Commonwealth v. Dabberio.

own observation he is satisfied that there is probable cause to believe that the premises are being used as above set forth because of the character of the persons frequenting said premises, their habits and the fact that they have been using, while frequenting said premises, intoxicating liquor; and he has been informed by credible persons that the said premises are being used for the unlawful sale of intoxicating liquor, and from his own observation and from the information obtained he is satisfied the said premises are being used unlawfully for the purposes above set forth," the justice, if he believe this affidavit to be true, as he testified he did, was justified in finding that probable cause did exist, "that question of probable cause being one to be determined by the judicial officer issuing the warrant:" Cochran v. State, 105 Ohio St. 541, 138 N. E. Repr. 54; Com. v. Intoxicating Liquors, 103 Mass. 448.

"Probable cause does not import absolute certainty. It only implies reasonable grounds for belief, and the justice issuing the search warrant is the authority to be satisfied that probable cause exists:" Com. v. Schwartz, 82 Pa. Superior Ct. 369, 375.

Petitioner alleges, also, that the search and seizure proceedings were illegal and invalid because the officer executing the warrant did not bring the liquors found to the magistrate who issued the same, nor did the magistrate dispose of them as provided by law. We do not think this contention is well founded. The evidence taken shows that Corporal Roos did actually bring the liquor found to the office of the committing magistrate, and that the committing magistrate permitted him to bring it to Towanda, and that the same is now in the custody of, or under the control of, the district attorney.

Paragraph 3 of section 8 of the Enforcement Law in question is as follows: "If no person shall be found in the possession thereof, or if, upon preliminary hearing, the person or persons so arrested shall be bound over to appear at the Court of Quarter Sessions of the peace, or the person or persons so arrested shall be discharged, having denied the ownership or possession thereof, it shall be the duty of the said alderman, justice of the peace or magistrate to deliver the said thing or things so seized or taken to the district attorney, or the person designated by him, to be held by him subject to such disposition by the court as is hereinafter provided."

We think what the justice did in permitting Corporal Roos, who was the person designated by the district attorney, to make the complaint and execute the papers in this case was a substantial compliance with the law. Moreover, the failure of the justice to comply strictly with the letter of the law will not invalidate the process, as substantial compliance is all that is required.

"The failure of the justice to include in the warrant a direction to bring the liquors seized under the warrant to him for disposition according to law is not fatal to the search made pursuant to the warrant (numerous citations). The justice is not to keep the seized liquors himself, but is to deliver them to the district attorney (section 8). As a matter of fact, in this case it is admitted that the liquors were taken to the justice with the return of the warrant and were directed by him to be held by the chief of police until delivered to the district attorney. There does not seem to have been any question that the liquors produced at the trial were found on defendant's premises when the search was made:" Com. v. Schwartz, 82 Pa. Superior Ct. 369, 376.

There can be no question that the liquors now under control of the district attorney are the liquors taken from petitioner's premises, as the petitioner so alleges and is asking in this proceeding that the same be returned to him.

Commonwealth v. Dabberio.

We believe the information given to Corporal Roos by the district attorney as to the result of his investigation and the information he had obtained by interviewing credible persons who had purchased intoxicating liquors of the defendant at the place in question is sufficient to warrant Corporal Roos in making the complaint, and if the justice believed those statements, when sworn to by Corporal Roos, is sufficient to warrant him in finding probable cause exists. We think this is held by the Supreme Court of our State as follows: "Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. Among the numerous attempts to define it are: 'A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty of the offence,' and 'a deceptive appearance of guilt arising from facts and circumstances misapprehended, or misunderstood, so far as to produce belief.' The substance of all the definitions is a reasonable ground for belief of guilt. Representations of others may be an adequate foundation for it, especially if made by those who have had opportunities for knowledge or who have made investigation:" McCarthy v. De Armit, 99 Pa. 63, 69.

