Commonwealth v. Flores
| Decision Date | 05 October 1978 |
| Docket Number | 0384-0385 |
| Citation | 1 Phila. 539 |
| Parties | Commonwealth v. Ralph Flores |
| Court | Pennsylvania Commonwealth Court |
(1) Motion to Suppress Physical Evidence granted. Affidavit in support of search warrant must provide issuing authority with sufficient facts to determine that informants were credible and that their information was reliable. The affidavit failed to indicate that the anonymous informants had ever before provided reliable information to the police; the informants' information was not corroborative of each other and primarily based either upon hearsay or observations which alone did not support criminal activity.
Mark Gotlieb, Esquire, for the Commonwealth
William Bowe, Esquire, for the Defendant
Defendant, Ralph Flores, is charged with burglary, theft by unlawful taking, and receiving stolen property.
In a pre-trial motion to suppress evidence, the defendant challenges the validity of a search warrant pursuant to which the police seized certain goods from the defendant's apartment. Specifically, the defendant alleges that the warrant did not establish the reliability of two informants who supplied information giving rise to probable cause for the search.
1. On June 7, 1978, at 9:25 P.M., the Honorable Alan K. Silberstein issued a warrant for the search of defendant's apartment located at the second floor of 761 South 3rd Street, Philadelphia. N.T. of Motion to Suppress 4-6.
2. The affiant, Detective William Brown of the Philadelphia Police Department, submitted the following affidavit in support of the search warrant:
On 5-31-78 at 7:35 am, Eva Cohen 35 f/w reported that sometime between 6:00 pm, 5-30-78 and 7:30 am, 5-31-78 unknown person(s) had removed a window pane from her store located 741 S. 4th st. and took numerous articles as described above. On 6-7-78 at 5:15 pm, two (2) concerned citizens came into South Detective Div. and spoke with Affiant. These persons, who do not wish [sic] tbe identified, (but are known to Affiant) because they are afraid of retaliation, gave the following information; #1-citizen stated that within the past 5 days he had been inside 2nd floor apartment of a person known to him as Ralph Flores 23 w/m, at 761 S. 3rd st. and that he saw different type sporting goods (described above) and when he inquired about these items, Ralph Flores told him that he had broken into a Sporting Goods store located 741 S. 4th St. a couple of times in the past two (2) weeks by removing the window pane from the store window. #2-Citizen stated that over the past weekend he had seen Ralph Flores with brand new tennis equipment. (page 2 of affidavit). That he saw him on the highway 200 block of Fitzwater st.
On 6-6-78 at 9:10 am, Diane Stillman 34 f/w, co-owner of the Second Hand Sporting Goods store reported that sometime between 6:00 pm, 6-3-78 and 9:00 am, 6-6-78, unknown person(s) had gained entry to the store by removing panels from the window and did take various sporting goods items, as described on page #1 of this warrant.
Based on this information Affiant believes that the items to be searched for will be found inside 761 S. 3rd st. 2nd floor apartment.
3. Written in a section of the warrant designated " Identify items to be searched for and seized (Be as specific as possible)" preceding the section provided for the statement of probable cause were the following entries: " Spalding basketballs; tennis equipment; exercise equipment: jogging suits; pool cues; Texan [sic] Instrument calculators; Camping equipment."
4. On June 7, 1978, at 9:40 P.M., Detective Brown, together with three other Philadelphia police officers, searched the defendant's apartment. N.T. 6-10.
5. As a result of the search, the officers seized and confiscated two tennis rackets, one racket ball racket, one white plastic closet light, a head set, two vacuum brushes, four large blue sweat bands, four wrist bands, a chest expander, two wrist exercisers, a jump rope, ski goggles, a draw poker game, two cue sticks, a backgammon game, a beacon light, a blue canvas camping bag, and a slim wheel. N.T. 8-11. See inventory of property seized listed on search warrant.
1. Before a magistrate may issue a constitutionally valid search warrant, he must be furnished with information sufficient to persuade a reasonable man that probable cause to conduct a search exists. Comm. v. Sangricco, 475 Pa. 1788 379 A.2d 1342 (1977); Comm. v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. den. 423 U.S. 999, 46 L.Ed.2d 376 (1975).
2. An affidavit need not reflect the personal observations of the affiant. It may be based on hearsay information. Jones v United States, 362 U.S. 257, 4 L.Ed.2d 697 (1960); Comm. v. Greco, 465 Pa. 400, 350 A.2d 826 (1976); Comm. v. Coner, 452 Pa. 333, 305 A.2d 341 (1973).
3. When the affidavit is based on hearsay information, the magistrate must be presented with (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was and (2) reasons why the affiant believed the informant was reliable. Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723 (1964); Comm. v. Stokes, Pa., 389 A.2d 84 (1978); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Comm. v. Reisinger, 252 Pa.Super 1, 380 A.2d 1250 (1977).
4. Information provided by certain classes of persons may be sufficient to establish probable cause. The uncorroborated confession of an accomplice which implicates the suspect will furnish probable cause. Comm. v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Comm. v. Rush, 459 Pa. 23, 326 A.2d 340 (1974); Comm. v. Reisinger, supra. The statement of a victim, identifying the perpetrator of a crime, has also been found sufficient to establish probable cause. Comm. v. Hall, 456 Pa. 243, 317 A.2d 891 (1974). Additionally, information offered by an eyewitness whose identity is known has been deemed sufficient. Comm. v. Carter, 444 Pa. 405, 282 A.2d 375 (1971).
5. In this case, Citizens #1 and #2 were not accomplices, eyewitnesses, or victims of the burglary of the Second Hand Sporting Goods Store. According to the affidavit, Citizen #1 merely observed the alleged contraband in the defendant's apartment. He witnessed neither the burglary of the store, nor the receipt of the goods by the defendant from another person. None of the information volunteered by Citizen #1 would have subjected him to criminal liability, and the informant's mere presence in the vicinity of the contraband would not permit an inference of possession of the stolen goods. See Comm. v. Fortune, 456 Pa. 365, 318 A.2d 32 (1974); Comm. v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971); Comm. v. Slater, 242 Pa.Super 255, 363 A.2d 1257 (1976).
6. An informant's fear-induced anonymity does not ipso facto render his report inherently reliable, Betrand Appeal, supra, at 387. Therefore, the allegation that Citizens #1 and #2 asked that they not be identified by name because of fear of retaliation cannot release this Court from its obligation to assess the reliability of the informants.
7. An admission per se is inherently reliable, but an admission transmitted through an informant is only as reliable as its conduit is trustworthy. Comm. v. Stokes, supra at 78. Flores' purported admission of the theft serves as a basis for probable cause only to the extent that the Commonwealth establishes the reliability of the source of the information.
8. There is no indication from the affidavit that the two anonymous informants had ever before provided reliable information to the police, see Comm. v. Stokes, supra at 78, or were otherwise worthy of belief. See Comm. v. Lassiter, 457 Pa. 582, 321 A.2d 902 (1974) (named informant was a retired policeman). Detective Brown averred that he knew both informants, but failed to say for how long or under what circumstances. Moreover, the information given by Citizen #2 provided little, if any corroboration of the information furnished by Citizen #1. Ctizen #2 merely stated that he had seen the defendant on the street with " brand new tennis equipment." He failed to specify...
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