decided: May 4, 1973.
BEDFORD AND HUGHES, APPELLANTS
Appeal from order of Superior Court, April T., 1970, Nos. 257 and 258, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1968, Nos. 242 and 337, in case of Commonwealth of Pennsylvania v. Murrell L. Bedford, alias Murrill Bedford, alias Merle Bedford and Mary Hughes.
Byrd R. Brown, for appellants.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino concurs in the result. Concurring Opinion by Mr. Justice Pomeroy.
[ 451 Pa. Page 326]
Appellants, Murrell Bedford and Mary Hughes, were arrested on December 18, 1967, and charged with violating The Drug, Device and Cosmetic Act (possession of narcotics).*fn1 These charges resulted from a search, conducted pursuant to a warrant, of appellant Bedford's apartment (with appellant Hughes on the premises) which produced narcotics. After an evidentiary hearing, a timely filed pre-trial motion to suppress evidence was denied. Thereafter on May 28, 1969, in a jury trial, appellants were adjudged guilty of possession of narcotics. Post-trial motions were denied. Appellant Hughes was sentenced to a three-year term of imprisonment. Appellant Bedford, being sentenced
[ 451 Pa. Page 327]
as a recidivist, was ordered imprisoned for ten to twenty years. The Superior Court affirmed in an opinion-less per curiam order. This Court granted allocatur, and we now reverse and remand for a new trial.
Appellants, on this appeal, contend that probable cause was not established before the magistrate to sustain the issuance of the search warrant.*fn2 With this contention we agree.
As the Commonwealth concedes, the written affidavit*fn3 submitted to the magistrate was insufficient to establish the existence of probable cause. No underlying circumstances were contained therein which established the credibility and trustworthiness of the informant's personal knowledge (that narcotics were in
[ 451 Pa. Page 328]
Bedford's apartment) or the reliability of the informer himself. Accordingly, the "two-prong" test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964), was not met.*fn4 See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969).
Despite the obvious insufficiency of the written affidavit, the Commonwealth seeks to sustain the warrant on the basis of oral sworn testimony purportedly conveyed to the magistrate prior to the issuance of the warrant. Appellee cannot prevail on this contention.
Although sworn oral testimony may be used to supplement a written search warrant affidavit, Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973), and the cases cited therein,*fn5 on this record, it is clear
[ 451 Pa. Page 329]
from the suppression court's order that no sworn oral testimony was presented to the magistrate prior to the issuance of the warrant.
At the suppression hearing, the Commonwealth chose not to call the issuing magistrate. Instead, the affiant-police officer testified, at that hearing, to having had, at the time the warrant was issued, personal knowledge of the informant's reliability as well as personal knowledge of his (the informant's) factual allegations. However, the record does not indicate that this information was conveyed to the magistrate prior to the issuance of the warrant. The absence of such information at that time necessarily requires that the validity of the warrant turn solely upon the adequacy of the information contained in the written affidavit, itself, which was here concededly insufficient.*fn6
[ 451 Pa. Page 330]
On cross-examination, the affiant-officer testified as follows: "Q. You don't recall what you specifically told the magistrate other than what is in this complaint here; is that correct? A. That is correct. Q. So that what you told the magistrate is what is in this complaint? A. I do not recollect that. I know what is in the complaint, I told the magistrate. If there was [sic] any additions, I don't recall." Immediately following this admission, defense counsel renewed his previously made motion to strike the officer's testimony regarding the officer's personal knowledge of the informant's reliability. At the conclusion of argument on the motion, the trial court stated that ". . . if I go beyond the face of the Complaint for Probable Cause [ the affidavit ] I will indicate that, and I will give you an opportunity for additional examination of witnesses."
It is clear from the record that the suppression court did not go "beyond the face of the [affidavit]" in determining the validity of the warrant, and therefore no additional cross-examination was necessary. As the court stated, in its order denying appellants' motion to suppress: "[I]t is hereby Ordered, Adjudicated and Decreed that based upon the affidavit of probable cause and the warrant issued thereafter, the evidence was seized in conformity with the law and that, therefore, the application to suppress evidence be and the same is hereby Denied." (Emphasis added.)
It is beyond doubt that in so ruling, the suppression court tacitly granted appellants' motion to strike the affiant-officer's testimony. Therefore, based solely on the written affidavit, the court denied appellants' motion to suppress. As has already been noted, the "written affidavit", on its face, as the Commonwealth concedes, was inadequate to support a finding of probable cause sufficient to validate the issuance of the warrant. Spinelli, supra; Aguilar, supra. Accordingly,
[ 451 Pa. Page 331]
the trial court erred by failing to suppress the challenged evidence.*fn7
The order of the Superior Court and the judgment of sentence are reversed and new trial granted.
Order of Superior Court and judgment of sentence reversed and new trial granted.
Concurring Opinion by Mr. Justice Pomeroy:
I concur in the opinion of the Court, noting only that I continue to disagree with the Court's decision in Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973), which is here properly distinguished. See id., 450 Pa. 318, 300 A.2d 84 (Pomeroy, J., dissenting).