Appeal From The Order of Superior Court entered September 21, 1984, at No. 2980 Philadelphia 1982, Reversing the Order of the Court of Common Pleas of Philadelphia County entered September 24, 1982, at Nos. 82-05-3232-3237, Criminal Trial Division, 334 Pa. Sup[erior Ct. 374,
Nix, C.j.,*fn* and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., files a dissenting opinion in which Papadakos, J., joins. Zappala, J., files a dissenting opinion.
The issue that confronts us here is whether in a criminal case the Commonwealth, on the ground of protecting the anonymity and safety of a confidential informant, has the right to exclude defense counsel from an in camera inquiry into the veracity of search-warrant recitals alleging the past reliability of the informant.
On April 19, 1982, two men robbed Korman's Discount Store on Ridge Avenue in Philadelphia, and fled with several thousand dollars worth of jewelry from the establishment. During the robbery one of the men had brandished a shotgun. The next day, Detective John Knowles of the Philadelphia Police Department obtained a search and seizure warrant to conduct a nighttime search of premises occupied by one Alvin Miller ("Miller"), the appellant herein.
In obtaining the warrant, Detective Knowles stated in the affidavit that he had received from an unnamed informant a communication which implicated Miller in the robbery. The affiant also recited that past information from the same informer had led to four previous arrests and the recovery of stolen property. The full text of the affidavit for the warrant was as follows:
On Monday 4-19-82 Kormans Discount 2163 Ridge Ave was robbed by two negro males at approximately 4:10PM. This robbery was committed point [sic] of shot gun. When the two males were unable to gain entrance to the safe they broke the glass of a display case and removed
several thousand dollars worth of jewelry[.] These items are discribed [sic] above as items to be searched for. On Monday 4-19-82 the affiant recieved [sic] a telephone call at about 7:25PM from a person who has given the affiant information in the past. The affiant met the informant and after having him identify a photo of the above named male the informant directed the affiant to the actors [sic] residence. The informant went on to say that earlier that day (4-19-82) he had been told by a Rodney Brooks that he and another male were "going to get down." A short time after this the informant saw Rodney Brooks in the company of the above named actor and was asked if he wished to buy any jewelry. Both the actor and Rodney Brooks had a large quanity [sic] of jewelry on them. He further stated that he heard both Brooks and Miller tell another male that they had robbed the Korean store at 22nd and Ridge and that is where the jewelry came from. The affiant noted that the owners of Kormans Discount are Korean and that the actor fits the discription [sic] of one of the males. This discription [sic] was given by the Korean owner and a negro employee.
CREDITABILITY: [sic] The affinat [sic] notes the following to attest to the creditability [sic] of the informant: On Thursday 4-15-82 the informant gave the affiant information leading to the arrest of two males involved in a burglary and an auto theft. This information also led to the recovery of the stolen motor vehicle. The affiant then contacted Det [sic] Louis Green # 9179 who stated that he had received information from the same informant that had led to two arrests in the past 4 weeks and in one of the cases property was recovered.
On Monday 4-19-82 the affiant again spoke to the informant at 10:30PM and was advised that Alvin Miller had just been seen by him on the street and he was still wearing some of the jewelry.
Based on the affiants [sic] belief that the above statements are true and based on reliability of the informants [sic] past information the affiant rspectfuly [sic] requests
the issuence [sic] of this warrant to facilitate the recovery of the stolen goods.
The affiant further requests that a night time search be permitted due to the ease with which the stolen property can be moved or disposed of. All of the listed items except for the shotgun can be secreted on the body of one individual and removed from the property.
Upon execution of the warrant at Miller's residence the police found a sawed-off shotgun, and numerous articles of jewelry later identified as having been taken in the robbery. Miller was at home when the police arrived, and was placed under arrest upon their completion of the search. He was subsequently charged with Robbery, Theft, Receiving Stolen Property, Possession of an Instrument of Crime, Simple Assault, and other offenses arising from the robbery at Korman's Discount Store.
Prior to trial Miller's attorney filed a written motion to suppress the physical evidence seized at the defendant's home, asserting that the search warrant had been "issued unlawfully or executed unlawfully." At the ensuing hearing on the motion, defense counsel orally amplified the suppression grounds by further contending that the affidavit for the search warrant did not recite adequate indicia of the informant's reliability and thus did not set forth probable cause for the search.