In this case, however, probable cause in point of fact actually did exist, as the result of the search established.

a

building occupied as

When we consider the validity of the warrant which was issued in this matter, another question arises. The warrant issued by the justice of the peace was blank as to the place or premises to be searched. There was no description whatever of the place to be searched. That portion of the warrant reading as follows: "Unlawfully possessed by one Dan De in and situate in the Borough of Sayre, County of Bradford and State of Pennsylvania, and which said premises are being used for the unlawful sale of intoxicating liquor." We are clearly of opinion that this description of the place to be searched was wholly inadequate, and that the warrant in question did not justify or authorize the officer in searching the premises of the defendant. If a search warrant can be issued in blank as to the premises to be searched, and an officer armed therewith can, at his pleasure, search any place to which his fancy may direct him, and, after making the search, fill in the warrant or have the justice fill it in to correspond with the place searched, it would be a very dangerous practice, and one which, we think, under our Constitution and laws, is forbidden. It is, therefore, our opinion that, while the complaint upon which the warrant issued, except in not describing the premises to be searched, was sufficient to justify its issuance, the warrant itself was invalid by reason of its being too vague and indefinite as to the place to be searched.

We believe the rule as to the sufficiency of a search warrant in describing the person or place to be searched should at least be as strict as that governing a general warrant for the arrest of a person charged with crime. In 4 Blackstone, 291, we find the following: "A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty. . . . And a warrant to apprehend all persons guilty of a crime therein specified is no legal warrant, for the point upon which its authority rests is a fact to be decided on a subsequent trial, namely, whether the person apprehended thereupon be really guilty or not. It is, therefore, in fact, no warrant at all, for it will not justify the officer who acts under it; whereas, a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction) will, by VOL. 7-40

Commonwealth v. Dabberio.

Statute 24 Geo. II, ch. 44, at all events, indemnify the officer who executes the same ministerially."

We do not consider it necessary to pass upon the question as to whether or not the information received by Corporal Roos from the district attorney, who had been investigating the defendant, was sufficient to warrant him in making the complaint to which he swore. He did make the complaint, and it was positive and direct, and the justice says he believed it to be true, and this, we think, is all that was necessary to warrant the justice in issuing the warrant.

If an application be made to a justice of the peace for a search warrant, and the complainant testifies positively to facts which are fully sufficient to justify the justice in finding probable cause, yet which are wholly untrue, and the justice believes those facts and bases his finding that probable cause exists thereon and issues a search warrant, places it in the hands of an officer (not the complainant), who executes it, we believe such warrant would be a justification to the officer and that he would not be liable in trespass because the witness produced before the justice, who testified to the facts showing probable cause, had testified falsely or obtained the facts he testified to from another officer. We are aware the case of People v. Elias, Supreme Court of Illinois (April 24, 1925), 147 N. E. Repr. 472, holds to the contrary. The following quotations from that case seems to state the gist of the case (page 475): "A charge is not supported by affidavit unless it is supported by documentary evidence or testimony under oath competent to establish the charge in a court."

If that be the law and it is necessary to produce before the magistrate evidence sufficient to convict the defendant in court before he can issue a search warrant, few, if any, search warrants can ever be issued, nor would there be any necessity of issuing the same.

We believe the dissenting opinion of Farmer, J., in that same case (page 477), is the more reasonable, and that what the dissenting judge lacked in voting power is more than made up by the reasoning of his opinion.

We will now proceed to the finding of facts as requested.

"1. The complaint upon which the search warrant was issued did not describe the building to be searched or its location."

Answer: We so find. The complaint in this case did not describe the building complained of otherwise than that it was situated in Sayre Borough, Bradford County, Pennesylvania.

"2. The complaint recited probable cause in general terms only on a form prepared for use in all cases, without giving any specific information, and is wholly made up by conclusions."

Answer: Refused. The complaint states facts and not conclusions. Whether complainant had such personal knowledge as would make him a competent witness to establish the facts set forth in the complaint is another question. He did swear to them, and the justice testifies he believed them and based his finding that probable cause existed thereon.

"3. The facts recited in the said complaint are untrue in the following particulars: The complaint recites, ‘after due, thorough investigation, there is probable cause to believe, and affiant has just and reasonable cause for believing, and does believe, that intoxicating liquor is being unlawfully manufactured, sold, offered for sale, bartered, furnished, transported and possessed for beverage purposes, and that certain containers thereof, mash, stills, coils, implements and other property designed and intended for use in the unlawful manufacture, sale and furnishing of intoxicating liquor for beverage purposes

Commonwealth v. Dabberio.

are unlawfully possessed. . . .' The truth being that the affiant had made no investigation and had no cause for believing any of the facts therein recited and his knowledge upon the subject was based solely upon information given him by the district attorney, which information had previously been received by the district attorney from other persons and not from any investigation or knowledge which he himself possessed."

