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.
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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
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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
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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 ...