Appeal from order of Superior Court, Oct. T., 1972, No. 256, affirming judgment of sentence of Court of Common Pleas of Bucks County, No. 1086 of 1969, in case of Commonwealth of Pennsylvania v. William H. Simmons.
Michael F. O'Brien, Public Defender, for appellant.
Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy and Mr. Justice Manderino concur in the result.
Appellant, on May 27, 1969, was arrested and charged with possession of "narcotics and dangerous drugs", after a search, pursuant to a warrant, of appellant's apartment revealed a small quantity of marijuana. A timely motion to suppress evidence was filed, and, after an evidentiary hearing, denied. Thereafter, on January 26, 1971, appellant was tried before a jury and adjudged guilty. Motions for a new trial and in arrest of judgment were argued and denied. An appeal to the Superior Court resulted in an opinionless per curiam order of affirmance. This Court granted allocatur. We now reverse and remand for a new trial.
Appellant raises on this appeal two issues, both of which challenge the validity of the search warrant:
(1) Whether unrecorded sworn oral testimony, given to the magistrate, may supplement and support a deficient written search warrant affidavit and; (2) whether the totality of the evidence, both oral and written, submitted to the magistrate was sufficient to establish probable cause for the issuance of the warrant.
Appellant cannot prevail on his first contention. As this Court recently held in Commonwealth v. Milliken, 450 Pa. 310, 314-15, 300 A.2d 78, 81 (1973): " 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.
"We shall therefore, in exercise of our supervisory powers, formulate by rule of Court appropriate procedural requirements of a sufficient written record made contemporaneously with the issuance of search warrants. Because this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar." (Emphasis
added) (footnotes omitted). Accordingly, since the procedural rule to be adopted will apply only to search warrant applications submitted after its (the rule's) announced effective date, ...