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COMMONWEALTH v. MILLIKEN (01/30/73)

decided: January 30, 1973.

COMMONWEALTH
v.
MILLIKEN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, Sept. T., 1968, No. 14, in case of Commonwealth of Pennsylvania v. Thomas Eugene Milliken.

COUNSEL

Arthur K. Dils, Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Manderino.

Author: Roberts

[ 450 Pa. Page 311]

Appellant Thomas Eugene Milliken was tried by a jury and convicted of first degree murder. Post-trial motions were denied and appellant was sentenced to life imprisonment. On this direct appeal appellant challenges the constitutionality of a search warrant issued on July 22, 1968,*fn1 and further contends that the Commonwealth failed to establish a corpus delicti. We find that the issuance of the search warrant comports with constitutional standards and the record supports a finding of a corpus delicti. We affirm.

On July 22, 1968, Detective Barbush, a member of the Harrisburg police force, submitted the following affidavit to the magistrate who ultimately made a finding of probable cause and issued the search warrant: "That on or about the 9th day of July, 1968, an informant namely Allen Lee Ricker, 17 years of age, of 96 North St., John's Road, Camp Hill, Cumberland County,

[ 450 Pa. Page 312]

Pennsylvania, did see the above-described items [the dead person's alleged identification] at the aforementioned place while in the possession of one Thomas Eugene Milliken, the occupant of the said apartment, which information has been given to me, Detective Kenneth J. F. Barbush, and which I believe to be true and correct. These items are alleged to be the property of the unidentified female individual." In addition the police under oath informed the magistrate that the individual named in the warrant, Mr. Allen Ricker, had previously led the police to the body of the person allegedly murdered by appellant.

Appellant raises the troublesome question of whether sworn oral testimony by the affiant may validly supplement a written affidavit which by itself does not meet the constitutional standards announced in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and refined in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969). Appellant contends that it was constitutionally impermissible for the magistrate to consider the oral testimony given under oath by the police in determining probable cause. He further argues that absent the sworn oral testimony, the magistrate did not have before him sufficient information from which he could make a finding that the police informant was reliable, a finding explicitly required by Aguilar and Spinelli.

This Court has recognized that the same standards for judging probable cause for a search warrant are applicable for determining probable cause to make an arrest. Commonwealth v. Garvin, 448 Pa. 258, 263, 293 A.2d 33, 36 (1972); Spinelli v. United States, 393 U.S. 410, 417 n.5, 89 S. Ct. 584, 589 n.5 (1969). We further held in Garvin that "probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest . . .

[ 450 Pa. Page 313]

    are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed a crime." 448 Pa. at 262, 293 A.2d at 36.

When the officer's belief that the suspect has the fruits or evidence of a crime is based upon an informer's "tip" rather than upon the officer's personal knowledge or observation, the officer must have two types of information before probable cause is established. First, in order to assure that the "tip" is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect possessed the fruits or evidence of a crime. Second, in order to reduce the possibility that a "tip" meeting the first standard is merely a well-constructed fabrication, the officer must have some reasonable basis for concluding that the source of the "tip" was reliable. Spinelli v. United States, 393 U.S. 410, 415-16, 89 S. Ct. 584, 588-90 (1969); Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S. Ct. 1509, 1514 (1964); Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971).

The argument that a proceeding culminating in the issuance of a search warrant must have all the supporting information reduced to writing is bottomed on the inherent difficulty of reviewing challenged unrecorded oral ex parte testimony. It is of course only too wellrecognized that the "passage of time" inevitably causes "memories . . . [to] fade." Dickey v. Florida, 398 U.S. 30, 42, 90 S. Ct. 1564, 1571 (1970) (Justice Brennan concurring). Without a substantially complete record made contemporaneously with the issuance of the warrant, subsequent review of the partially unwritten proceeding may become tainted by possible additions of relevant information initially omitted but later supplied by hindsight.

Indeed this very problem is demonstrated here. A crucial question at the suppression hearing was whether

[ 450 Pa. Page 314]

    in determining the reliability of the police informer the magistrate relied on the sworn oral testimony of the affiant. At the hearing, held several months after the issuance of the search warrant, Detective Barbush was initially unable to recall giving any oral testimony whatsoever. The magistrate, while acknowledging the existence of the sworn oral testimony, admitted that his memory was dimmed by the fact that the proceeding was "some time ago." It would have been far preferable had the proceedings before the magistrate been transcribed, or had the sworn oral testimony been otherwise reduced to writing, or had the police submitted only written and supplemental written affidavits for his consideration.

Despite the obvious desirability of having all the information before the magistrate in writing, we are not persuaded that the affiant's sworn oral testimony may not supplement his written affidavit and together supply the constitutional basis for the issuance of a search warrant. Appellant has been unable to cite any authority in support of his position and indeed the existing case law is to the contrary. See, e.g., Boyer v. Arizona, 455 F. 2d 804 (9th Cir. 1972); Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Sparks v. United States, 90 F. 2d 61 (6th Cir. 1937); Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966), aff'd, 432 Pa. 627, 247 A.2d 226 (1968). In the absence of any constitutional or decisional authority or procedural rule making impermissible the procedure here employed, appellant's claim for relief on this asserted ground must be rejected. In doing so we nevertheless express our preference for reducing to writing in some acceptable manner sworn oral testimony offered in support of the issuance of the search warrant.

[ 450 Pa. Page 315]

We shall therefore, in exercise of our supervisory powers, formulate by rule of Court*fn2 appropriate procedural requirements of a sufficient written record made contemporaneously with the issuance of search warrants.*fn3 Because this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar.

Confining ourselves for a moment to the four corners of the written affidavit, it is manifest that it was insufficient to provide the magistrate with an evidentiary basis from which he could properly conclude that the information given to the police originated from a reliable source. In Aguilar the United States Supreme Court made it quite clear that "the magistrate must be informed of . . . some of the underlying circumstances from which the officer concluded that the [informants'] . . . information . . . [was] 'reliable.'" Id. at 114, 84 S. Ct. at 1514. Here the affidavit sets forth only the informer's name, unexplicated by any other information in ...


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