Commonwealth v. Miller

• Citation: 483 A.2d 498,334 Pa.Super. 374
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Alvin MILLER.
• Decision Date: 21 September 1984
• Court: Superior Court of Pennsylvania

483 A.2d 498

334 Pa.Super. 374

COMMONWEALTH of Pennsylvania, Appellant, v. Alvin MILLER.

Superior Court of Pennsylvania.

September 21, 1984

Argued March 14, 1984.

Reargument Denied Nov. 26, 1984.

Steven J. Cooperstein, Asst. Dist. Atty Philadelphia, for Commonwealth, appellant.

Donald S. Bronstein, Asst. Public Defender, Philadelphia, for appellee.

Before CAVANAUGH, WIEAND and CIRILLO, JJ.

OPINION

WIEAND Judge:

Where the Commonwealth, in order to protect the life of an informant refuses to disclose publicly the informant's identity or the identity of prior cases in which he cooperated with the police, does a suppression court properly strike the search warrant affidavit reciting probable cause provided by the informant and suppress the fruits of an armed robbery found in the accused's residence? We conclude that the evidence in this case was improperly suppressed. Therefore, we reverse and remand for further proceedings.

The relevant facts are not in dispute. On April 18, 1982, Korman's Discount Store on Ridge Avenue in Philadelphia was robbed by two men, one of whom wielded a sawed-off shotgun. Jewelry was taken having a value of several thousand dollars. On the following day, April 19, Detective John Knowles obtained a search warrant, with authority to conduct a nighttime search for premises occupied by Alvin Miller at 2149 West Sherwood Street, Philadelphia. The affidavit of probable cause provided as follows:

On Monday 4-19-82 Kormans Discount 2163 Ridge Ave was robbed by two negro males at approximately 4:10 PM. This robbery was committed point of shot gun. When the two males were unable to gain entrance to the safe they broke the glass of a display case and removed several thousand dollars worth of jewelry[.] These items are discribed [sic] above as items to be searched for.

On Monday 4-19-82 the affiant received [sic] a telephone call at about 7:25 PM from a person who has given the affiant information in the past. The affiant met the informant and after having him identify a photo of the above named male the informant directed the affiant to the actors [sic] residence. The informant went on to say that earlier that day (4-19-82) he had been told by a Rodney Brooks that he and another male were "going to get down". A short time after this the informant saw Rodney Brooks in the company of the above named actor and was asked if he wished to buy any jewelry. Both the actor and Rodney Brooks had a large guanity [sic] of jewelry on them. He further stated that he heard both Brooks and Miller tell another male that they had robbed the Korean store at 22nd and Ridge and that is where the jewelry came from.

The affiant noted that the owners of Kormans Discount are Korean and that the actor fits the description [sic] of one of the males. This discription [sic] was given by the Korean owner and a negro employee.

CREDITABILITY: [sic] The affinat [sic] notes the following to attest to the creditability [sic] of the informant: On Thursday 4-15-82 the informant gave the affiant information leading to the arrest of two males involved in a burglary and an auto theft. This information also led to the recovery of the stolen motor vehicle. The affiant then contacted Det [sic] Louis Green # 9179 who stated that he had received information from the same informant that had led to two arrests in the past 4 weeks and in one of the cases property was recovered.

On Monday 4-19-82 the affiant again spoke to the informant at 10:30PM and was advised that Alvin Miller had just been seen by him on the street and he was still wearing some of the jewelry.

Based on the affiants belief that the above statements are true and based on reliability of the informants past information the affiant respectfuly [sic] requests the issuence [sic] of this warrant to facilitate the recovery of the stolen goods.

The affiant further requests that a night time search be permitted due to the ease with which the stolen property can be moved or disposed of. All of the listed items except for the shotgun can be secreted on the body of one individual and removed from the property.

When the warrant was executed, police found a sawed-off shotgun and numerous pieces of jewelry which had been taken in the armed robbery on the previous day.

