# Commonwealth v. Gray > Supreme Court of Pennsylvania · July 11, 1984 · 322 Pa. Super. 37 URL: https://www.frixlaw.com/law-library/cases/9709679 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Ronald GRAY, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** July 11, 1984 - **Citations:** 322 Pa. Super. 37; 469 A.2d 169 - **Precedential status:** Published - **Opinion:** Concurrence by Brosky - **Judges:** Brosky, Wieand and Cirillo - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9709679 ## Opinion text BROSKY, Judge, concurring: I concur in the result. In my view Illinois v. Gates should not be applied retroactively, and under the AguilarSpinelli standard which would then apply I would find the instant search warrant defective. However, since this Court has, in another case, spoken on the issue of Gates ’ retroactivity in the affirmative, I am constrained to follow precedent and concur in the result, rather than dissent. 1 Also, rather than merely adopting the Gates standard, I would have preferred a careful consideration as to whether this Commonwealth chooses — as is its right — to adhere to the stricter standard that has heretofore been the law. However, by applying the Gates standard to cases before it, this Court has made that standard the operative law of this Commonwealth. Even if that action was not based upon a recognition of the choice which was available to us, the current legal standard in this Commonwealth is, nonetheless, Gates. Accordingly, I am again obliged to concur rather than dissent. Retroactivity The recent case of Commonwealth v. Price, 318 Pa.Super. 240 , 464 A.2d 1320 (1983) held that Gates is to be applied retroactively. *50 Appellee would contend, of course, that Gates was not the law at the time that the police sought the warrant from the magistrate and that, therefore, Gates is inapplicable and cannot now be applied retrospectively to validate a search warrant already found defective under the two-pronged test. This assertion of appellant [sic] overlooks the fact that an effect of the Gates decision was to enable the State of Illinois to proceed to trial against John Gates and to utilize in the presentation of the case of the prosecution the very evidence seized pursuant to the warrant of the magistrate but suppressed by the hearing judge. Id., 318 Pa.Superior Ct. at 247-248, 464 A.2d at 1325 . This analysis itself overlooks the principle of jurisprudence that a case can itself be applied retroactively without its new rule of law being applied retroactively to other cases. Indeed, if this were not so, all cases would have prospective effect only. The question then is whether Gates should be applied retroactively. The guidelines to be used in making this type of decision have been laid down in the United States Supreme Court decision of U.S. v. Johnson, 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982). “Conversely where the Court has expressly declared a rule of criminal procedure to be 'a clear break with the past,’ it almost invariably has gone on to find such a newly minted principle nonretroactive.” Id. 457 U.S. at 549 , 102 S.Ct. at 2587 , 73 L.Ed.2d at 213 . This Court has found that Gates “abandon(ed) the Aguilar-Spinelli test ...” Commonwealth v. Price, supra, 318 Pa.Superior Ct. at 246, 464 A.2d at 1324 . I agree with this characterization. In substituting a “totality of the circumstances” test for the “two prongs” of Spinelli, Gates has undeniably wrought an important change in the law. A further consideration is the “effect on the administration of justice of a retroactive application of the new rule.” U.S. v. Johnson, supra, 457 U.S. at 549 , 102 S.Ct. at 2587 , 73 L.Ed.2d at 214 . Justice cannot be effectively adminis *51 tered if Gates is retroactively applied. A defendant, through his counsel, could rely upon an evaluation of a search warrant defective under Aguilar-Spinelli. This reliance could lead him to forego certain options available to him, such as a plea bargain, on the well-founded conclusion that the fruits of the search would be suppressed at trial or on appeal. Then, while his appeal is pending, a change in the law could transmute the defective search warrant into a valid one. The law should not work in such a capricious manner. In this Commonwealth, at least, Gates should not be applied retroactively. Application of Aguilar-Spinelli The search warrant in question was unsupported by probable cause in relation to the first prong of Aguilar-Spinelli: underlying circumstances from which the issuing authority could conclude that the informant was reliable and credible. Aguilar v. Texas, 378 U.S. 108 at 114 , 84 S.Ct. 1509 at 1514 , 12 L.Ed.2d 723 at 728-29 (1964). None of the four criteria used to evaluate the credibility or ■ reliability of an informant were present. See U.S. v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971). Specifically, the informant’s story was not corroborated by other sources, nor was there any properly supported information as to informant’s reputation. 2 Option for Higher Standard States have the option to accord the individual greater protection than is afforded by the interpretations of the United States Constitution of the U.S. Supreme Court or the applicable Circuit Court of Appeals. 3 This can be done on *52 the basis of our interpretation of the federal or of our state constitution. This Commonwealth’s appellate courts have exercised this option in the past. I do not express an opinion as to whether this Commonwealth should choose to adhere to the Aguilar-Spinelli standard rather than adopting Gates for application in this state. I do, however, think that, whatever the final result, the people of this Commonwealth would have been better served by a consideration of this option. I concur in part and concur in the result. . Since the search warrant in question does, I conclude, meet the Gates standard, I concur in that portion of the majority opinion which also reaches that conclusion. . Supporting these conclusions by reference to the record would bé a fruitless exercise, since it is acknowledged that Gates is the current standard and the instant warrant meets that standard. . It is only the converse which is prohibited. That is, the states cannot restrict the individual’s rights further than those interpretations allow. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709679. Public record. Not legal advice.