decided: March 16, 1973.
Appeal from order of Superior Court, Oct. T., 1971, No. 263, affirming the judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1240, in case of Commonwealth of Pennsylvania v. William Hall.
John W. Packel, Assistant Defender, with him Michael L. Levy and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Edwin D. Wolf submitted a brief for amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this concurring opinion.
[ 451 Pa. Page 202]
Appellant William Hall was tried non-jury in the Common Pleas Court of Philadelphia and convicted of possession and use of narcotic drugs. Post-trial motions were denied and appellant was sentenced to a term of imprisonment of not less than forty days nor more than twenty-three months. The Superior Court affirmed the judgment of sentence, Commonwealth v. Hall, 219 Pa. Superior Ct. 760, 281 A.2d 345 (1971), and we granted allocatur. For reasons which follow, we remand for another suppression hearing.
Prior to trial appellant made a timely motion to suppress certain evidence in accordance with Pa. R. Crim. P. 323(b). After an evidentiary hearing the motion to suppress was denied. It is the scope and result of that suppression hearing which forms the primary basis for this appeal.*fn1
[ 451 Pa. Page 203]
The suppression hearing focused upon the validity of a search warrant issued June 14, 1970, and executed at 1:00 A.M., June 15, 1970. The execution of the warrant resulted in the police uncovering a small quantity of narcotic drugs in appellant's possession. The Commonwealth readily admits that the possession of these drugs was indispensable in obtaining appellant's conviction. In applying for the warrant the police officer-affiant alleged that at a specified apartment narcotic drugs in significant quantities were being sold. The source of the information, according to the affidavit, was an informant, whose identity the police have not disclosed. See McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967); Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966).
To establish the reliability of the information received from the unnamed informer, Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), the affidavit alleged that in the past two years the police had received information from that informant in at least five cases, three resulting in convictions and two still pending. Based on the assertions contained in the affidavit, including the apparent establishment of the informant's reliability, the magistrate determined that controlling probable cause standards had been satisfied and issued the warrant. Appellant concedes that the language on the face of the warrant recites probable cause.
During cross-examination of the police officer-affiant at the suppression hearing defense counsel asked for the names of those individuals previously arrested as a result of information received from the unnamed informants.*fn2 The purpose of the question was to explore
[ 451 Pa. Page 204]
the veracity of the facts recited in the affidavit supporting the warrant. Counsel expressly disavowed any intention of ascertaining the identity of the informant, and, to further protect the informant's anonymity, offered to conduct the cross-examination in camera.*fn3 The Commonwealth's objection to the question was sustained and the suppression judge ultimately found the evidence seized pursuant to the warrant admissible. It is the refusal of the hearing judge to permit this cross-examination, seeking to determine the reliability of the unnamed informant, that is alleged as error.
The threshold question is whether the veracity of facts establishing probable cause recited in an affidavit supporting a warrant can be challenged and examined at a suppression hearing. Indeed, such facts may be so challenged. In Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970), this Court sustained a challenge to a search warrant when it was later established that the police officer-affiant knowingly falsified a material statement in the affidavit supporting the warrant. In so holding this Court, pertinently noted: "To rule otherwise would permit the police in every case to exaggerate or to expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination." Id. at 337-38, 263 A.2d at 444.
[ 451 Pa. Page 205]
As numerous state and federal courts have recognized,*fn4 the right of a defendant to challenge the veracity of facts recited in a warrant is not premised on an assumption of perjury by law enforcement officials: "Although we have repeatedly stated that 'outright perjury by government agents is not a common occurrence,' . . . we by no means foreclose the possibility that, in the appropriate circumstances, a hearing should be held to establish the veracity of sworn allegations in an affidavit which is adequate on its face." United States v. Gillette, 383 F. 2d 843, 848 (2d Cir. 1967) (citation omitted).
Rather, the right to challenge the truthfulness of recitals in a warrant follows from the command of Aguilar-Spinelli that the magistrate make a "detached and objective determination" of probable cause. Commonwealth v. D'Angelo, supra at 338, 263 A.2d at 444. If a magistrate is furnished, and reviews falsified averments, he is effectively "[precluded from making] a detached and objective determination." Id.*fn5 As the New
[ 451 Pa. Page 206]
York Court of Appeals observed: "Modern thought which produced the decision in Mapp v. Ohio (367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081) would make incongruous any holding that a search warrant is beyond attack even on proof that the allegations on which it was based were perjured." (Emphasis added.) People v. Alfinito, 16 N.Y. 2d 181, 185, 264 N.Y.S. 2d 243, 246, 211 N.E. 2d 644, 646 (1965).
