Commonwealth v. Milliken

300 A.2d 78, 450 Pa. 310, 1973 Pa. LEXIS 610

• Court: Supreme Court of Pennsylvania
• Decided: January 30, 1973
• Docket: Appeal, 1
• Status: Published

Opinions

Opinion by

Me. Justice Roberts,

Appellant Thomas Eugene Milliken was tried by a jury and convicted of first degree murder. Post-trial motions were denied and appellant was sentenced to life imprisonment. On this direct appeal appellant challenges the constitutionality of a search warrant issued on July 22, 1968,¹ and further contends that the Commonwealth failed to establish a corpus delicti. We find that the issuance of the search warrant comports with constitutional standards and the record supports a finding of a corpus delicti. We affirm.

On July 22, 1968, Detective Barbush, a member of the Harrisburg police force, submitted the following affidavit to the magistrate who ultimately made a finding of probable cause and issued the search warrant: “That on or about the 9th day of July, 1968, an informant namely Allen Lee Ricker, 17 years of age, of 96 North St., John’s Road, Camp Hill, Cumberland County, Pennsylvania, did see the above-described items [the dead person’s alleged identification] at the aforementioned place while in the possession of one Thomas Eugene Milliken, the occupant of the said apartment, which information has been given to me, Detective Kenneth J. E. Barbush, and which I believe to be true and correct. These items are alleged to be the property of the unidentified female individual.” In addition the police under oath informed the magistrate that the individual named in the warrant, Mr. Allen Ricker, had previously led the police to the body of the person allegedly murdered by appellant.

Appellant raises the troublesome question of whether sworn oral testimony by the affiant may validly supplement a written affidavit which by itself does not meet the constitutional standards announced in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and refined in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969). Appellant contends that it was constitutionally impermissible for the magistrate to consider the oral testimony given under oath by the police in determining probable cause. He further argues that absent the sworn oral testimony, the magistrate did not have before him sufficient information from which he could make a finding that the police informant was reliable, a finding explicitly required by Aguilar and Spinelli.

This Court has recognized that the same standards for judging probable cause for a search warrant are applicable for determining probable cause to make an arrest. Commonwealth v. Garvin, 448 Pa. 258, 263, 293 A. 2d 33, 36 (1972); Spinelli v. United States, 393 U.S. 410, 417 n.5, 89 S. Ct. 584, 589 n.5 (1969). We further held in Garvin that “probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest . . . are sufficient to warrant a man of reasonable caution in the belief that tbe suspect has committed a crime.” 448 Pa. at 262, 293 A. 2d at 36.

When the officer’s belief that the suspect has the fruits or evidence of a crime is based upon an informer’s “tip” rather than upon the officer’s personal knowledge or observation, the officer must have two types of information before probable cause is established. First, in order to assure that the “tip” is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect possessed the fruits or evidence of a crime. Second, in order to reduce the possibility that a “tip” meeting the first standard is merely a well-constructed fabrication, the officer must have some reasonable basis for concluding that the source of the “tip” was reliable. Spinelli v. United States, 393 U.S. 410, 415-16, 89 S. Ct. 584, 588-90 (1969) ; Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S. Ct. 1509, 1514 (1964); Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A. 2d 510, 512 (1971).

The argument that a proceeding culminating in the issuance of a search warrant must have all the supporting information reduced to writing is bottomed on the inherent difficulty of reviewing challenged unrecorded oral ex parte testimony. It is of course only too well-recognized that the “passage of time” inevitably causes “memories . . . [to] fade.” Dickey v. Florida, 398 U.S. 30, 42, 90 S. Ct. 1564, 1571 (1970) (Justice Brennan concurring). Without a substantially complete record made contemporaneously with the issuance of the warrant, subsequent review of the partially unwritten proceeding may become tainted by possible additions of relevant information initially omitted but later supplied by hindsight.

Indeed this very problem is demonstrated here. A crucial question at the suppression hearing was whether in determining the reliability of the police informer the magistrate relied on the sworn oral testimony of the affiant. At the hearing, held several months after the issuance of the search warrant, Detective Barbush was initially unable to recall giving any oral testimony whatsoever. The magistrate, while acknowledging the existence of the sworn oral testimony, admitted that his memory was dimmed by the fact that the proceeding was “some time ago.” It would have been far preferable had the proceedings before the magistrate been transcribed, or had the sworn oral testimony been otherwise reduced to writing, or had the police submitted only written and supplemental written affidavits for his consideration.

Despite the obvious desirability of having all the information before the magistrate in writing, we are not persuaded that the affiant’s sworn oral testimony may not supplement his written affidavit and together supply the constitutional basis for the issuance of a search warrant. Appellant has been unable to cite any authority in support of his position and indeed the existing case law is to the contrary. See, e.g., Boyer v. Arizona, 455 F. 2d 804 (9th Cir. 1972); Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Sparks v. United States, 90 F. 2d 61 (6th Cir. 1937) ; Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A. 2d 885 (1966), aff’d, 432 Pa. 627, 247 A. 2d 226 (1968). In the absence of any constitutional or decisional authority or procedural rule making impermissible the procedure here employed, appellant’s claim for relief on this asserted ground- must be rejected. In doing so we nevertheless express our preference for reducing to writing in some acceptable manner sworn oral testimony offered in support of the issuance of the search warrant.

