Commonwealth v. Brown , 582 Pa. 573 ( 2005 )

Justice EAKIN

dissenting.

I respectfully dissent from the Court’s per curiam affirmance of the Superior Court’s order vacating appellee’s judgment of sentence.

The magistrate issued a search warrant based on an affidavit of probable cause filed by veteran officer Levell Jenkins. The affidavit stated he received information from two reliable CIs that appellee was selling crack cocaine, and that one Cl, under the officer’s supervision, made a purchase in appellee’s apartment. Based on the subsequent search of appellee’s apartment, and recovery of crack cocaine, plastic baggies, and a bag of marijuana, appellee was charged with numerous drug offenses.

Moving to suppress, appellee requested disclosure of the identity of the Cl who participated in the drug buy; he argued a sign-in log for his apartment might establish the Cl did not purchase drugs from him, and he sought to compare the Cl’s name with those in the log. Commonwealth v. Brown, 836 A.2d 989, 995-96 (Pa.Super.2003). The trial court denied this request. Appellee was convicted of all charges. The Superior Court vacated appellee’s judgment of sentence and remanded. Id., at 996.

We have recognized two scenarios where disclosure of a Cl’s identity becomes an issue when a Cl provides probable cause for a warrant, and when a Cl is a witness and misidentification is alleged. The test for the latter is set forth in Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77, 79 (1994), but the former is at issue here; hence, the precedential case is Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).

Bonasorte held the defendant must show the disclosure is material to his defense, reasonable, and in the interest of justice, then demonstrate 1) a good faith basis for believing the officer willfully misrepresented the existence of the Cl or the information conveyed by the Cl; 2) without the information from the Cl, no probable cause existed; and 3) production of the Cl is the only means of substantiating his claim. Id., at 1373-74. Only after the defendant has met this burden will the court weigh his proof against the government’s need to withhold the CPs identity. Id., at 1374. A defendant must first make a “substantial preliminary showing” of potential falsity. Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187, 1194 (1986). Where disclosure would jeopardize the safety of the Cl, it will not be permitted. Id., at 1195.

The Superior Court cited Bonasorte, then determined appellee met his burden of showing the identity of the Cl was material to his defense, and that the request was reasonable and in the interest of justice. Brown, at 996. However, it concluded the trial court erred in requiring appellee to produce evidence there was material misstatement in the affidavit. Eliminating this threshold element, the Superior Court reasoned that, unless there was forced disclosure even without a preliminary showing of material misrepresentation, officers might be inclined to include false averments in an affidavit to ensure a search warrant is obtained.¹ Id., n. 4. I find this reasoning unsupportable.

The Commonwealth contends appellee’s only “basis in fact” was his own denial of the allegations, which is not a reason to believe the officer made material misrepresentations. Bonasorte properly rejects such a bald assertion of an officer’s misrepresentation as a reason for disclosure of a Cl’s identity “[I]f the only ‘evidence’ produced at the suppression hearing is a defendant’s bald assertion (e.g., that [Cl] does not exist or that the officer misrepresented information conveyed by [Cl]), then the defendant has failed to meet his threshold burden.” Bonasorte, at 1874. In this, the Commonwealth is correct— the Superior Court ignored the first prong of the test entirely.

The Superior Court concluded appellee was able to meet his burden by demonstrating the Cl’s identity was material to his defense, reasonable, and in the interest of justice, by averring the existence of the apartment sign-in log, which may or may not have contained the Cl’s name. While this appears to establish a possible means of testing the Cl’s credibility, it does not raise a reason to test it, which is the proper inquiry.

Further, the real suppression issue is not the Cl’s veracity—it is the officer’s veracity. The warrant is validly issued if the officer reasonably believed what he told the magistrate—if he is later proven to be mistaken, the warrant is still valid. The sufficiency of any affidavit is measured by the magistrate’s ability to evaluate the officer’s assertions and credibility; this determination is no more undermined by subsequent attacks on the Cl’s veracity than it would be confirmed (as here) by the results of the search. Absent threshold reasons to question the officer’s veracity, mere denial of the allegations by an accused is not, nor should it be, sufficient to meet the Bonasorte test. Brown, at 996.

As the Superior Court’s decision is published, it is arguably the “final word” on the subject to this point, changing dramatically the test in Bonasorte. Such a change in the law should come from this Court, not a panel of the Superior Court ignoring its own precedent. A per curiam affirmance does not provide the Court with an opportunity to enunciate the correct standard for disclosure of the identity of persons in an affidavit of probable cause, and it allows the modification of a long-standing test without our review. In accordance with our decision to grant review in this ease, I would review the merits of the Commonwealth’s appeal and issue a published opinion addressing these important issues. Accordingly, I dissent.

Justice CASTILLE joins this dissenting statement.

1 . The Superior Court’s general concern for the potential of material misrepresentations ignores the fact that the learned trial court here saw the officer and evaluated credibility, just as did the magistrate—any reason to doubt credibility was, or should have been, given to the court there. It was not. This goes beyond even the balancing approach of Payne and other cases where the Cl is actually a witness.