Commonwealth v. Robinson

Opinion by

Hoffman, J.,

Appellant was convicted of conspiracy and aggravated robbery. The evidence upon which appellant was convicted included reference to pawn tickets and jewelry, which items were seized by the police pursuant to a search of appellant’s home. Prior to trial, appellant had moved for the suppression of the pawn tickets and jewelry and testimony relating to where they were found, which motion was denied. From judgment of sentence, this appeal followed.

Two warrants are of concern here, an arrest warrant and a search warrant. The arrest warrant was obtained one week after the robbery charged. The search warrant was obtained several days later before a different magistrate than the one who had issued the arrest warrant.

The arrest warrant’s probable cause section contained the following: “On or about [a certain date] in the County of Philadelphia, the accused committed the following acts: Robbery, while armed with a gun and with an accomplice, on the person of [the victim], inside his home, at which time they took [an amount of money]. Complainant [i.e., the victim] identify [sic] [appellant’s] picture, positively as one of the two men who robbed him. . . .” Thus, the arrest warrant specified the source of the affiant’s information.

The search warrant’s probable cause section contained the following: “Subject named in this warrant [appellant] has been identified as one of two men who robbed [the victim] inside his residence at [a certain place] on [a certain date], at which time he took United States currency and [certain] items [of jewelry].” Unlike the arrest warrant, there is no indication as to tbe source of the affiant’s information nor did anything else in the warrant supply the source.

At the suppression hearing, in accordance with Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A. 2d 885 (1966), the court was willing to admit into evidence not only the probable cause section of the search warrant but also any sworn testimony given by the police officer who obtained the warrant to the magistrate who issued it. The police officer could not, however, recall what conversation he had with the magistrate and, particularly, whether any further inquiry was made. The police officer was not asked, and we cannot know, whether he brought the arrest warrant to the magistrate’s attention.

Armed with both the arrest and search warrants, two police officers went to appellant’s two-story home at 11:30 or 11:40 p.m. one night. March 26-28 N.T. 123. When they arrived, appellant was not home. Appellant’s wife admitted the officers. Although it is not absolutely clear, it appears the officers immediately executed the search warrant.¹ In appellant’s bedroom, on his dresser, they found two pawn tickets lodged in a book.² Because the articles described on the tickets matched the articles stolen in some respects, the officers seized them. After they finished searching, they waited for appellant. “We went there on the 27th, late that night. After we searched the premises and he wasn’t there, we waited for him to come home, because we intended to arrest him. He came home at 2:00 a.m. that morning.” March 25 N.T. 35. “Q. Did you then arrest Mr. Robinson as he walked into the house? “A. Yes. He was up on the porch, coming up on the porch of his house.” March 26-28 N.T. 155 [Emphasis added.].

The proper question raised by these facts is a narrow one: Was the probable cause section of the search warrant sufficient to sustain a finding of probable cause so that the warrant could lawfully be issued?

In answering this question, our purview is not unrestricted. We cannot peruse the entire record of the case in order to substantiate the probable cause section of the search warrant. We must confine ourselves to what the police officer wrote in his affidavit or orally swore to the magistrate. Commonwealth v. Crawley, supra at 75-78, 223 A. 2d 889-890. The dissent would not be so confined. Regardless of whether the magistrate had enough information to constitute probable cause, the dissenting judges would sustain the warrant so long as they, on a search of their own, could gather from other warrants, police reports and any variety of sources that the officer indeed had probable cause.³ Such an approach would circumvent the constitutional protection afforded us by the Fourth Amendment, to have a “neutral and detached magistrate” decide whether the police officer had probable cause to enter our homes. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367 (1948). We cannot do away with the requirement that the magistrate decide whether probable cause exists and substitute in his stead a police officer. The Fourth Amendment does not permit. a police officer to investigate and to judge the propriety of his investigation, too.

The frailties of the instant search warrant are apparent. The probable cause section fails in two respects: (1) It lacks any statement which would support a finding that the affiant had made observations of his own or that he had received his information in a reliable manner. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969). (2) It also lacks any statement which would support a finding that the informant was credible, i.e., that his information that appellant was involved in the crime was to be believed. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964).

The Commonwealth argues in its brief that “ [w] hile the detective could not remember whether he had told the magistrate anything beyond the information contained in the warrant . . ., it is clear that the language of the warrant itself, fairly read, informed the magistrate that appellant had been identified by his victim.” If indeed such an inference could reasonably be drawn from the warrant, we would agree that (1) and (2) above were satisfied, since a victim’s information is both reliably received and credible for the purpose of establishing probable cause.

