No. 144 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Schuylkill County dated Sept. 13, 1976, in the Criminal Trial of Commonwealth v. Francis Purcell, No. 283 May Term, 1976.
Frank Robert Cori, Orwigsburg, for appellant.
Charles A. Bressi, Jr., Assistant District Attorney, Pottsville, with him Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Jacobs and Cercone, JJ., concur in the result. Watkins, President Judge, and Van der Voort, J., dissent. Price, J., did not participate in the consideration or decision of this case.
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Several issues have been argued but the only one that need be considered is the validity of the search warrant.
The search warrant was issued on the following affidavit of probable cause:
Being advised by a female wandering on the street in a dazed condition, and after walking, notified the police of a address of which she had come from, thereby viewing a marijuana plant on the window sill, and believing they having possession of additional controlled substance.
This affidavit is nonsense. Of course we must read a warrant in a common sense way, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); but common sense cannot transmute nonsense into sense. Any issuing authority of the least independence of mind, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), would have said to the affiant, "I can't make head or tail of this." That is what we should say. The law is not weakened but made stronger when it admits the obvious.
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A skeptic will say that what is obvious may nevertheless not be correct. Let us therefore parse the affidavit.
"Being advised by a female wandering on the street in a dazed condition . . . ." There is nothing ambiguous about this. True, it has no subject; but also true, the subject is unmistakably implied: "[I, the undersigned affiant], being advised . . . . [etc]."
"And after walking . . . ." Here one senses trouble. Who did the walking? The dazed female or the affiant? Rules of grammar suggest the affiant: "I, the undersigned affiant, being advised . . ., and after walking . . . ." Here, however, we had better not rely too much on the rules of grammar, so let us read on.
"And after walking, notified the police of a address of which she had come from . . . ." Does this mean that after walking, the affiant notified the police? Or does it mean that after walking, the dazed female notified the police? Who is referred to by "the police"? The affiant is a police officer. Does he mean that he notified the police, or that the dazed female, after walking, notified him as a member of the police? Perhaps it will help if we consider what the police were notified of: "a address of which she had come from." The dazed female is the person who would have known the address she had come from. It therefore seems fair, or at any rate possible, to read the affidavit as saying: "I met a female wandering on the street in a dazed condition. After she and I had walked together for awhile, she told me the address she had come from." So far, so good; perhaps after all the affidavit is not nonsense?
"Thereby viewing a marijuana plant on the window sill, and believing they having possession of additional controlled substance." With this, any hope of making sense of the affidavit vanishes.
Who saw the marihuana plant on the window, and who believed they had more marihuana? There are a number of possible answers to these questions, which is to say, a
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number of possible interpretations of the affidavit. Of these possibilities, perhaps the most obvious are these three: (1) The affiant saw the marihuana plant, and having seen it, he believed that they (the persons living at the address where he saw the plant) had more marihuana; (2) The dazed female told the affiant that while she was at the address she had come from, she had seen the marihuana plant, and that therefore she believed that they (the persons living there) had more marihuana; or (3) The dazed female told the affiant that while she was at the address she had come from, she had seen the marihuana plant; having received this information, the affiant believed that the persons living there had more marihuana. The difficulty is that there is no way of choosing one of these possible interpretations in preference to either of the others. That is: Each interpretation assumes that a certain event occurred, the assumed event being different for each interpretation, but nothing is said in the affidavit on the basis of which one can choose one assumed event in preference to another assumed event.
Suppose one wishes to test the first possible interpretation, i. e., that the affiant saw the marihuana plant, and having seen it, he believed that the persons living there had more marihuana. The event that this assumes is that after the affiant was told the address by the dazed female, he went to the address and saw the plant. Perhaps he did. However, nothing is said in the affidavit that warrants this assumption. In fact, one might well argue that if anything, the affidavit contradicts the assumption: If the affiant had gone to the address, would he not have said so in his affidavit?
If the only way the affiant could have learned of the marihuana was by going to the address himself, perhaps we could assume that in writing the affidavit he had inadvertently omitted saying that he had gone to the address. Here, however, it is plain that that is not the only way the affiant could have learned about the marihuana; more than that, it is not even the most likely way. The most likely (or, at least, an equally likely) way is the way assumed by the
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second and third of the possible interpretations of the affidavit, i. e., that the dazed female told him that while she had been at the address she had come from, she had seen the marihuana plant.
Now suppose that one discards the first possible interpretation (for example, on the reasoning that if the affiant had in fact gone to the address, he would have said so in his affidavit), and undertakes to choose between the second and third of the possible interpretations. Again, frustration follows directly. The second interpretation assumes that the dazed female made two statements to the affiant: that she had seen the marihuana plant at the address she had come from; and that she believed the persons who lived there had more marihuana. The third interpretation assumes that the dazed female made only the first of these two statements to the affiant, and that then, on the basis of it, the affiant decided that the persons living at the address she had come from had more marihuana. There is no way of choosing between these two different assumed events: it is just as likely that the dazed female made two statements to the affiant as that she made one.
