Com. v. Garvin

• Decision Date: 28 June 1972
• Parties: COMMONWEALTH of Pennsylvania v. Benjamin GARVIN, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 33

293 A.2d 33

448 Pa. 258

COMMONWEALTH of Pennsylvania v. Benjamin GARVIN, Jr., Appellant.

Supreme Court of Pennsylvania.

June 28, 1972.

Neil Leibman (Submitted), Philadelphia, for appellant

Arlen Specter, Dist. Atty. (Submitted), Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Division, Philadelphia, for appellee.

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

OPINION

NIX, Justice.

Benjamin Garvin, Jr., was arrested in Philadelphia and charged with aggravated robbery and burglary. On April 24, 1970, after waiving a jury trial, he was convicted of both charges and sentenced to concurrent terms of imprisonment of not less than two years nor more than twenty years. Post-trial motions were denied and on appeal the Superior Court affirmed per curiam without opinion. This Court granted allocatur.

On August 14, 1969, at about 1:30 P.M., Mrs. Ferro, the owner of a beauty salon, was in her shop with her friend, Mrs. Maloney, when the appellant and his accomplice, Thomas Leging, entered and announced their intention of robbing the two ladies. While the intruders were in the shop, Leging produced a gun to support their demands for money and Garvin struck Mrs. Maloney, knocking her to the floor, and removed $68.00 from her purse. The Commonwealth's testimony established that the two men were in the presence of the victims for approximately five mintues, the lighting conditions were good and the ladies had ample opportunity to observe both men. Shortly after the men fled the police apprehended Leging, who subsequently entered a plea of guilty in a separate proceeding.

The first assignment of error was the lower court's refusal to suppress the identification evidence which they contended to be the fruits of an illegal arrest. This challenged arrest of Garvin occurred approximately three weeks later on September 4, 1969, when Officer Covotta, a member of the Philadelphia Police Department, received information by telephone as to the whereabouts of the appellant. He immediately proceeded to the designated location and placed him under arrest. After taking Garvin into custody, Officer Covotta took him directly to the beauty salon where Mrs. Ferro identified him as the other man in the holdup. Both Mrs. Ferro and Mrs. Maloney made positive in-court identifications of Garvin at the trial.

It is significant that there has been no objection raised by the appellant to the manner in which the out- of-court confrontation with Mrs. Ferro was conducted or the absence of counsel at that time. Further, the request for suppression of the identification was made without distinction between the in-court and out-of-court identifications and was predicated solely on the theory that each was a fruit of an illegal arrest. Therefore, the issue as framed is whether the arrest was illegal and if the arrest is determined to have been illegal, whether the subsequent identification was tainted by that illegality.

The legality of an arrest without a warrant must depend upon the presence of probable cause. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). In Bishop, this court held that probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime, 425 Pa. at 181, 228 A.2d at 664--665. See also, Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968).

A review of the record in this case forces us to conclude that the arresting officer did not possess sufficient knowledge to make a determination as to the reliability of the information received. The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), mandated that before issuing a warrant a magistrate was required to be supplied with sufficient evidence which would permit him to make an independent judgment of the informant's reliability. Accord, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1962). Although Aguilar involved a search warrant, the Supreme Court has subsequently stated in a discussion of Aguilar's standards that the judgment required of a magistrate in passing on the validity of a search warrant is basically the same as that involved when an arresting officer is determining probable cause for an arrest without a warrant. Spinelli v. United States, 393 U.S. 410, 417 & n.7, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Specifically, the Supreme Court has held that 'less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer's probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment.' Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971).

The pertinent testimony in the instant case revealed that Officer Covotta of the Philadelphia Police Department received a telephone call at approximately 2:40 P.M. on September 4, 1969. The call was from an informant who was known to the officer and who had supplied him with information during the past five years leading to six arrests and six convictions. However, with regard to this particular call, the record is contradictory and inadequate as to what portion of the information had been obtained by the informant's personal observation, if any, and what portion had been received by the informant from a third person who sought anonymity to avoid retaliation. The requirement of a determination of the trustworthiness of the source of the information cannot be met solely because it is channelled through an informant known to be reliable. While it may properly be assumed that the informant passed upon the reliability of the third person supplying the information to him, the law makes it most clear that it is not his judgment to make. As the Supreme Court in Aguilar, supra, did not permit the officers to make the determination for the issuing authority we cannot permit the officer in a warrantless arrest to delegate his responsibility to the informant. To accept without question the messages of alleged eyewitnesses relayed through informants would be to totally disregard the Supreme Court's mandates. From the information received in the phone conversation, the officer was only aware that an unknown third person, who allegedly witnesses some portion of the robbery, identified one of the two participants as a man who was then walking on a particular street two blocks from the district at the time of the call. ¹ When the officer arrived at the specified location there was nothing about the behavior of the appellant which would have furnished a basis for taking him into custody, and even though the record indicated the officer had been furnished with an identification by the victims, there is no testimony to suggest that he considered this information when he approached the appellant. On this record we find that the arrest of the appellant was illegal.

Although we agree with appellant as to the illegality of the arrest we must disagree with his contention that the identifications must be suppressed. No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.

In discussing the scope of the effect of the prophylactic exclusionary rule where there has been an unlawful invasion by the Government the United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), stated: 'The exclusionary rule has traditionally barred from trial physical, tangible material obtained either during or as a direct result of an unlawful invasion.' 371 U.S. at 485, 83 S.Ct. at 416. ² Significantly, the Supreme Court made it clear that an illegal arrest does not bar all evidence subsequent to that arrest when it concluded: 'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case 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.'' 371 U.S. at 487--488, 83 S.Ct. at 417. The Supreme Court further recognized that the evidence should not be excluded when 'the connection between the arrest and the . . . (evidence obtained) had 'become so attenuated as to dissipate the taint.'' 371 U.S. at 491, 83 S.Ct. at 419.

In those cases where the exclusionary doctrine has been applied the questioned evidence derived so immediately from the unauthorized arrest that its relationship to the illegality was readily apparent. To fail to impose sanctions in those instances would 'leave law-abiding citizens at the mercy of the officers' whim or caprice.' Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). When, however, we are concerned with identification evidence where, as here, the testimonial evidence did not derive from 'exploitation'...