However, it would require more than a “fair reading” to conclude that the police officer’s information was in fact obtained from the victim. It would require extraordinary insight. Although we realize that the truth of the matter is that the police officer had probable cause, to permit such a warrant to stand would in a vast number of cases, subvert tbe constitutional requirement of probable cause.⁴

The dissenting judges would, alternatively, sustain the search of appellant’s home as incident to a lawful arrest. The doctrine, however, as it was understood at the time of the search, was that “a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.” Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889, 891 (1964). See Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4 (1925). This limitation, binding upon the states, was applied in the careful opinion of Mr. Justice Jones in Commonwealth v. Ellsworth, 421 Pa. 169, 218 A. 2d 249 (1966).⁵ In Ellsworth, two hours after the defendant was arrested and taken into custody, his room was searched and articles were seized. The Court concluded that the search was invalid because, among other reasons, it was not “contemporaneous” with the arrest. The Pennsylvania authority relied upon by the dissenters, Commonwealth v. Harris, 429 Pa. 215, 239 A. 2d 290 (1968), not only fails to support them but requires a contrary result. In Harris, the defendant was arrested immediately upon entering a house. The Court, through Mr. Justice Eagen, took pains to point out that the defendant’s automobile was parked on the street “almost directly” in front of the house. The police officers who arrested the defendant then searched his automobile, presumably incident to their arrest. The Court concluded, however, that the second half of the limitation applied. The automobile was not in the “immediate vicinity” of the arrest, albeit it was parked directly in front of the house.

The Supreme Court has recently reaffirmed the Ellsworth-Harris interpretation of Stoner. In Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969 (1970), the Court reviewed a search conducted of the defendant’s house allegedly incident to his arrest “as he reached the front steps.” The Court held that “[i]f a search of a house is to be upheld as incident to an arrest, the arrest must take place inside the house . . . not somewhere outside— whether two blocks away, . . . twenty feet away, ... or on the sidewalk near the front steps.” Id. at 33, 34, 90 S. Ct. at 1971. This, the Court said, has always been the law, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969), notwithstanding.⁶

Ellsworth and Harris, law clearly known to the police at the time of the search, govern this case. Apparently, two hours before the arrest was made, the police officers conducted an extensive search of appellant’s home, reaching into his bedroom. After they finished, they waited for his arrival. Thus, the search failed, under Ellsworth, to be “contemporaneous” with the arrest. Moreover, appellant was arrested as he ivas “coming np on the porch of his house.” Such an arrest does not justify a search reaching into appellant’s bedroom. Such a search fails, under Harris (and Vale, in particular), because it was not in the “immediate vicinity” of the arrest.

Because the warrant was invalid and because the search was not incident to an arrest, we vacate judgment of sentence and grant a new trial.

Weight, P. J., dissents.

1 “Q. When you entered the Robinson home with this search and seizure warrant, you conducted a search pursuant to the warrant, did you not “A. Yes.” March 25 N.T. 18.

“Q. What time [did you arrive at appellant’s residence]? “A. We arrived at his residence at 11:30 or 11:40 p.m. on the 27th. “Q. Who was there at the time? “A. [Appellant’s] wife. “Q. Did she admit you? “A. Yes, she did. “Q. What happened at that time? “A. We conducted a search of the premises for the articles as described taken in the robbery.” March 26-28 N.T. 123 [Emphasis added.].

“Q. There is no question that the search in this case was made at about 11:00 o’clock on June the 27th and that the arrest of [appellant] was not made until June the 28th the following morning “A. That, is correct. We arrived at the house. It was before midnight on the 27th, about 11:\C p.m.” March 26-28 N.T. 155 [Emphasis added.].

2 It is not clear whether appellant’s bedroom was on the first or second floor of appellant’s house.

3 Neither the Comomnwealth nor the court below has ever, during the course of this case, advanced such an argument. The Commonwealth’s argument is set forth below.

4 The principles this Court announces, we hope, are neutral. We cannot adopt one set for those we believe guilty and another for those we believe innocent. If appellant is indeed guilty, regardless of whether the evidence seized is admitted, the victim will testify that appellant robbed him.

5 Ellsworth was handed down several months before the instant search. Its principles, of course, were understood long before.

6 The doctrine of search incident to arrest was restated by the Court in Chimel. Justice Stewabt, writing for the Court held the following: Police officers may “search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. ... [I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.” Id. at 763, 89 S. Ct. 2040. Regardless of whether Chimel is retroactive, the instant search fails under the doctrine as it was understood at the time of the search. The strictness of cases like Ellsworth and Harris indicated that Chimel would soon be forthcoming. 395 U.S. at 768 and n. 14, 15, 89 S. Ct. at 2042 and n. 14, 15.