Com. v. Hall

• Citation: 451 Pa. 201,302 A.2d 342
• Parties: COMMONWEALTH of Pennsylvania v. William HALL, Appellant.
• Decision Date: 16 March 1973
• Court: Pennsylvania Supreme Court

Page 342

302 A.2d 342

451 Pa. 201

COMMONWEALTH of Pennsylvania v. William HALL, Appellant.

Supreme Court of Pennsylvania.

March 16, 1973.

Rehearing Denied April 18, 1973.

John W. Packel, Asst. Defender, Michael L. Levy, Asst. Defender, Chief, Juvenile Div., Jonathan Miller, Asst. Defender, Chief, Appeals Div., Vincent J. Ziccardi, Defender, Philadelphia, for appellant.

Steven Goldblatt, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Arlen Spector, Dist. Atty., for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

Appellant William Hall was tried nonjury in the Common Pleas Court of Philadelphia and convicted of possession and use of narcotic drugs. Posttrial motions were denied and appellant was sentenced to a term of imprisonment of not less than forty days nor more than twenty-three months. The Superior Court affirmed the judgment of sentence, Commonwealth v. Hall, 219 Pa.Super. 760, 281 A.2d 345 (1971), and we granted allocatur. For reasons which follow, we remand for another suppression hearing.

Prior to trial appellant made a timely motion to suppress certain evidence in accordance with Pa.R.Crim.P. 323(b), 19 P.S. Appendix. After an evidentiary hearing the motion to suppress was denied. It is the scope and result of that suppression hearing which forms the primary basis for this appeal. ¹

The suppression hearing focused upon the validity of a search warrant issued June 14, 1970, and executed at 1:00 A.M., June 15, 1970. The execution of the warrant resulted in the police uncovering a small quantity of narcotic drugs in appellant's possession. The Commonwealth readily admits that the possession of these drugs was indispensable in obtaining appellant's conviction. In applying for the warrant the police officer-affiant alleged that at a specified apartment narcotic drugs in significant quantities were being sold. The source of the information, according to the affidavit, was an informant, whose identity the police have not disclosed. See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966).

To establish the reliability of the information received from the unnamed informer, 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), the affidavit alleged that in the past two years the police had received information from that informant in at least five cases, three resulting in convictions and two still pending. Based on the assertions contained in the affidavit, including the apparent establishment of the informant's reliability, the magistrate determined that controlling probable cause standards had been satisfied and issued the warrant. Appellant concedes that the language on the Face of the warrant recites probable cause.

During cross-examination of the police officer-affiant at the suppression hearing defense counsel asked for the names of those individuals previously arrested as a result of information received from the unnamed informants. ² The purpose of the question was to explore the veracity of the facts recited in the affidavit supporting the warrant. Counsel expressly disavowed any intention of ascertaining the identity of the informant, and, to further protect the informant's anonymity, offered to conduct the cross-examination in camera. ³ The Commonwealth's objection to the question was sustained and the suppression judge ultimately found the evidence seized pursuant to the warrant admissible. It is the refusal of the hearing judge to permit this cross-examination, seeking to determine the reliability of the unnamed informant, that is alleged as error.

The threshold question is whether the veracity of facts establishing probable cause recited in an affidavit supporting a warrant can be challenged and examined at a suppression hearing. Indeed, such facts may be so challenged. In Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970), this Court sustained a challenge to a search warrant when it was later established that the police officer-affiant knowingly falsified a material statement in the affidavit supporting the warrant. In so holding this Court, pertinently noted:

'To rule otherwise would permit the police in every case to exaggerate or to expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.'

Id. at 337--338, 263 A.2d at 444.

As numerous state and federal courts have recognized, ⁴ the right of a defendant to challenge the veracity of facts recited in a warrant is Not premised on an assumption of perjury by law enforcement officials:

'Although we have repeatedly stated that 'outright perjury by government agents is not a common occurrence,' . . . we by no means foreclose the possibility that, in the appropriate circumstances, a hearing should be held to establish the veracity of sworn allegations in an affidavit which is adequate on its face.'

