinlan, Jr., for appellant.
Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker and George W. Tracy, Assistant District Attorneys, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Jacobs, Hoffman, and Spaulding, JJ. (Wright, Watkins, and Montgomery, JJ., absent). Opinion by Spaulding, J.
[ 211 Pa. Super. Page 24]
Appellant was arrested on January 28, 1966 by State Police officers and subsequently convicted on charges of setting up a lottery, being concerned in a lottery, selling lottery tickets, poolselling and bookmaking. The arrest occurred at approximately noon in the parking lot at the place of appellant's employment pursuant to an arrest warrant while, simultaneously, his car was searched pursuant to a search warrant. Both warrants were issued on the basis of "information supplied by an informant who this officer knows to be
[ 211 Pa. Super. Page 25]
reliable and who has furnished info. in past and also on observation on January 27, 1966." Timely motions were made by defense counsel to suppress any evidence seized as a result of either warrant. The court below granted the motion as to the search warrant*fn1 but denied it as to the arrest warrant because "of the vast distinction between search warrants and arrest warrants."
Two problems are presented: whether there was a valid arrest warrant and, if not, whether a valid arrest was made without a warrant.
We must determine whether the standard of indicia of probable cause on which the magistrate must make his determination as to the issuance of a warrant differs as between search and arrest warrants. In Giordenello v. United States, 357 U.S. 480 (1958), the Court stated that the "probable cause" requirement comes from the Federal Rules of Criminal Procedure, but "[t]he provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that '. . . no Warrants shall issue, but upon probable cause . . .' of course applies to arrest as well as search warrants." (at 485-486).*fn2 The court below was cognizant of the Giordenello case, but felt that its effect was limited to interpretation of the Federal Rules of Criminal Procedure. Giordenello may not be completely clear on its face, but subsequent cases demonstrate that it was meant to encompass more than these Rules. "In Giordenello, although this Court construed the requirement of 'probable cause' contained in Rule 4 of the Federal Rules of Criminal Procedure, it did so 'in light of the constitutional' requirement of probable cause which that Rule implements. . . . The principles announced
[ 211 Pa. Super. Page 26]
in Giordenello derived, therefore, from the Fourth Amendment, and not from our supervisory power." Aguilar v. Texas, 378 U.S. 108 (1964) (Ftn. 3 at 112). See also Beck v. Ohio, 379 U.S. 89 (1964) (Ftn. 5 at 96).
Since arrest warrants in state court criminal trials must meet the constitutional standards established by the Supreme Court, it is necessary to examine the warrant in the instant case to test its sufficiency, and when placed against the relevant federal and state cases, this warrant is inadequate. In Giordenello, the Supreme Court outlined the theory underlying the probable cause requirement: "The protection afforded . . . is that the inferences from the facts which lead to the complaint '. . . be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." (at 486) (Emphasis added.) In Nathanson v. United States, 290 U.S. 41 (1933), a warrant was issued on the sworn allegation that the affiant "has cause to suspect and does believe" that certain merchandise was in a specified location. The Court noted that the affidavit was "upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts." id., at 46 (Emphasis added.), and then stated: "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable
[ 211 Pa. Super. Page 27]
cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." Id., at 47. In Aguilar v. Texas, supra, an affidavit reciting that: "'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'" (at 109) was held insufficient. The mere conclusion that Aguilar possessed narcotics was not even that of the affiant himself, it was the conclusion of the unidentified informant. The affidavit not only contained no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein, it did not even contain an affirmative allegation that the affiant's unidentified source spoke with personal knowledge. The magistrate in Aguilar could not, therefore, judge for himself the persuasiveness of the facts relied on to show probable cause. He must necessarily have accepted, without question, the informant's belief or mere conclusion.
So it is in the instant case. As stated by President Judge Ervin in Commonwealth v. Smyser, 205 Pa. Superior Ct. 599, 211 A.2d 59 (1965), "The only way in which the magistrate could issue a warrant on such an affidavit is by accepting the affiant's conclusions and 'rubber-stamping' a warrant." (at 605). Here, there were no facts sworn to from which he might make his own separate, impartial determination as to whether or not probable cause existed.
Among the several state cases, the one most clearly applicable is the Smyser case, supra. In that case our Court held that a complaint averring a belief by deponent, on the basis of an investigation by an unnamed investigator, that defendant was concealing narcotics,
[ 211 Pa. Super. Page 28]
etc., in his apartment was insufficient because it provided no basis for an independent magisterial determination. On the other hand, Commonwealth v. Ametrane, 205 Pa. Superior Ct. 567, 210 A.2d 902 (1965), aff'd, 422 Pa. 83, 221 A.2d 296 (1966), is clearly distinguishable, for in that case sufficient facts were included in the complaints to permit a magistrate to find probable cause independently.*fn3 In Commonwealth v. Alvarez, 208 Pa. Superior Ct. 371, 222 A.2d 406 (1966), where "probable cause" was based on "Very Reliable Information 100% In The Past, Surveilance [sic] Conducted 6-2-64, 5-31-64," the warrant was held to be inadequate.*fn4
[ 211 Pa. Super. Page 29]
The Commonwealth next contends that the arrest was valid even without a warrant. This contention seems to be based on either or both of the following grounds: first, that probable cause existed to justify an arrest without a warrant, and second, that the Act of March 31, 1860, P. L. 382, § 60, 18 P.S. § 1445*fn5 permits arrest in such an instance, with or without a warrant.
The first contention must fail. "Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed." Wong Sun v. United States, 371 U.S. 471 (1963) (at 479-480). "To hold that an officer may act in his own, unchecked discretion upon information too vague and from too untested a source to permit a judicial officer to accept it as probable cause for an arrest warrant would subvert [the fundamental policy of the Fourth and Fourteenth Amendments]." Id., at 482. So that where a warrant is held defective it follows,
[ 211 Pa. Super. Page 30]
a fortiori, the same information cannot be held sufficient to constitute a valid arrest without a warrant.
As to the Commonwealth's second contention, it also must fail. In Commonwealth v. Patti, 205 Pa. Superior Ct. 379, 209 A.2d 17 (1965), this Court held the statute to be in rem, permitting the seizure and destruction of gambling equipment, which is subject to seizure with or without a search warrant. But, Aguilar and other cases "would prevent the use of such property as evidence in a criminal prosecution if its seizure did not meet the required standard." Id., at 384.