I should have thought it enough to show that the affidavit was nonsense, and that no matter how we read it we cannot tell what events the affiant intended to describe. Since, however, this court is not in complete agreement let us consider the arguments advanced by the respective parties.
the affidavit in the instant case indicates that some unidentified person, walking along the street in a dazed condition advised the police that she had come from a place where she had seen a marihuana plant on the windowsill and believed that the people at this place possessed additional controlled substances.
So interpreted, appellant argues, the affidavit must be held insufficient.
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It will be observed that appellant's interpretation of the affidavit is the second of the three possible interpretations that have been discussed above. If for the sake of discussion we accept this interpretation as correct, it does indeed follow that the affidavit must be held insufficient.
Generally speaking, affidavits for search warrants are one of two sorts, depending on the sort of information they contain. (Of course, a given affidavit may be a combination of the two.) The first sort of affidavit is one in which the affiant police officer says that he has seen an event. The second sort of affidavit is one in which the affiant police officer says that although he has not himself seen the event, some one else has told him that the event has occurred. The second sort of affidavit is what is being discussed here: on appellant's interpretation of the affidavit, the affiant did not himself see marihuana inside appellant's residence but was told by the dazed female that she had seen it there.
Before a warrant may issue on the second sort of affidavit the issuing authority
must be informed of some of the underlying circumstances from which the informant [the dazed female] concluded that the narcotics [marihuana] were where he [she] claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citation omitted], was "credible" or his information "reliable" [footnote omitted].
Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).
In other words, the issuing authority must by reference to the information in the affidavit be able to answer two questions: (1) Do I have enough information to warrant the belief that the informant could know what the officer says she told him she knew? And (2) If I do have enough such information, do I also have enough information to warrant the belief that she did know it?
Here there is not enough information in the affidavit to answer either question. True, the informant could know
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there was a marihuana plant at appellant's residence, if she had come from there, and if she knew what a marihuana plant looked like. However, there is nothing in the affidavit to show that she did know what she said she knew. Indeed, the affidavit said she was "wandering on the street in a dazed condition." What does "dazed" mean? Even assuming that the "dazed female" knew the address she had come from -- and plainly, she might not have if she were sufficiently "dazed" -- still, there is not a single fact recited in the affidavit to warrant the belief that she knew what a marihuana plant looked like.
The Commonwealth says that
[if] the affidavit is read in a common sense manner, [citation omitted], then it can be seen that the police are the people who viewed the marihuana plant on the window sill and not the girl. The affidavit does not say that this female viewed the marihuana plant on the window sill. The affidavit indicates that the viewing of the marihuana plant came after they were informed by the girl from where she had come, there by giving further support to the fact that it was the police who saw the marihuana plant. If the language, "Thereby viewing a marihuana plant on the window sill," is read in conjunction with the language, "and believing they having possession of additional controlled substances," it can be seen that the police are reciting this information, not the girl.
Commonwealth's Brief at 11-12.
Elsewhere in its brief the Commonwealth says:
[T]he affidavit shows more than just receiving information from a "credible person." The police saw some one on the street, a female citizen, they knew to whom they were speaking, and she was in a dazed condition. She then informed the police from where she had come. Certainly the police had a right to investigate the situation, and to see after her directions, from where she exactly did come. The police then went to the apartment, and it was
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they, not her, who viewed the marihuana on the window sill. We then have direct police observation of criminal activity.
The lower court accepted this interpretation of the affidavit. Thus in its opinion the court says:
Here, testing the affidavit in accordance with the above principles of law [the court has just cited such cases as United States v. Ventresca, supra ], it is clear the police themselves observed the criminal activity when they saw a marihuana plant on the window sill of defendant's premises. From this observation, they could reasonably infer that the owner and occupant of the building had in his possession additional controlled substances . . . .
The defendant erroneously attempts to make this test [of Aguilar v. Texas, supra ] applicable . . . . However, the test applies only where information or statements concerning the criminal activity is obtained from an informant. Here the affiant obtained no information of criminal activity from the "dazed" female. Her only participation in the incident was that the police observed her on the streets of the borough in a dazed condition and she pointed to the building from which she had come. It was at this point that the police themselves observed a marihuana plant on the window sill, the essence of the criminal activity involved, and based on this information, which they themselves observed, they then proceeded to obtain a search warrant. Therefore, the two-pronged test [of Aguilar ] has no application to this case.
Slip Opinion of Lower Court at 2-3.
These statements by the Commonwealth and the lower court require two responses.
The reader will no doubt have observed that the Commonwealth's and the lower court's interpretation of the affidavit
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is the first of the three possible interpretations that have been discussed above. Whatever else may be said of this interpretation, it may not be said to be "clear." The Commonwealth and the lower court have made it clear by asserting that certain events occurred, and then reading the affidavit as though it described those events. The fallacy in this approach is that there is nothing in the affidavit that could persuade an independent issuing authority that the asserted events really did occur. Thus, the Commonwealth asserts that the police "knew to whom they were speaking." How does the Commonwealth know that this is what happened? More to the point, how could the issuing authority know it? There is nothing in the affidavit to suggest it. The lower court asserts that a somewhat different event occurred. Thus it says that "the affiant obtained no information of criminal activity from the 'dazed' female. Her only participation in the incident was that the police observed her on the streets . . . and she pointed to the building from which she had come. It was at this ...