The Commonwealth rather reluctantly concedes this point,*fn6 but contends that the attempt here to test the veracity of the warrant must fail because appellant did not specify prior to the hearing precisely which part of the warrant was inaccurate. The Commonwealth's position, reduced to its essence, is that while appellant may have the right to challenge the veracity of facts recited in a warrant, he may not do so without first showing the potential falsity of those facts.
We must reject such an unduly restrictive interpretation of Commonwealth v. D'Angelo, supra. Such an interpretation would virtually emasculate the teaching
[ 451 Pa. Page 207]
of D'Angelo that facts supporting a warrant may be shown to be false or misleading.
Here the pivotal issue at the suppression hearing was the reliability of the information attributed to the unnamed informer. If the informer was reliable, the search warrant was issued with probable cause. If the informant was proven to be without reliability, the warrant was improperly issued.*fn7 A mere assertion to the magistrate that the informer was "reliable" does not satisfy the Aguilar-Spinelli test. See Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971). Recognizing that fact, the police officer-affiant gave the magistrate "underlying facts," see Aguilar, seeking to establish the informant's reliability, i.e., that the informer "has given me information of this type in the past, which has resulted in more than 5 arrests and 3 convictions."
However, the allegation of "5 arrests and 3 convictions" resulting from an unnamed informant's earlier information is an assertion that is impossible for a defendant to explore prior to the suppression hearing, and is clearly a proper subject for inquiry there. Moreover, even discovery under Pa. R. Crim. P. 310 would not gain a defendant either the desired information or the opportunity to challenge the assertion of previous reliability by the affiant. Nor is it information within
[ 451 Pa. Page 208]
the personal knowledge of the defendant. Compare Commonwealth v. Turra, 442 Pa. 192, 275 A.2d 96 (1971). Indeed, the only existing method to effectively probe the veracity of the assertion is to allow a defendant meaningful cross-examination of the police officer-affiant at the suppression hearing. As former Judge, now Chief Justice, Burger poignantly noted in another context: "The traditional safeguards of the Anglo-American legal system 'leave the veracity of a witness to be tested by cross-examination.'" Bush v. United States, 375 F. 2d 602, 604 (D.C. Cir. 1967).
It must be concluded that appellant at the suppression hearing should have been afforded the opportunity through "the traditional safeguard" of cross-examination, to test the truthfulness of the recitals in the warrant alleging the informant's previous reliability.
We remand for a new suppression hearing in conformity with this opinion. If the suppression court determines the challenged evidence is to be suppressed, then a new trial is granted. If, however, the court determines the evidence is not to be suppressed, the judgment of sentence remains and appellant may file a timely appeal from that determination, if he so desires.
Case remanded for new suppression hearing.
Concurring Opinion by Mr. Justice Nix:
The United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914) and Mapp v. Ohio, 367 U.S. 643 (1961) required the exclusion from federal and state courts, respectively, of evidence seized in violation of the Fourth Amendment.*fn1 While that Court
[ 451 Pa. Page 209]
has discussed in great detail the allegations necessary to establish probable cause*fn2 it has expressly withheld any decision as to what if any extent a defendant may be permitted to proceed beyond the face of the affidavit to challenge the accuracy of those allegations.*fn3 The decision whether to allow any challenge beyond the face of the affidavit presents a myriad of perplexing problems, e.g., how far should the inquiry be allowed; which inaccuracies should justify the imposition of the doctrine of exclusion.*fn4
My concern is that this Court's decision in Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970) and the majority opinion in this case should be understood as being limited to situations where the challenge alleges deliberate misstatements by a police official affiant*fn5
[ 451 Pa. Page 210]
as to a material*fn6 fact within the affidavit. If these two decisions are to be so construed, then I concur.
Where the affiant is a police official and perjury is committed by that official or with his knowledge and consent to provide a basis for securing the warrant I am satisfied that this is the type of offensive governmental action that the Fourth Amendment was directed against and the exclusionary doctrine designed to deter.
It must be remembered that every misstatement need not be a result of perjury and could just as likely result from inadvertence or negligence. In either instance the problems are unique. They differ not only from the deliberate lie but between themselves and should be resolved only when that specific factual issue is raised.
In conclusion, in my judgment, the decision in this case and in D'Angelo, supra, should not suggest that we have affirmed unlimited inquiry into the underlying validity of the affidavit or that any inaccuracy would necessarily justify the exclusion of evidence seized pursuant thereto.