United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967) (citation omitted).

Rather, the right to challenge the truthfulness of recitals in a warrant follows from the command of Aguilar-Spinelli that the magistrate make a 'detached and objective determination' of probable cause. Commonwealth v. D'Angelo, supra, 437 Pa. at 338, 263 A.2d at 444. If a magistrate is furnished, and reviews falsified averments, he is effectively '(precluded from making) a detached and objective determination.' Id. ⁵ As the New York Court of Appeals observed:

'Modern thought which produced the decision in Mapp v. Ohio (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) would make incongruous any holding that a search warrant is Beyond attack even on proof that the allegations on which it was based were perjured.' (Emphasis added.)

People v. Alfinito, 16 N.Y.2d 181, 185, 264 N.Y.S.2d 243, 246, 211 N.E.2d 644, 646 (1965).

The Commonwealth rather reluctantly concedes this point, ⁶ but contends that the attempt here to test the veracity of the warrant must fail because appellant did not specify Prior to the hearing percisely which part of the warrant was inaccurate. The Commonwealth's position, reduced to its essence, is that while appellant may have the right to challenge the veracity of facts recited in a warrant, he may not do so without first showing the potential falsity of those facts.

We must reject such an unduly restrictive interpretation of Commonwealth v. D'Angelo, supra. Such an interpretation would virtually emasculate the teaching of D'Angelo that facts supporting a warrant may be shown to be false or misleading.

Here the pivotal issue at the suppression hearing was the reliability of the information attributed to the unnamed informer. If the informer was reliable, the search warrant was issued with probable cause. If the informant was proven to be without reliability, the warrant was improperly issued. ⁷ A mere assertion to the magistrate that the informer was 'reliable' does not satisfy the Aguilar-Spinelli test. See Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971). Recognizing that fact, the police officer-affiant gave the magistrate 'underlying facts,' see Aguilar, seeking to establish the informant's reliability, i.e., that the informer 'has given me information of this type in the past, which has resulted in more than 5 arrests and 3 convictions.'

However, the allegation of '5 arrests and 3 convictions' resulting from an unnamed informant's earlier information is an assertion that is impossible for a defendant to explore prior to the suppression hearing, and is clearly a proper subject for inquiry there. Moreover, even discovery under Pa.R.Crim.P. 310 would not gain a defendant either the desired information or the opportunity to challenge the assertion of previous reliability by the affiant. Nor is it information within the personal knowledge of the defendant. Compare Commonwealth v. Turra, 442 Pa. 192, 275 A.2d 96 (1971). Indeed, the only existing method to effectively probe the veracity of the assertion is to allow a defendant meaningful cross-examination of the police officer-affiant at the suppression hearing. As former Judge, now Chief Justice, Burger poignantly noted in another context: 'The traditional safeguards of the Anglo-American legal system 'leave the veracity of a witness to be tested by cross-examination.' Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602, 604 (1967).

It must be concluded that appellant at the suppression hearing should have been afforded the opportunity through 'the traditional safeguard' of cross-examination, to test the truthfulness of the recitals in the warrant alleging the informant's previous reliability.

We remand for a new suppression hearing in conformity with this opinion. If the suppression court determines the challenged evidence is to be suppressed, then a new trial is granted. If, however, the court determines the evidence is not to be suppressed, the judgment of sentence remains and appellant may file a timely appeal from that determination, if he so desires.

NIX, J., filed a concurring opinion in which JONES, C.J., and POMEROY, J., join.

NIX, Justice (concurring).

The United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1961) required the exclusion from federal and state courts, respectively, of evidence seized in violation of the Fourth Amendment. ¹ While that Court has discussed in great detail the allegations necessary to establish probable cause ² it has expressly withheld any decision as to...