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BETRAND APPEAL (04/13/73)

decided: April 13, 1973.

BETRAND APPEAL


Appeal from order of Superior Court, Oct. T., 1972, No. 22, affirming judgment of sentence of Court of Common Pleas, Family Court Division, of Philadelphia, Feb. T., 1971, No. 1619, in re George Betrand, a minor.

COUNSEL

Stuart H. Schuman, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James T. Ranney, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Eagen concurred in the result. Concurring Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 451 Pa. Page 384]

On January 8, 1971, a pharmacist and his assistant were beaten and robbed by three unidentified males on Germantown Avenue in Philadelphia at approximately 8:00 p.m. Almost six weeks later the police received an anonymous phone call from a youth who said that one of the participants in that robbery was named "Primo" and that "Primo" lived in a certain area of Philadelphia. Two days later, appellant, George Betrand, a juvenile, known to the police as "Primo", was arrested without a warrant. He was taken immediately to the station house and placed in a locked interrogation room where he remained for approximately two hours. A detective subsequently arrived and advised him of his rights by reading from the standard police interrogation card. After approximately one-half hour of questioning, appellant gave an oral statement admitting his involvement in the robbery.

Appellant was charged with robbery, assault with intent to kill, aggravated assault and battery, and conspiracy. He was adjudicated delinquent by the Juvenile Division of the Family Court of Philadelphia and committed to the Youth Development Center, South. Following that determination he appealed to the Superior Court which affirmed the adjudication of delinquency. Betrand Appeal, 222 Pa. Superior Ct. 67, 293 A.2d 359 (1972) (Packel, J., dissenting, joined by Hoffman, Spaulding, JJ.) We granted allocatur. Appellant contends that his confession was the fruit of an illegal arrest and was also the product of an involuntary and unintelligent waiver of his Fifth Amendment right against self incrimination.*fn1 We reverse and remand.

[ 451 Pa. Page 385]

At this late date it is uncontrovertibly beyond dispute that the Constitution of the United States prohibits the arrest of a person unless the arresting officer has probable cause to believe that a crime has been or is being committed. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623 (1963); Henry v. United States, 361 U.S. 98, 80 S. Ct. 168 (1959); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925); Commonwealth v. Goslee, 427 Pa. 403, 234 A.2d 849 (1967); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Probable cause has repeatedly been held to exist only "where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that 'an offense has been or is being committed'." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1311 (1949), quoting Carroll v. United States, supra at 162, 45 S. Ct. at 288; see McCray v. Illinois, supra; Ker v. California, supra; Commonwealth v. Goslee, supra; Commonwealth v. Ellsworth, supra. See also Commonwealth ex rel. Grano v. Anderson, 446 F. 2d 272, 273 (3d Cir. 1971).*fn2

It is also well settled that even hearsay information is sometimes sufficient to establish probable cause. See Draper v. United States, 358 U.S. 307, 79 S. Ct. 329 (1959); Brinegar v. United States, supra. However,

[ 451 Pa. Page 386]

    when, as here, probable cause for a warrantless arrest*fn3 is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional 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 participated in the robbery. 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, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); cf. Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).

Applying the Aguilar-Spinelli standards here it is patently clear that the informant's tip, the sole basis for appellant's arrest, was insufficient to establish probable cause. First, the tip came from an unidentified informant, who supplied no indication that he had any personal knowledge of the crime whatsoever. His information was completely conclusory with no underlying facts or circumstances to bolster his report. The anonymous caller merely told the police that the suspect's name was "Primo" and indicated where "Primo" lived -- nothing more. Thus the first requirement of Aguilar-Spinelli -- underlying circumstances supporting an informant's conclusion -- was clearly absent here.*fn4

[ 451 Pa. Page 387]

Secondly, as appellant succinctly points out "the record is devoid of underlying circumstances showing [any] reason to believe that the informant himself was a credible person." Thus the second aspect of the Aguilar-Spinelli test is likewise unfulfilled.

The Commonwealth urges that probable cause was established here because the "anonymous telephone call contained significant inner indicia of reliability, important details of which were corroborated by the arresting officers' own knowledge." Apparently the Commonwealth is contending that the informant was inherently reliable since he was an "anonymous citizen-informant" who was "too scared" to reveal his identity to the police. Such an informant, argues the Commonwealth, is more reliable than "the typical stoolie". However, the Commonwealth here engages in sheer conjecture, as it admittedly has no ...


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