At a pre-trial suppression hearing, Miller's counsel attempted to challenge the reliability of the informant whose "tip" had led to discovery of the stolen jewelry. He did not contend that the affiant had falsified the existence of the informant. During cross-examination of Knowles, the affiant, defense counsel asked for the names of the persons previously arrested because of information provided by the informant. Knowles said that he would not divulge this information in open court because its disclosure would lead to identification of the informant, whose life would thereafter be in serious danger. After the hearing judge and counsel had conferred in chambers, without the defendant being present, the hearing was continued until the following morning and Knowles was requested to obtain from another police officer the identities of the other persons who had been arrested as a result of information supplied by the informant.

When the proceedings were resumed the following morning, the Commonwealth requested the hearing judge to receive evidence pertaining to the informant's prior activities in camera without the presence of the defendant or his counsel. This request was denied. Detective Knowles then testified and explained that identification of the persons whose arrests had been made possible with assistance from the informant would make it possible to identify the informant and explained also why the informant's life would be endangered by disclosure of his identity. When the court nevertheless required the witness to disclose the information requested, the attorney for the Commonwealth offered to disclose the names of persons arrested by the witness, Detective Knowles, based upon information supplied by the informant. Defense counsel insisted on knowing the names of persons arrested by other police as well. Since the informant had also been a witness in one of these cases, Knowles refused to provide this information. Thereupon, the hearing court ordered all information supplied by the informant stricken from the affidavit. With this information deleted, the court found the affidavit insufficient to show probable cause for the issuance of a warrant to search. It concluded, therefore, that the search had been illegal and entered an order suppressing the evidence obtained from the defendant's residence. The Commonwealth appealed.

"When confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable--whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record ...." Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983). See also: Commonwealth v. Markman, 320 Pa.Super. 304, 308 n. 1, 467 A.2d 336, 338 n. 1 (1983); Commonwealth v. York, 319 Pa.Super. 13, 15, 465 A.2d 1028, 1029-1030 (1983); Commonwealth v. Johnson, 315 Pa.Super. 579, 582, 462 A.2d 743, 744-745 (1983). In the instant case, there can be no doubt that the Commonwealth's prosecution of the defendant was substantially handicapped by an order suppressing the weapon used in the robbery and the jewelry taken in the robbery. The only other evidence connecting appellee with the robbery was identification made by the victim. This identification, although positive at the preliminary hearing, had been tentative during an earlier lineup. See and compare: Commonwealth v. Rodriguez, 330 Pa.Super. 295, ---, 479 A.2d 558, 559 (1984); Commonwealth v. York, supra; Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983); Commonwealth v. Mack, 313 Pa.Super. 372, 459 A.2d 1276 (1983); Commonwealth v. Williams, 313 Pa.Super. 243, 459 A.2d 830 (1983).

"To support a search warrant, an affidavit must provide a magistrate with sufficient information to persuade a reasonable person that there is probable cause for a search." Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 454, 445 A.2d 1214, 1217 (1982). It is well-settled that a "tip" from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant's credibility. Following the decision of the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the courts of this State employed a "two pronged test" to determine whether an informant's tip was sufficient to show probable cause. A police affiant requesting a warrant was required to state the circumstances by which the informant obtained the information recited in the affidavit. He was also required to state in the affidavit the basis for finding the informant reliable. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) however, the United States Supreme Court replaced the "two pronged test" with a totality of the circumstances test. This Court has followed Illinois v. Gates, supra, and has applied a totality of the circumstances approach in cases subsequently coming before it. See: Commonwealth v. Corleto, 328 Pa.Super. 522, ---, 477 A.2d 863, 865 (1984); Commonwealth v. Ensminger, 325 Pa.Super. 376, ---, 473 A.2d 116, 118 (1984); Commonwealth v. Gray, 322 Pa.Super. 37, ---, 469 A.2d 169, 173 (1983); Commonwealth v. Rosario, 320 Pa.Super. 215, 217, 467 A.2d 5, 6 (1983); Commonwealth v. Price, 318 Pa.Super. 240, 244, 464 A.2d 1320, 1323 (1983). Now, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth...