Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7503427A. No. 772 April Term, 1975.
John J. Hickton, Dist. Atty., Charles W. Johns, Louis R. Paulick, Asst. Dist. Attys., Pittsburgh, for appellant.
John J. Dean, Pittsburgh, for appellee.
Watkins, President Judge, and Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files a dissenting opinion, in which Van der Voort, J., joins.
[ 242 Pa. Super. Page 256]
On July 14, 1975, the lower court suppressed evidence seized pursuant to an April 11, 1975 search warrant. The Commonwealth has appealed and would have this Court create an unprecedented exception to the standards announced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We decline to do so and affirm the lower court.
Appellant was indicted for several violations of the Uniform Controlled Substance, Drug, Device and Cosmetic Act.*fn1 The evidence against the appellee was seized pursuant to a search warrant issued on April 11, 1975, and was suppressed on July 14, 1975, following a hearing.
The sole issue is whether the facts contained in the affidavit in support of the warrant amounted to probable cause. The affidavit stated: "I, the affiant, have received
[ 242 Pa. Super. Page 257]
information, in person from a confidential informant who wishes to remain anonymous but whose name, address, phone number, social security number, age, current whereabouts, and place of employment I know. Before giving any information the informant was sworn to its authenticity and accuracy and informed that giving false information to the police was an offense punishable by law and this was fully explained to him and he acknowledged that he fully understood this. This informant stated that between the dates of April 6, 1975 and April 10, 1975 he was in the above residence in the presence of [appellant] and that he did witness [appellant] in the possession of a large amount of marijuana and also a number of marijuana plants which [appellant] stated he was going to process and sell. Due to the above information, I consider this informant to be reliable. Because of the above information, I hereby request that a search warrant be issued for the above residence."
The affidavit must be tested in light of Aguilar's two-pronged test. That is, the issuing magistrate must be informed of the underlying circumstances from which the informant concluded that criminal activity was afoot, and the basis for the affiant's conclusion that the informant is reliable. The first prong has been met. The only issue is whether the police procedure below established the informant's reliability: "The final component of the probable cause equation, here involved, is that it must appear reasonably likely that the informer's claim that criminal conduct has occurred or is occurring is probably accurate. Our cases establish that this element is satisfied only if there is reason to believe that the informer is a truthful person generally and that he has based his particular conclusions in the matter at hand on reliable data, . . . for it is not reasonable to invade another's premises on the basis of information, even if it appears quite damning when simply taken at face value, unless there is corroboration of its trustworthiness."
[ 242 Pa. Super. Page 258]
another approach; as long as informants are warned that false swearing is punishable, they are thereby reliable. However, all informants are subject to such penalties whether warned or not. Further, the course from an informant's false statements to his conviction is a long and tortuous one. Statistically, the chances of such a prosecution are almost nonexistent. Even in a situation in which the police fail to discover contraband, the accused may have discarded it in advance of ...