Commonwealth v. Barrett , 233 Pa. Super. 523 ( 1975 )

Dissenting Opinion by

Hoffman, J.:

I dissent from the holding of the Majority.

In Spinelli v. United States, 393 U.S. 410 (1969), the United States Supreme Court set forth a two-pronged test by which the validity of search warrants based on information from police informants is to be judged: “First, the application [for the warrant in Aguilar v. Texas, 378 U.S. 108 (1964)] failed to set forth any of the ‘underlying circumstances’ necessary to enable the magistrate independently to judge the validity of the informant’s conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was ‘ “credible” ’ or his information ‘ “reliable.” ’ ” 393 U.S. at 413.

I do not dispute the Majority’s position that the second criterion was met. Past police contact with the informants was sufficient to establish the informants’ reliability in the instant case. I cannot, however, find in the affidavit any of the underlying circumstances which indicate how the informants acquired their information. The Majority points only to additional details, such as the year and make of the automobile used to transport the appellant and his co-defendants, that were not probative of appellant’s participation in criminal activity. Underlying circumstances means more than readily ascertainable or visible data. It relates to how the informant acquired his information: “We are not told how the [police’s] source received his information — it is not alleged that the informant personally observed [appellant] at work or that he had ever [personally transacted with the appellant]. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable...” 393 U.S. at 416. The additional detail to which the Majority points does not fill the gap. For example, the affidavit states that “Officer Hymon also stated that his informant had stated that the two [defendants] had left sometime this afternoon, but did not know the exact time.” The informant’s ignorance of the time of departure suggests that his information may have come from another source, other than from his personal experience. If that were the case, the magistrate and our Court are in ignorance concerning the reliability of the informant’s informant. Further, of the four informants, the affiant knew the source of only one informant’s information — “Officer Schwartz of the Pennsylvania Turnpike Police ... personally observed a black Cadillac sedan ...” Although the affiant knew the source of that information, the information was wholly consistent with innocent activity and, therefore, could not supplement the otherwise inadequate statement of probable cause.¹

Because the warrant failed to set forth the underlying circumstances of the police’s informants’ information, it was constitutionally defective. Therefore, the search and seizure conducted subsequent to the warrant were illegal and the evidence should have been suppressed.

1 . Cf. Spinelli, supra, at 414: “The first two items reflect only innocent-seeming activity and data. Spinelli’s travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity; and there is surely nothing unusual about an apartment containing two separate telephones . . . Finally, the allegation that Spinelli was ‘known’ to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision.”