Commonwealth v. Reisinger

JACOBS, Judge:

This is an appeal from an order of the lower court granting appellee’s motion for new trial and ruling that evidence seized pursuant to a search warrant should not have been admitted at appellee’s trial for possession with intent to deliver a Schedule I controlled substance.¹ The Commonwealth, unable to retry appellee without said evidence, is clearly entitled to bring this appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The sole issue before us is whether or not the affidavit supporting the issuance of the warrant provided a sufficient basis for the magistrate to determine that the affiant’s informant was probably credible. We believe it did and reverse.

Judge Weidner filed an opinion and order denying appel-lee’s pre-trial motion to suppress. The facts set forth in that opinion are as follows:

“ . . . The affidavit in the present case reveals that the information leading to the application for the warrant was obtained by Officer Dougherty from one Terry Woodrow. Woodrow had been a passenger in an automobile which had been stopped for a Vehicle Code violation by Officer Donald Tappan. Officer Tappan had learned that Woodrow was a runaway from Loysville Youth Development Center and took him into custody. Approximately an ounce of marijuana was found on Woodrow at that time. Woodrow then admitted to Officer Tappan that he had purchased the marijuana and that the seller was the defendant.

“Officer Dougherty later separately conducted an interview with Woodrow, who again admitted purchasing the marijuana on February 19, 1976 and asserted that the location of the marijuana was in the kitchen cabinets of defendant’s home at 120 Carol Lane, Enola, Pennsylvania and disclosed the details of the purchase, including information about the people present, the plastic bags used to package the substance, the scales used to weigh it, and the location of these items. He also indicated that defendant had approximately 25 pounds of marijuana at that time and expected to acquire more within a few days.” Printed Record at 34a-35a.

On February 21, 1976, a warrant was issued and a search was conducted at appellee’s residence. Approximately one and one-half pounds of marijuana was seized, along with certain other items. Charges were thereafter filed against appellee. Following appellee’s conviction, the lower court en banc granted a new trial, holding that the evidence seized should have been suppressed. The Commonwealth subsequently filed this appeal.

In order to support a finding of probable cause based on an informant’s hearsay, the affidavit must comply with the now familiar two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The first requirement is an explanation of the “underlying circumstances” from which the informant received the information and reached the conclusion that fruits of a crime would be located in the place to be searched. Secondly, there must be set forth in the affidavit a reasonable basis for the affiant’s belief that his informant is credible and his information reliable. See e.g. Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Rose, 211 Pa.Super. 295, 235 A.2d 462 (1967). It is undisputed that the affidavit satisfied the first prong of the Aguilar test, since the informant received his information as a participant in a drug transaction during which he claimed to have seen the drugs in appellee’s possession. The question remains whether or not the second prong of the test, regarding credibility, was satisfied. We believe it was.

The portion of the affidavit dealing with the affiant’s belief that the informant was credible appears as follows:

“It is this officers (sic) belief that Terry Lynn Woodrow is being completely truthful because after being caught in the possession of marijuana and being a runaway from Loysville he reasonably believed that the only way to help himself was to cooperate with the police and inform the police as to the person who sold him the marijuana.” Printed Record at 28a.

In examining this affidavit, it behooves us to recall, as Justice Frankfurter pointed out in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), that the magistrate issuing the warrant “ . . . need not have been convinced of the presence of narcotics [at the place to be searched] . . . rather, there need only be a “ . . . substantial basis for him to conclude that narcotics were probably present . . . ” Id. at 271, 80 S.Ct. at 736 (emphasis added). Additional guidelines for reviewing cases such as this were provided in United States v. Ventres-ca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), where the Court stated:

“ . . . when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 109, 85 S.Ct. at 746 (citation omitted).

The leading case concerning the reliability half of the two-prong Aguilar test is United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). That case, as reviewed by this court on several occasions, sets forth the following four factors which should be considered in determining whether or not there is a substantial basis for crediting the hearsay contained in the affidavit:

“(1) Did the informant give prior reliable information?

“(2) Was the informant’s story corroborated by any other source?

“(3) Were the informant’s statements a declaration against interest?

“(4) Does the defendant’s reputation support the informant’s tip?”

Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973); see also, Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972).

We do not believe that the above-listed factors were intended by the Harris Court to be the only factors which could conceivably provide a basis for crediting the hearsay. To apply this “checklist” in a mechanical manner would deprive a reviewing court of the opportunity to use its “common sense,” as urged by the Court in United States v. Ventresca, supra. In keeping with this view, we have never required all four of these factors to be present in order to support the magistrate’s determination of credibility. Commonwealth v. Barrett, 233 Pa.Super. 523, 335 A.2d 476, allocatur refused, 233 Pa.Super. xxxvi (1973).

The Commonwealth argues, and we agree, that the statements made by the informant, Terry Woodrow, were declarations against penal interest and that alone supplied a sufficient basis for crediting those statements, since “[t]he case law is clear that when a person is an admitted participant in a crime, and the police attempt to secure a warrant upon the information received from him, the second aspect of the Supreme Court’s test is met, since the fact that the individual admits participation in the crime insures his reliability.” Commonwealth v. Matthews, supra 446 Pa. at 70, 285 A.2d at 512 (citations omitted).

We held in Commonwealth v. Rose, supra, that an informant’s self-incriminating statement concerning a drug transaction was sufficiently reliable to justify issuance of the warrant, since the statement was against the informant’s interest. Appellee argues, and the lower court agreed, that the informant’s statements in this case, while incriminating were not against his penal interest since he had in any event been caught “red handed” with drugs in his possession, and that by incriminating appellee, the informant was hoping to gain favorable treatment in his own case. We disagree. Indeed, most self-incriminating statements made by an admitted participant in an illegal act are made in hope of receiving favorable treatment from the police or the prosecutor. The Supreme Court specifically ruled in United States v. Harris, supra, that the fact that an informant is promised a “break” if he comes clean does not necessarily lessen the inherent credibility of a statement admitting criminal conduct.

While it is true that having been apprehended with drugs in his possession, the informant might have been convicted of possession solely on that evidence alone, his statement admitting guilt was nonetheless against his penal interest, since it worked to deprive him of the numerous defenses which can be asserted to a possession charge. We believe that there was a substantial possibility the informant’s statements would later be used against him in legal proceedings, and that alone justified a finding that the statements probably were credible.

There is an additional element we believe should be considered in the common sense appraisal mandated by United States v. Ventresca, supra, despite the fact that it is not among the oft-cited factors set forth in Harris. Assuming the young informant’s statements were made in hope of getting a break from the authorities, we believe that he probably would not lie to the very people he wished to ingratiate common sense requires the conclusion that if the informant expected special treatment, he knew it wouldn’t be forthcoming if he led the police on a wild-goose chase.

We must pay heed to the reminders of the Jones and Harris courts and recognize that the magistrate need only deal in probabilities, and that a much smaller quantum of facts is necessary to support the issuance of a warrant then is necessary to support a criminal conviction. We believe there was a substantial basis from which the magistrate could determine that Terry Woodrow was probably telling the truth, and that the warrant was properly issued. The evidence seized was therefore admissible.

Order reversed.

SPAETH, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion.

1 . Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101 et seq. (1977).