Commonwealth v. Reisinger

HOFFMAN, Judge,

dissenting:

The Majority correctly states that the sole issue before us is whether or not the affidavit supporting the issuance of the search warrant provided a sufficient basis for the magistrate to determine that the affiant’s informant was credible. Because I believe that the affidavit did not sufficiently demonstrate the informant’s credibility, I dissent and would affirm the order of the lower court en banc granting appel-lee’s motion for a new trial.

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), set forth two requirements which an affidavit must meet before a magistrate can *12properly issue a search warrant: (1) the affidavit must show the underlying circumstances from which the informer received his information and determined the location of the items in issue, and (2) the affidavit must show the underlying circumstances from which the officer-affiant concluded that his informant was credible. See also Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973). In analyzing the second Aguilar-Spinelli prong, our Court has repeatedly focused on the following four factors:

“(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, supra 225 Pa.Super. at 386, 310 A.2d at 350. See also Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975); Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975); Commonwealth v. Abbruzzese, 223 Pa.Super. 452, 302 A.2d 853 (1973); Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972). See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971). All four factors need not be present in order to validate an officer-affiant’s estimation of an informant’s credibility. Commonwealth v. Samuels, supra; Commonwealth v. Barrett, 233 Pa.Super. 523, 335 A.2d 476, allocatur refused, 233 Pa.Super. XXXVI (1973). Indeed, the Pennsylvania Supreme Court has ruled that an informant’s declaration against penal interest standing alone may adequately insure his reliability. Commonwealth v. Matthews, supra.

In the instant case, the Majority concludes that the following passage of the affidavit established the informant’s credibility:

*13“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.” According to the Majority, this excerpt constituted a declaration against penal interest because informant admitted his willful participation in a drug transaction, Commonwealth v. Matthews, supra, and thus stripped himself of possible defenses to a possession charge.1 However, in Commonwealth v. Matthews, the informant’s admission of participation in the crime was the major and perhaps only evidence linking him to the crime; a willingness to inculpate oneself under these circumstances might well betoken reliability. By contrast, the police in the instant case caught the informant “red-handed” with possession of marijuana as he was running away from the Loysville Youth Development Center. After his arrest, the informant was, in effect, a worm on a legal hook. In order to wiggle off this hook, the informant may well have decided to focus the attention of the police on someone else by implicating appellee as his drug supplier. Indeed, the affidavit excerpt quoted above implicitly concedes that the informant’s statements were motivated by a desire to escape his legal dilemma rather than by a wish to ease his conscience through confession. Under these circumstances, the informant’s subsequent statements should not be viewed as reliable simply because they might technically be classified as declarations against penal interest.2 In *14short, I am not persuaded that the affidavit establishes the informant’s reliability under any of the four standards employed by our Court. Commonwealth v. Herron, supra.

Finally, I cannot agree with the Majority that the informant, even if caught “red-handed”, probably would not lie about the identity of his drug supplier. A person caught with drugs in his possession might very well conceal the true identity of his seller because of a fear of retribution, a desire to protect his source for future transactions, or bonds of friendship and loyalty.3 Moreover, an informant who was in *15fact his own supplier might find it expedient to inculpate another. Because I believe that the affidavit did not sufficiently establish the informant’s reliability, I dissent.

. The Majority does not specify which defenses the informant might have utilized had he remained silent. I note that an entrapment defense would have been most improbable because the police caught the informant with mere possession of marijuana rather than during a possibly staged drug transaction. The informant’s statements also severely compromised potential defenses of mistake or unconscious possession, but it is probable that the informant either did not know of these putative defenses or recognized their frivolousness at the time of his apprehension.

. Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert, denied 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976) raises a *14serious question as to whether the informant’s identification of ap-pellee as his seller may properly be considered a declaration against penal interest. In Colon, one Hernandez confessed to a murder and burglary. At the end of his confession, Hernandez stated in response to a police question: “I was alone. I went there alone and came out alone.” 461 Pa. at 580, 337 A.2d at 556. The Commonwealth subsequently prosecuted Colon as an alleged accomplice in Hernandez’s criminal exploits. In an effort to establish that Hernandez acted alone, the defendant attempted to introduce Hernandez’s confession. The trial court denied this motion on the grounds that the statement was inadmissible hearsay. The Supreme Court affirmed the conviction. Justice ROBERTS, in a plurality opinion joined by two other Justices, stated that declarations against penal interest were admissible in Pennsylvania court, but the portion of Hernandez’s confession that exculpated Colon was not against the declar-ant’s penal interest because that portion did not subject Hernandez to additional charges or more severe punishment. Therefore, the exculpatory portion of the confession did not have the safeguards of trustworthiness attributed to a statement truly against interest. See also Commonwealth v. Mitchell, 245 Pa.Super. 562, 369 A.2d 770 (1977), in which our Court applied Commonwealth v. Colon to hold a non-inculpatory portion of a declarant’s confession inadmissible in another person’s trial.

A similar analysis can be applied to the informant’s statements in the instant case. The portion of the informant’s statements admitting his purchase of marijuana may technically be a declaration against penal interest to the extent that it acknowledges the essential element of intent to possess marijuana, but informant’s designation of appellee as his supplier was not a declaration against penal interest. If the non-inculpatory portion of the confession in Colon was deemed inadmissible because unreliable, we cannot consistently find that the non-inculpatory portion of the informant’s statement in the case at bar was so reliable as to afford probable cause without the assistance of any other evidence or allegations bolstering the informant’s reliability.

. The Majority asserts that a person in police custody who hoped to receive lenient treatment would not lead the police on a wild goose *15chase. In Commonwealth v. Abbruzzese, supra, we implicitly rejected this contention. In Abbruzzese, a person under arrest for a burglary accused Abbruzzese of committing unrelated crimes. We stated that the informant’s accusations “could not be used to support any criminal charge against him, but could be construed . as given in a self-serving manner in an effort to ameliorate his own situation, . . . ” 223 Pa.Super. at 455, 302 A.2d at 854. We held that the informant’s charges did not bear sufficient reliability to validate an affidavit. Similarly, in the instant case, I believe that the informant’s statements were made in a self-serving manner in order to ameliorate his situation.