Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1966, No. 566, in case of Commonwealth v. Felton Robinson.
John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., dissents. Dissenting Opinion by Watkins, J.
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Appellant was convicted of conspiracy and aggravated robbery. The evidence upon which appellant was convicted included reference to pawn tickets and jewelry, which items were seized by the police pursuant to a search of appellant's home. Prior to trial, appellant had moved for the suppression of the pawn tickets and jewelry and testimony relating to where they were found, which motion was denied. From judgment of sentence, this appeal followed.
Two warrants are of concern here, an arrest warrant and a search warrant. The arrest warrant was obtained one week after the robbery charged. The search warrant was obtained several days later before a different magistrate than the one who had issued the arrest warrant.
The arrest warrant's probable cause section contained the following: "On or about [a certain date] in the County of Philadelphia, the accused committed the following acts: Robbery, while armed with a gun and with an accomplice, on the person of [the victim], inside his home, at which time they took [an amount of money]. Complainant [i.e., the victim] identify [sic] [appellant's] picture, positively as one of the two men who robbed him. . . ." Thus, the arrest warrant specified the source of the affiant's information.
The search warrant's probable cause section contained the following: "Subject named in this warrant [appellant] has been identified as one of two men who robbed [the victim] inside his residence at [a certain place] on [a certain date], at which time he took United States currency and [certain] items [of jewelry]." Unlike the arrest warrant, there is no indication
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as to the source of the affiant's information nor did anything else in the warrant supply the source.
At the suppression hearing, in accordance with Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966), the court was willing to admit into evidence not only the probable cause section of the search warrant but also any sworn testimony given by the police officer who obtained the warrant to the magistrate who issued it. The police officer could not, however, recall what conversation he had with the magistrate and, particularly, whether any further inquiry was made. The police officer was not asked, and we cannot know, whether he brought the arrest warrant to the magistrate's attention.
Armed with both the arrest and search warrants, two police officers went to appellant's two-story home at 11:30 or 11:40 p.m. one night. March 26-28 N.T. 123. When they arrived, appellant was not home. Appellant's wife admitted the officers. Although it is not absolutely clear, it appears the officers immediately executed the search warrant.*fn1 In appellant's bedroom, on his dresser, they found two pawn tickets lodged in
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a book.*fn2 Because the articles described on the tickets matched the articles stolen in some respects, the officers seized them. After they finished searching, they waited for appellant. "We went there on the 27th, late that night. After we searched the premises and he wasn't there, we waited for him to come home, because we intended to arrest him. He came home at 2:00 a.m. that morning." March 25 N.T. 35. "Q. Did you then arrest Mr. Robinson as he walked into the house? "A. Yes. He was up on the porch, coming up on the porch of his house." March 26-28 N.T. 155 [Emphasis added.].
The proper question raised by these facts is a narrow one: Was the probable cause section of the search warrant sufficient to sustain a finding of probable cause so that the warrant could lawfully be issued?
In answering this question, our purview is not unrestricted. We cannot peruse the entire record of the case in order to substantiate the probable cause section of the search warrant. We must confine ourselves to what the police officer wrote in his affidavit or orally swore to the magistrate. Commonwealth v. Crawley, supra at 75-78, 223 A.2d 889-890. The dissent would not be so confined. Regardless of whether the magistrate had enough information to constitute probable cause, the dissenting judges would sustain the warrant so long as they, on a search of their own, could gather from other warrants, police reports and any variety of sources that the officer indeed had probable cause.*fn3 Such an approach would circumvent the constitutional protection afforded us by the Fourth Amendment, to have a "neutral and detached magistrate"
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decide whether the police officer had probable cause to enter our homes. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367 (1948). We cannot do away with the requirement that the magistrate decide whether probable cause exists and substitute in his stead a police officer. The Fourth Amendment does not permit a police officer to investigate and to judge the propriety of his investigation, too.
The frailties of the instant search warrant are apparent. The probable cause section fails in two respects: (1) It lacks any statement which would support a finding that the affiant had made observations of his own or that he had received his information in a reliable manner. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969). (2) It also lacks any statement which would support a finding that the informant was credible, i.e., that his ...