Commonwealth v. Slater

363 A.2d 1257, 242 Pa. Super. 255, 1976 Pa. Super. LEXIS 2080

Opinions

HOFFMAN, Judge:

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.¹ 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 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.” United States v. Harris, 403 U.S. 573, 588-89, 91 S.Ct. 2075, 2084, 29 L.Ed.2d 723 (1971), (HARLAN, J., dissenting opinion).

Ordinarily, prong two is satisfied by police reliance on information supplied in the past which has led to arrests and convictions. Of course, there is always a first time. The police need not discourage a citizen who comes forward with information for the first time. But merely to accommodate the informant, the police are not exempted from testing the reliability of the information. For example, the police can test the reliability by setting up surveillance or acquiring other corroboration; see, Spinelli, supra. Further, the surrounding circumstances may justify reliance; for example, reliance ?nay be justified if the informant’s tip amounts to a declaration against his penal interest. See United States v. Harris, supra.

The Commonwealth suggests that we apply the Harris test. In the instant case, the police fully instructed the informant of possible consequences of giving false information and then placed hihi under oath. The informant then gave his information. We fail to see, however, how the informant’s declaration was against his penal interest. Such a declaration must be an admission that the informant somehow1 participated in criminal activity. Here, the informant admitted only that he was present in appellee’s apartment when he witnessed appellee’s stash of contraband. His mere presence could not subject him to criminal liability. See, e. g., Commonwealth v. Fortune, 456. Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971); Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). Thus, the inforihant’s statement simply cannot be construed as a declaration against penal interest.

Because the informant’s reliability was not proven by any judicially recognized means, the dissent would create 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 police action ; or the accused may not have possessed contraband, but the informant may have given the false information in good faith.

Finally, in the instant case, the police placed the informant under oath and then received his information. That is, the police arrogated the role of the neutral magistrate whose function it is to receive sworn testimony. Such a practice allows the police to validate reliability by administering the oath: that is, on the record, only the oath establishes the informant’s reliability, not the detached review by the neutral magistrate. As such, the practice violates traditional notions of separation of powers. The United States Supreme Court condemned an analogous practice in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The warrant in Coolidge was approved by the State Attorney General, rather than by a judicial officer. The Court rejected the idea that a member of the executive, involved in criminal investigations, could properly authorize issuance of a warrant. Although one step removed from the procedure condemned in Coolidge, the police practice in the instant case suffers from the same infirmity.

Absent some meaningful showing that the informant was reliable, the warrant did not comport with the constitutional requirement of probable cause. Therefore, the lower court properly suppressed the contraband.

Order affirmed.

PRICE, J., files a dissenting opinion, in which VAN der VOORT, J., joins.

1 . 1972, April 4, P.L. 233, No. 64, § 1, et seq.; 35 P.S. § 780-101 et seq.