Appeal from the Order of the Superior Court entered December 2, 2009 at No. 689 WDA 2008, affirming the Order of the Allegheny County Court of Common Pleas entered April 11, 2008 at No. CP-: 02-CR-0009936-2005.
The opinion of the court was delivered by: Mr. Justice Eakin
OPINION IN SUPPORT OF REVERSAL
This Court affirms, by operation of an equally divided vote, the Superior Court's holding that a search warrant is invalid if the affidavit of probable cause included a confidential informant's deliberate misstatement. I believe the trial court relied on inapplicable authority, as did the Superior Court in affirming suppression. Only a fundamental misunderstanding of the warrant process can allow the undoing of a legitimate warrant based on recantation by an informant.
The present informant previously gave police reliable information leading to the arrest of two drug dealers. He told a detective he had recently been in appellee's home, where he observed appellee with large quantities of marijuana. The informant said appellee was a bulk dealer of marijuana, owned firearms, and had a dog. He also described appellee's vehicle. The detective conducted surveillance and corroborated the informant's information regarding where appellee lived, the vehicle appellee used, and that appellee had a dog. The detective prepared an affidavit for a search warrant for appellee's home; the affidavit did not disclose the informant's identity. The magistrate agreed it contained probable cause and issued the warrant. Police executed this warrant and recovered over ten pounds of marijuana and an AK-47. Appellee was charged with possession with intent to deliver and various other offenses.
Appellee moved to suppress the evidence. At the suppression hearing, the defense appeared with the informant and presented him as a witness. Because the informant told the affiant he had been threatened by the defendant after the search, and believing the threat was serious (witness the AK-47), the affiant would not confirm this was the informant. Nevertheless, the witness identified himself as the informant; he had met with defense counsel several times since the search though he had never spoken to counsel for the Commonwealth. The informant testified the affidavit correctly reflected what he told the detective. However, he indicated he had "exaggerated" when telling the officer when he had been in appellee's house and about the amount of marijuana he saw there. The informant said he misled the detective to stop appellee from bothering him about a drug debt. Despite the debt, he testified his knowledge of appellee as a drug dealer was based solely upon rumors.
Pursuant to this testimony, the suppression court found the information the informant provided before the search was false, though the informant himself declined to say it was untrue. The court also found the information was honestly believed by the detective who corroborated parts of it. The court then granted appellee's motion to suppress the evidence obtained from the search. The court did not mention the threat, the fact that the search results verified what the informant originally told the police (his "exaggeration" proved to be not much of an exaggeration, much less a lie), or the curious circumstance of the reunion between informant and accused. Recanted testimony is never deemed to be particularly reliable in any event, much less here, see Commonwealth v. Birdsong, 24 A.3d 319, 327 (Pa. 2011) (quoting Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) ("[R]ecantation testimony is 'exceedingly unreliable.'")), but this is not considered. The entirety of the court's reasoning is one sentence: "Based on Superior Court case Commonwealth v. Clark, 602 A.2d 1323 (1992), this court does grant defendant's Motion to Suppress.." Suppression Court Opinion, 4/11/08, at 1.
The Commonwealth appealed; the Superior Court panel affirmed. Commonwealth v. Antoszyk, 985 A.2d 975 (Pa. Super. 2009). The court stated "we adopt the lead opinion" from Clark. Clark invalidated a warrant where the informant mislead the affiant, but the Clark opinion was the view of only its author - one member of the panel concurred in the result, and the third held the warrant failed for want of independent police corroboration rather than any misstatements.
The Superior Court affirmed "[b]ecause the good-faith exception to the exclusionary rule does not apply in Pennsylvania.." Id., at 976 (citing Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa. 1991)).*fn1 Because Pennsylvania has no good faith exception to the warrant requirement, the court reasoned police cannot assert they acted in good faith in relying upon confidential informants, and Article I, § 8 permits a defendant to attack the veracity of a confidential informant. Id., at 981 (quoting Clark, at 1326-27 (plurality)). Accordingly, the court held:
Article I, Section 8 of the Pennsylvania Constitution protects the citizens of this Commonwealth from material misstatements made deliberately or knowingly in an affidavit of probable cause. The remedy for such a violation, if there is no other independent basis for a finding of probable cause, is invalidation of the search warrant.
Id., at 984 (footnote omitted). Therefore, the Superior Court concluded the trial court properly suppressed the evidence. Id. We granted allocatur to determine whether results of a search must be suppressed where a confidential informant recants information included in the affidavit of probable cause.
First of all, despite the Superior Court's holding and the phrasing of the issue accepted for appeal, this is not a "good faith exception" case. Leon and Edmunds both involved warrants that were not valid because the affidavits there did not contain probable cause. The police there acted in good faith, but based on warrants issued on less than probable cause - warrants that were never valid. Here, there was probable cause and hence a valid warrant. There was no magisterial error in evaluating the content or sufficiency of the affidavit or in issuing this warrant; hence, there is no need to consider the good faith exception of Leon, much less the applicability of Edmunds.
We have held "[p]robable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted." Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)). This test was met. In these types of cases, "the real suppression issue is not the [informant]'s veracity - it is the officer's veracity." Commonwealth v. Brown, 873 A.2d 1275, 1277 (Pa. 2005) (Eakin, J., dissenting); see also Franks v. Delaware, 438 U.S. 154, 171 (1978) (noting when challenging veracity of affidavit, "impeachment [that] is permitted today is only that of the affiant, not of any non-governmental informant");*fn2 Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006) (rejecting challenge to search warrant because defendant failed to show affiant made deliberately false statements or statements with reckless disregard for truth).
Neither is this a case of "material misstatements made deliberately or knowingly in an affidavit." The law of material misrepresentations deals with misrepresentations to the issuing authority, not to the police. It is not unusual, or unheard of, for people to lie to the police - when evaluating information for warrant purposes, the police must give reasons why they believe the instant information is not a lie. They present this to the magistrate - if they lie to the magistrate, any warrant is invalid - but if they were lied to, yet gave reasons to believe ...