In support of the suppression motion, defense counsel sought to challenge the veracity of Detective Knowles' recitals in the search-warrant affidavit relative to the reliability of the informant. Although counsel did not seek to learn the identity of the informant, he did attempt to elicit from Knowles, on cross-examination, the names of the persons anonymously referred to in the affidavit as having been previously arrested on the strength of "tips" from the informant. Detective Knowles refused to disclose the names of the prior arrestees, saying that to do so would, under the circumstances, also result in revelation of the informant's identity and thus endanger the latter's life.
In response to the Detective's refusal to make the disclosure sought, defense counsel proposed that the names of the prior arrestees be given in camera, and that he proceed with his inquiry there, beyond the presence of the accused. Defense counsel also stated that he would not tell his client of any of the in camera disclosures made by Knowles. The prosecution countered by arguing that, because the disclosure sought by the defense would compromise the safety of the informant, the in camera inquiry should be made by the court, to the exclusion not only of the defendant but also of defense counsel.
The hearing court agreed that the inquiry should be conducted in camera; but, before ruling on the prosecution's motion for the exclusion of defense counsel, the court instructed Detective Knowles to set forth the particulars of his fear for the informant's safety. Knowles then proceeded to give the following evidence: He testified that the informant, besides having directed the police to Miller for the robbery of the discount store, and besides having given information relative to the four prior arrestees anonymously referred to in the affidavit for the search warrant, had also given the police information which led to Miller's arrest for a separate, unrelated shooting incident. Knowles further stated that a "tip" from the same informant had led to the arrest of Miller's brother in yet another case. According to Detective Knowles the informant, on at least five occasions after the arrest of Miller for the robbery of Korman's, had given the police information leading to other arrests for various criminal offenses. Knowles next testified that all of the arrestees he had referred to lived within three square-blocks of the informant, and that the informant had daily contact with their families. Because of this latter circumstance, Detective Knowles opined that disclosing the names of too many of the arrestees would enable someone to conclude that the informant was some particular neighborhood person who was commonly known to the arrestees -- and thereby deduce his identity.
The court expressly credited Knowles' assertion that if Miller or others from the defendant's neighborhood learned the names of the prior arrestees referred to in the affidavit, the informant's life would be severely imperiled. Nevertheless, the court concluded, as defense counsel had argued, that under Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), the defense had the right to know the names of those prior arrestees for the purpose of testing the veracity of the probable cause recitals in the affidavit. Observing that defense counsel had made a commitment not to reveal any names he learned of in camera, the hearing court ruled that Detective Knowles had to make an in camera disclosure to defense counsel of the names in question.
The court further ruled that, should Knowles refuse to make the disclosure to or in the presence of defense counsel, all of the Detective's testimony relative to the issue of probable cause would be stricken from the record. In view of that ruling, the prosecution offered to provide defense counsel with the names of two of the four arrestees referred to in the affidavit. The defense rejected that offer, and insisted upon being given all four names. When Detective Knowles, in violation of the court's ruling, still refused to make the disclosure, the court ordered his testimony stricken -- and granted the motion to suppress all evidence seized at Miller's residence pursuant to the search warrant. The Commonwealth took an immediate appeal to the Superior Court from the order of suppression.
The Superior Court, 334 Pa. Super. 374, 483 A.2d 498 (1984), reversed the suppression order and directed that the matter be remanded for a new hearing, holding that the hearing judge erred in instructing the prosecution to disclose to defense counsel the names of the prior arrestees. Although the Superior Court concluded that defendants have, as a general rule, the right to test by cross-examination the veracity of search warrant recitals of probable cause, the further conclusion was reached that such a right was, in the instant case, outweighed by the danger posed to the informant's safety. In this regard, the Superior Court
held that the in camera inquiry as to the identities of the prior arrestees should have been conducted by the hearing judge beyond the presence of the defendant and his counsel, but with the defense having the right to make an advance submission of questions to the judge. Under that procedure the veracity of the search warrant's recitals about the informant's history of reliability would be tested solely by the hearing judge, who would thereafter render to the defense a "general report" of his findings.
Such a procedure, in the view of the Superior Court, has the virtue of preserving the anonymity of the prosecution's informant and, at the same time, affording to the defendant a judicial inquiry into the veracity of the affiant's recitals about the informer's past reliability. After observing that the described procedure has been adopted in other jurisdictions,*fn1 the Superior Court negated the applicability of Commonwealth v. Hall, supra, by reading that case as not presenting circumstances dangerous to the life of the informant. The reversal of the suppression order led the defendant ...