Betrand, In re

• Decision Date: 13 April 1973
• Citation: 451 Pa. 381,303 A.2d 486
• Parties: In re George BETRAND, a minor.
• Court: Pennsylvania Supreme Court

Page 486

303 A.2d 486

451 Pa. 381

In re George BETRAND, a minor.

Supreme Court of Pennsylvania.

April 13, 1973.

Vincent J. Ziccardi, Defender, Thomas C. Carroll, Asst.Defender, Chief, Family Court Div., Stuart H. Schuman, Asst. Defender, Philadelphia, Pa., for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First. Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., J. T. Ranney, Philadelphia, Pa., for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

On January 8, 1971, a pharmacist and his assistant were beaten and robbed by three unidentified males on Germantown Avenue in Philadelphia at approximately 8:00 P.M. Almost six weeks later the police received an anonymous phone call from a youth who said that one of the participants in that robbery was named 'Primo' and that 'Primo' lived in a certain area of Philadelphia. Two days later, appellant, George Betrand, a juvenile, known to the police as 'Primo', was arrested without a warrant. He was taken immediately to the station house and placed in a locked interrogation room where he remained for approximately two hours. A detective subsequently arrived and advised him of his rights by reading from the standard police interrogation card. After approximately one-half hour of questioning, appellant gave an oral statement admitting his involvement in the robbery.

Appellant was charged with robbery, assault with intent to kill, aggravated assault and battery, and conspiracy. He was adjudicated delinquent by the Juvenile Division of the Family Court of Philadelphia and committed to the Youth Development Center South. Following that determination he appealed to the Superior Court which affirmed the adjudication of delinquency. Bertrand Appeal, 222 Pa.Super. 67, 293 A.2d 359 (1972) (Packel, J., dissenting, joined by Hoffman, Spaulding, JJ.). We granted allocatur. Appellant contends that his confession was the fruit of an illegal arrest and was also the product of an involuntary and unintelligent waiver of his Fifth Amendment right against self incrimination. ¹ We reverse and remand.

At this late date it is uncontrovertibly beyond dispute that the Constitution of the United States prohibits the arrest of a person unless the arresting officer has probable cause to believe that a crime has been or is being committed. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); Commonwealth v. Goslee, 427 Pa. 403, 234 A.2d 849 (1967); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Probable cause has repeatedly been held to exist only 'where the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) quoting Carroll v. United States, supra, 267 U.S. at 162, 45 S.Ct. at 288; see McCray v. Illinois, supra; Ker v. California, supra; Commonwealth v. Goslee, supra; Commonwealth v.Ellsworth, supra. See also Commonwealth ex rel. Grano v. Anderson, 446 F.2d 272, 273 (3d Cir. 1971). ²

It is also well settled that even hearsay information is sometimes sufficient to establish probable cause. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, supra. However, when, as here, probable cause for a warrantless arrest ³ is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional 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 participated in the robbery. 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, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); cf. Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).

Applying the Aguilar-Spinelli standards here it is patently clear that the informant's tip, the Sole basis for appellant's arrest, was insufficient to establish probable cause. First, the tip came from an unidentified informant, who supplied no indication that he had any personal knowledge of the crime whatsoever. His information was completely conclusory with no underlying facts or circumstances to bolster his report. The anonymous caller merely told the police that the suspect's name was 'Primo' and indicated where 'Primo' lived--nothing more. Thus the first requirement of Aguilar-Spinelli--underlying circumstances supporting an informant's conclusion--was clearly absent here. ⁴

Secondly, as appellant succinctly points out 'the record is devoid of underlying circumstances showing (any) reason to believe that the informant himself was a credible person.' Thus the second aspect of the Aguilar-Spinelli test is likewise unfulfilled.

The Commonwealth urges that probable cause was established here because the 'anonymous telephone call contained significant Inner indicia of reliability, important details of which were corroborated by the arresting officers' own knowledge.' Apparently the Commonwealth is contending that the informant was Inherently reliable since he was an 'anonymous citizeninformant' who was 'too scared' to reveal his identity to the police. Such an informant, argues the Commonwealth, is more reliable than 'the typical stoolie.' However, the Commonwealth here engages in sheer conjecture, as it admittedly has no evidence that the unknown informant was either a 'typical stoolie' or a 'citizen-informant'. It thus has absolutely no indication of the informant's reliability.

Next the Commonwealth contends that the tip was corroborated because the officers knew that 'Primo' was a gang member and that he lived near the scene of the robbery. However, such information is certainly not sufficient independent corroboration, but simply the grossest form of unsupported speculation and guilt by association.

A similar disingenuous argument by the Commonwealth was categorically rejected by this Court in Commonwealth v. Goslee, supra. There the Commonwealth argued it had probable cause to arrest appellant for burglary because he was a known burglar and lived near the scene of the crime. This Court held that such information at best amounted to mere suspicion. We there said that '(t)o sustain this conviction we would be forced to countenance a proposition that presence plus a prior conviction is sufficient for arrest--a proposition we cannot accept.' Commonwealth v. Goslee, supra, 427 Pa. at 407, 234 A.2d at 851. See Commonwealth v. One 1958 Plymouth Sedan, 418 Pa. 457, 211 A.2d 536 (1965).

Thus this record reveals only an anonymous, unsubstantiated tip, knowledge that the suspect was a gang mbmber, and that he lived near the scene of the robbery. This is clearly constitutionally insufficient to establish probable cause and the arrest was therefore illegal. Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).

The next question to be resolved is whether appellant's oral statement was so tainted by the illegal arrest as to be inadmissible. The seminal case on this issue is Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), where the Supreme Court announced that the relevant test is:

'. . . 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. " (Citation omitted).

See Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106 (1972); Commonwealth v. Rowe, 445 Pa. 454, 282 A.2d 319 (1971).

The Supreme Court also noted that the challenged evidence may be purged of the primary taint only 1) if it results from "an intervening independent act of a free will," Wong Sun, supra, 371 U.S. at 486, 83 S.Ct. at 416, or 2) if the connection between the arrest and the evidence (confession) has 'become so attenuated as to dissipate the taint. " Id. at 491, 83 S.Ct. at 419 (citation omitted).

In Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966), the Third Circuit noted two specific factors of major significance in determining the relationship between an illegal arrest and subsequent confession:

'(a) the proximity of an initial illegal custodial act to the procurement of the confession; and

'(b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest.'

This Court, in Commonwealth v. Bishop, 425 Pa. 175, 183, 228 A.2d 661, 666, cert. denied 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967), subsequently explained the Wong Sun test this way:

'(I)f the connection between the arrest and the confession is shown to be so vague or tenuous 'as to dissipate the taint' Or 'sufficiently an act of free will,' the confession is admissible, despite the illegality...