Commonwealth v. McGinn

PRICE, Judge:

On August 6, 1975, Pennsylvania State Police officers conducted a search of appellee’s residence pursuant to a search warrant. The search uncovered various pool selling and bookmaking paraphernalia, and, as a result, appellant was indicted for violations of 18 Pa.C.S. § 5514.

Appellee filed a motion to suppress the seized evidence, alleging, inter alia, that the warrant was not applied for, issued, and executed in conformity with the requirements of Pa.R.Crim.P. 2001-10, and that the affidavit filed in support of the warrant did not establish probable cause. At the suppression hearing, Trooper James L. Anderson was cross-examined about telephone calls which he made or observed being made to appellee for the purpose of placing bets. Appellee’s attorney asked Trooper Anderson to explain specifically his statement that records of the calls were made shortly after the calls were completed. Trooper Anderson answered as follows:

“A. I believe they were made in the car. In Trooper Taylor’s car. We had him with the informant — I’m sorry. I’m going to August 5th. The phone call on the 30th was made from the informant’s residence. I can’t be sure whether that was made in the motel or in the car on the way to the motel after the phone call.

Q. Well, now, geographically, where were you when this call was made?

THE COURT: Which call are we talking about?

MR. CARROLL: The call of July 30th, sir.

A. You are talking about the informant’s house?

THE COURT: He’s asking you where you were.

THE WITNESS: At the informant’s house.

THE COURT: All right. Geographically, where is that?

THE WITNESS: Well, the best I could — that I would prefer to answer that is Eastern Pennsylvania. Southeastern Pennsylvania.

BY MR. CARROLL:

Q. Is it in Delaware County?” [NT 20-21]

Trooper Anderson refused to answer the last question because the answer might have revealed the identity of his informant. The court disagreed and insisted that the trooper answer. When the trooper still refused, the court granted appellee’s motion to suppress. We reverse the order of the lower court.

There are two competing interests involved in this case. The first is the Commonwealth’s interest in protecting and encouraging informants. See, e. g., Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). The second is the defendant’s interest in testing the veracity of facts establishing probable cause in an affidavit. See Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973).

As we noted in Commonwealth v. Williams, 236 Pa. Super. 184, 345 A.2d 267 (1975), there is no set rule for determining when the Commonwealth’s privilege to withhold an informant’s identity will be withdrawn. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Rovario v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1967).

Before the Commonwealth will be forced to reveal an informant’s identity, there must be some showing that revelation is necessary. For example, the informant’s identity may be necessary to the defense where the evidence against the defendant proceeds solely from the testimony of police officers, and the only relatively neutral eyewitness to the crime is the informant. See Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). Other situations where the informant’s identity would be helpful are where the defendant alleges entrapment or where there is an identification issue. See Commonwealth v. Williams, supra.

In this case, appellee has raised none of the above issues; in fact, he was not actively seeking disclosure of the informant’s identity. Appellee did not file a Bill of Particulars, and he did not and does not contend that knowledge of the informant’s identity would have helped in the preparation of his defense. Appellee only sought the location from which certain telephone calls had been made. This information undoubtedly would have been helpful to test the veracity of the statements in the affidavit. Unfortunately, due to the witness’ answer on cross-examination, revelation of the location from which the calls were made might have revealed the identity of the informant.

The countervailing interest asserted by the appellee was first explicated in this Commonwealth in Commonwealth v. Hall, supra. In that case, the defendant sought to cross-examine the affiant concerning the allegation in the affidavit that information supplied by the informant had led to the arrest and conviction of numerous other individuals. The defendant sought to test this allegation by asking for the names of the other individuals. The supreme court held that the defendant was entitled to the names. “[T]he veracity of facts establishing probable cause recited in an affidavit supporting a warrant can be challenged and examined at a suppression hearing.” 451 Pa. at 204, 302 A.2d at 344.

That decision of the supreme court, however, is tempered by a number of factors. First, a concurring opinion in which two other justices joined pointed out that the sole purpose of allowing inquiry into the recitation of facts in the affidavit is to facilitate the discovery of intentional misrepresentation of material facts by police officers. See also Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Jones, 229 Pa. Super. 224, 323 A.2d 879 (1974). The concurring opinion also noted that inquiry was not unlimited and that not every misrepresentation would require suppression.

Another important point to recognize about Commonwealth v. Hall is that it represents the minority view. Most jurisdictions do not allow an attack to proceed beyond the face of the affidavit. North Carolina v. Wrenn, 417 U.S. 973, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (1974) (Dissenting opinion of Mr. Justice White).

Finally, it is instructive to observe that in Hall, the defendant did not seek the name of the informant and the information he sought would not have revealed the informant’s identity. Here, unlike in Hall, the information sought by appellee might have revealed the informant’s identity. Furthermore, appellee was not precluded from testing the veracity of the affidavit with other questions.

Thus, we are faced with a difficult choice between two important interests. If we find in appellant’s favor, appellee is still entitled to a fair determination of his guilt or innocence, including the right to continue with his attack on the affidavit. If we find in appellee’s favor, the case is terminated. Under the circumstances, we believe that the Commonwealth’s interest in prosecuting offenders outweighs the appellee’s interest in attacking the affidavit with the specific questions presently at issue. Therefore, the order of the lower court is reversed and the case is remanded for proceedings consistent with this opinion.

SPAETH, J., files a dissenting opinion in which HOFFMAN and CERCONE, JJ., join.