Com. v. Chandler
| Decision Date | 25 May 1984 |
| Citation | 505 Pa. 113,477 A.2d 851 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Norma Jean CHANDLER, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. James CHANDLER, Appellant. |
| Court | Pennsylvania Supreme Court |
John C. Pettit, Dist. Atty., William A. Johnson, First Asst. Dist. Atty., Washington, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
These are appellants' consolidated appeals by allowance from an order of Superior Court, 312 Pa.Super. 1, 458 A.2d 204, reversing a Common Pleas order suppressing evidence seized by the State Police in a search of appellant's home. 1 Appellants argue that the Suppression Court correctly suppressed the fruits of a search of appellants' premises because the District Justice failed to issue a search warrant. The Commonwealth contends the District Justice clearly intended to issue a warrant when he took the policeman's oath to the affidavit of probable cause and his failure to sign the order issuing the warrant is a technicality which can be ignored. We hold that both our Pennsylvania Constitution and the federal Constitution require an order by the District Justice, as a judicial officer, and that his jurat on a policeman's affidavit of probable cause is no substitute for the judicial decision our Constitution requires for issuance of a search warrant. In the absence of an order by an independent judicial officer no search warrant could issue. Thus, the State Police's search in this case must be analyzed as one without warrant. As such, it can stand only if exigent circumstances are present. They are not. Indeed, there is not even an effort to show them. Under these circumstances, Common Pleas correctly suppressed the fruits of the search under the federally mandated exclusionary rule. Therefore, we reverse the order of Superior Court and reinstate the order of Common Pleas.
[I]n reviewing a suppression court's ruling the appellate court is bound by factual findings supported by the record. Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); and, they may not substitute their own findings for those of the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977).
Considering the suppression record under that standard, the facts are: Trooper Pompei executed an application for a search warrant and an affidavit on a printed form denominated Search Warrant and Affidavit and presented it to District Justice Tempest on January 27, 1981 at 11:45 p.m. The form of the affidavit substantially complied with Pa.R.Crim.P. 2006. The application recited that the premises to be searched were those of James M. Chandler a/k/a "Jumbo" Chandler and that the items to be seized were narcotics, amphetamines and barbituates. Trooper Pompei's detailed affidavit was based on information received from two confidential informants. Trooper Pompei signed the affidavit and District Justice Tempest merely affixed his jurat to the affidavit on a printed line below large type stating "sworn to and subscribed before me." By doing so he only evidenced the policeman's recitation to him of those facts, under oath. He did not find them to be true nor conclude that they justified a warrant.
The District Justice's jurat was, of course, necessary to complete the affidavit itself. By definition, an affidavit is a statement of facts confirmed by oath before an officer having authority to administer the oath. The jurat is merely the certificate of the judicial officer stating that the affidavit was sworn to and subscribed by the affiant before him. Such a sworn statement before the District Justice or some other person authorized to administer oaths is necessary before the District Justice can consider the facts set forth to in it as evidence of the probable cause required to issue a warrant. See Pa.R.Crim.P. 2003.
Common Pleas determined that the information provided by those informants satisfied the mandates of Aquilar 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 agree with that conclusion. The policeman's affidavit did contain facts which would have supported an independent finding of probable cause and the issuance of a warrant under either the strict Aquilar-Spinelli standard or the more practical standard recently articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), had the District Justice chosen to reach that conclusion. Indeed, appellant does not seriously dispute the Suppression Court's finding on that point. However, this record does not show the District Justice ever reached that conclusion. On the contrary, it shows he never entered an order issuing a warrant.
Beneath the District Justice's signature verifying the affidavit, printed in red bold-face block type are the words "ORIGINAL APPLICATION." By what may be an unfortunate format, the warrant itself is found on the reverse side of the "ORIGINAL APPLICATION" without identification in distinctive type. The printed form for the warrant is divided into two separate warrants, one for day searches and one for night searches. These forms were in substantially the form set forth by Pa.R.Crim.P. 2006. The form of warrant presented to District Justice Tempest is reproduced below:
TO LAW WHEREAS, facts have been sworn
ENFORCEMENT to or affirmed before me by written
OFFICER: affidavit(s) attached hereto from
which I have found probable cause
I do authorize you to search the
premises or person (described on
the reverse side), and to seize
secure, inventory, and make return
according to the Pennsylvania
Rules of Criminal Procedure, the
items described on the reverse side
* *
[ ] This Warrant should be ** [ ] This Warrant should
served as soon as practicable be served as soon as
but in no event later practicable but in no event
than ______________________________ later than _________________________
[ ]A.M. [ ]P.M. ____________________ [ ]A.M. [ ]P.M. _____________________
19__ and shall be served 19__ and may be served
only during daytime anytime during day or
hours of 6 A.M. to 10 night.
P.M.
Issued under my hand Issued under my hand
this ______ day of this ______ day of
______, 19__, at __.M. ______, 19__, at __.M.
o'clock. (Issue time o'clock. (Issue time
must be stated) must be stated)
(SEAL) ____________________________ ______________ (SEAL)
(Signature if Issuing (Signature of Issuing
Authority) Authority)
Mag. Dist. No. _______ Office Address _________________________________________
Phone No. ________ Date Commission Expires ____________________________________
Title of Issuing Authority _____________
* The issuing authority should specify a date not later than two (2) days
after issuance: Pa.R.Crim.P. 2005(d).
** If issuing authority finds reasonable cause for issuing a nighttime warrant
on the basis of additional reasonable cause set forth in the accompanying
affidavits and wishes to issue a nighttime search warrant, only this section
shall be completed. Pa.R.Crim. 2006(b). 2
The day and night warrant forms themselves then include blanks for the District Justice to fill in to show the time within which the warrant must be served as well as a blank for his signature to the warrant itself. The blanks in both of these warrant forms were not filled in and neither warrant form was signed by the District Justice. Trooper Pompei testified that he did not check to see if the warrant was signed. Armed with the blank warrant, Trooper Pompei and two other officers searched the Chandlers' residence and found quantities of controlled substances including talwin, tuinal and marijuana.
District Justice Tempest did not testify at the suppression hearing. We cannot know or infer that the District Justice intended to find probable cause and issue a warrant based on the affidavit and application. However, we do know that he made no record finding of probable cause and that he did not issue an order for a search warrant.
It is not enough, absent exigent circumstances, that a policeman believe the facts he has are probable cause for a search warrant. The people of this state and nation are constitutionally entitled to an independent judicial determination of probable cause before they must open to the policeman's knock at the door in the night. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Moreover, that determination must be made before and not after the search. The written affidavit of probable cause simply insures an accurate record of the verified (sworn) facts the issuing authority had when he made his determination before the event. See Pa.R.Crim.P. 2003(a), quoted post at p. 856, n. 4. Such a prior reduction to a written...
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