Answer: Refused as stated. We cannot find that, after such an investigation as the district attorney made, there was no probable cause for believing, nor can we find that the affiant did not have reasonable cause for believing, nor can we find that he did not believe, intoxicating liquors were being sold, etc. Probable cause for believing that the defendant was violating the law did actually exist, for the result of the search makes the prima facie case thereof. We do find that the complainant had only such information as was given him by the district attorney.

"4. The complaint also contains the following statement: "That the following are reasons for the probable cause above recited and affiant's belief, to wit: That he has been informed by credible persons that they have bought from the defendant intoxicating liquor at the place described, and from his own observation he is satisfied that there is probable cause to believe that the premises are being used as above set forth because of the character of the persons frequenting the said premises, their habits and the fact that they had been using, while frequenting said premises, intoxicating liquor, and he has been informed by credible persons that the said premises are being used for the unlawful sale of intoxicating liquor, and from his own observation and from the information obtained he is satisfied the said premises are being used unlawfully for the purpose above set forth,' and at the time this complaint was made there were no premises described therein. The affiant did not know their location, had never been therein; he had not been informed by credible persons that they had bought intoxicating liquor at this place; he had made no observation whatever of the premises or of the character of the persons frequenting the premises or their habits, and he had not been informed by credible persons who claimed to have knowledge that the premises were being used unlawfully as therein set forth."

Answer: We so find, because no specific premises were described in the complaint.

"5. The complainant gave to the justice of the peace no other information than that contained in the affidavit for the search warrant."

Answer: We so find.

"6. The magistrate issuing the search warrant made no investigation and did not determine there was probable cause, but assumed that he should issue a search warrant when a complaint in this form was sworn to before him." Answer: Refused. We think the magistrate did determine there was probable cause.

"7. The search warrant, when issued, was made out in blank and did not contain the description or location of the premises, and neither the complainant nor the justice of the peace knew where the premises were located at that time, but arranged for the officer to find out where the premises were located to search and then to have their description and location inserted into the warrant and complaint afterwards."

Answer: We so find.

"8. The information in this case was prepared by David J. Fanning, District Attorney of Bradford County, was handed to Edmund Roos, a member of the State Police, and he took it to the justice of the peace and swore to it

Commonwealth r. Dabberio.

without having had any information on the subject from any person other than the district attorney."

Answer: We so find.

"9. The information possessed by the district attorney was based wholly upon what had been told him by other persons, the principal part being information given him by a committing magistrate at Sayre, which was itself based upon hearsay."

Answer: We so find.

Conclusions of law.

"1. The complaint in this case in the form in which it existed at the time the search warrant was issued was insufficient and could not form the basis of a legal search warrant."

Answer: Affirmed. The description of the place to be searched was too indefinite and uncertain.

"2. The act of the justice of the peace in issuing a search warrant upon the complaint in this form was a nullity."

Answer: Refused as stated. If it be conceded, as stated in this conclusion, that a search warrant actually issued, we do not think it was a nullity, but we do think the paper issued did not amount to a search warrant, because it described no place to be searched, and was, therefore, no search warrant at all.

"3. The act of the justice of the peace in issuing a search warrant without making any investigation, and himself determining that probable cause existed, was illegal."

Answer: Refused. This is refused if it means the justice must make a personal investigation before determining that probable cause existed. We hold that the complaint made by Corporal Roos, and which the justice of the peace testified he believed, was sufficient to warrant him in determining that probable cause existed.

"4. The search warrant issued in blank, without describing the property and giving its location, was illegal and a nullity and gave the officer no power to search any property."

Answer: Affirmed.

"5. A search warrant issued by a magistrate, before whom evidence constituting probable cause has not been produced and without any proper finding of probable cause, is illegal and does not justify its holder in searching any one's premises."

Answer: If it is meant by this request that a search warrant which shows upon its face that it is invalid will not justify the officer to whom it is issued, we affirm the same, but if it is meant that a search warrant which is perfectly regular and valid upon its face is not a justification to the officer executing it, because the magistrate who issued it did not make the necessary inquiry before determining that probable cause existed for issuing it, we refuse the same.

"6. Edmund Roos, the officer, did not have in his possession at the time when he swore to the complaint and obtained the search warrant information constituting probable cause justifying the issuance of the search warrant.” Answer: Refused. This conclusion raises a clean-cut question. We believe that when a district attorney states to a police officer, who is acting under him, that he has made an investigation, that he has been told by credible witnesses that they have purchased intoxicating liquors from a certain