We shall therefore, in exercise of our supervisory powers, formulate by rule of Court² appropriate procedural requirements of a sufficient written record made contemporaneously with the issuance of search warrants.³ Because this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar.

Confining ourselves for a moment to the four corners of the written affidavit, it is manifest that it was insufficient to provide the magistrate with an evidentiary basis from which he could properly conclude that the information given to the police originated from a reliable source. In Agmlar the United States Supreme Court made it quite clear that “the magistrate must be informed of . . . some of the underlying circumstances from which the officer concluded that the [informants’] . . . information . . . [was] ‘reliable.’ ” Id. at 114, 84 S. Ct. at 1514. Here the affidavit sets forth only the informer’s name, unexplicated by any other information in the affidavit. This, by itself, cannot be said to meet the constitutional standards set forth in Spinelli and Aguilar.4 If a police officer’s sworn statement that the informant is reliable is not sufficient basis to establish reliability, see Aguilar, it is difficult to perceive how the mere mention of the informant’s name in the affidavit could possibly satisfy the constitutional requirements of Aguilar and Spinelli5

Although we conclude that the affidavit standing alone was defective, we agree with the trial court’s finding that the sworn oral testimony of the affiant provides the necessary “underlying circumstances” indicating reliability. Here the magistrate was orally informed by police testimony under oath that the named informer had in addition to the information contained in the search warrant given the police additional information which proved to be reliable. Specifically the informer had led the police to the body of an individual allegedly murdered by appellant. We conclude, as did the suppression court, that this sworn oral testimony supplied a proper evidentiary basis for the magistrate’s finding that the information furnished to the police was reliable.

At the conclusion of the Commonwealth’s evidence on corpus delicti appellant demurred. Appellant’s seeond contention is that the trial court erred in overruling his demurrer. We do not agree. “The corpus delicti [in a murder prosecution] consists of proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act. . . . Like other facts, it may be established by circumstantial evidence. . . .” Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A. 2d 369, 373 (1963) (citations omitted) ; Commonwealth v. Maybee, 429 Pa. 222, 239 A. 2d 332 (1968).

Appellant concedes that the Commonwealth sufficiently established that skeletal remains discovered by the police were those of the alleged victim. To satisfy the second requirement that death resulted through criminal agency the Commonwealth offered testimony that when the deceased left her home she was in good health. The Commonwealth also established that a nylon stocking, two inches in diameter and fastened by a double knot, was tied around the deceased’s neck vertebrae. The pathologist who performed the autopsy, although not able to categorically state the cause of death due to the severe decomposition of the body, testified that such a ligature around the neck of a normal person “would kill the person by suffocation, strangulation.” Finally the Commonwealth proved that identification cards and jewelry belonging to the deceased were found in the possession of appellant by the police pursuant to the execution of the search warrant previously discussed.

Appellant argues that the Commonwealth’s proof does not dispel the possibility that the deceased committed suicide. We have held, however, that the Commonwealth’s proof need not exclude suicide. Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A. 2d 369, 373 (1963). The evidence was sufficient to establish corpus delicti, and the court properly overruled the demurrer.

The judgment of sentence is affirmed.

1 Acting pursuant to the search warrant the police discovered certain identification cards and a piece of jewelry belonging to the deceased in appellant’s apartment.

2 Constitution of Pennsylvania, Art. V, Section 10(c) ; see also the Act of July 11, 1957, P. L. 819, §3, 17 P.S. §2086.

3 The promulgation of the written requirement will be accompanied by due notice of its adoption and its effective date. After the effective date of the rule determination of probable cause by a suppression hearing court and an appellate court upon review will be made only from the written record prepared contemporaneously with the issuance of the search warrant.

4 The United States Supreme Court has recently noted that mere disclosure of the informant’s identity would not meet the reliability standards mandated in Aguilar, supra, and Spmelli, supra. In Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921-24 (1972), the Supreme Court upheld a stop-and-frisk based on the information conveyed to a policeman by a known informer, but went on to distinguish the higher and more exacting standards for determining probable cause for a search warrant: “Thus, while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e.g., Spinelli v. United States, 393 U.S. 410 (1969) ; Aguilar v. Texas, 378 U.S. 108 (1964), the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.” (Emphasis supplied) (Justice Rehnquist).

5 It is of no moment that by naming the informer he may therefore be available at the suppression hearing. Probable cause to issue a warrant is determined by a “detached and neutral magistrate” at the time the warrant is issued, not by the possibility of some evidence from an additional witness at some later date in an ex post facto manner. Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 369 (1948) (Justice Jaokson). Nor is it persuasive to suggest that the identification of the informer by name gives the magistrate the opportunity to call the informer before him. This was not done here.