Commonwealth v. Lardo

Concurring and Dissenting Opinion by

Spaeth, J.:

This appeal comprises two cases, No. 287 and No. 342, both of the April Term 1975. The briefs, however, deal only with No. 287. 1 Since No. 342 was not briefed, and since my proposed holding in No. 287 would not disturb the lower court’s judgment in No. 342, I shall discuss only No. 287, in which the facts are as follows.

A search warrant was issued on June 6, 1974, on J.P. Criminal Form 74-R2006. The warrant was executed on the same day and evidence was seized that led to a charge against appellant of operating a lottery. Appellant filed a motion to suppress on the ground that the search warrant was defective. On October 24, 1974, the motion was denied, and appellant was tried and convicted of operating a lottery. Post-trial motions were filed and denied, and this appeal followed.

Form 74-R2006 was prepared by the office of the Court Administrator of Pennsylvania in an effort to comply with the Pennsylvania Rules of Criminal Procedure regarding search warrants. Pa.R.Crim.P. *118 2001-2010. Rule 2006 sets forth two sample forms, one for the application for the search warrant, and one for the warrant itself. Form 74-R2006 is not an exact duplicate of the samples, nor must it be, for Rule 2006 requires only that “[e]very application for a search warrant” and “[e]very search warrant” shall be “substantially” in the same form as the samples.

According to the forms set forth in Rule 2006, the issuing authority is to sign his name and impress his seal twice: at the end of the application for the warrant, and at the end of the warrant itself. 2 Form 74-R2006, however, combines the application for the warrant and the warrant into a one-page form, and provides only one place for the signature and seal of the issuing authority — at the bottom of the page, i.e., at the end of the warrant.

I

Appellant contends that since the signature and seal of the issuing authority are at the end of the warrant, they cannot function as a jurat for the application. Therefore, appellant reasons, the recitation of probable cause in the affidavit is unsworn, and the warrant must be held defective as inadequately supported.

The requirements for a valid search warrant are found in the Fourth Amendment of the United States Constitution; Article I, Section 8 of the Pennsylvania Constitution; Pa.R.Crim.P. 2003; and Section 1991 of the Statutory Construction Act of 1972, Act of Nov. 25, 1970, P.L. 707, No. 230, added Dec. 6, 1972, P.L. 1339, No. 290, §3, 1 Pa. C.S. §1991 (definition of “Affidavit”). I agree with the majority that the requirement of only one *119 signature and seal by the issuing authority is not by itself so violative of these provisions as to necessitate invalidation of Form 74-R2006 and the consequent suppression of the seized evidence.

I nevertheless suggest that the lack of a separate jurat immediately beneath the signature of the applicant for the warrant is troublesome enough to require that issuing authorities discontinue use of Form 74-R2006 and use instead a form providing for such a separate jurat. If no such form is yet available, they should insert such a jurat on Form 74-R2006.

One danger of Form 74-R2006 is that the person who provides the information establishing probable cause to search may not personally appear before the issuing authority to swear to his statements, as required by the constitutional and statutory provisions and by the rules. The place for the issuing authority’s signature and seal is immediately after the following statement:

“WHEREAS, facts have been sworn to or affirmed before me by written affidavits attached hereto ....” (Emphasis supplied.)

An applicant or issuing authority who does not carefully read the entire form may mistakenly believe that submission of written affidavits can substitute for personal appearance.

Another danger of Form 74-R2006 is that the issuing authority may not understand that he must perform two distinct acts, the first of which is a prerequisite to the second. First, he must administer an oath to the applicant, who must swear that the statements in his application for the warrant are true. Second, he must determine whether the affidavit as thus completed provides probable cause to search; if it does, he must sign, seal, and issue the warrant. See Comment (a) to Pa.R.Crim.P. 2003.

Form 74-R2006 has already caused confusion in some *120 courts 3 and some district attorneys’ offices. At least one district attorney — the district attorney of Dauphin County — has sent a memorandum to Dauphin County authorities suggesting that they add a jurat to the application for the warrant. On November 25, 1974, the office of the Court Administrator sent a memorandum to all president judges, district justices of the peace, district attorneys, court administrators, and form printers informing them of the Dauphin County district attorney’s suggestion. This memorandum, however, only recommended “such action as you deem appropriate;” it did not direct the addition of the jurat. Beyond this, no further official action has been taken.

I therefore respectfully suggest that Form 74-R2006 be officially revised to include a jurat at the end of the application for the warrant. Any further difficulties could be avoided by duplicating the forms set forth in Rule 2006.

II

The case does not end there, however. Appellant also contends, and the majority agrees, that not only was there no jurat on the application for the warrant, but there was none on the form at all. According to the majority, before the suppression hearing the Commonwealth moved to amend the application and warrant, whereupon an amendment hearing was held during which the magistrate signed and sealed the form for the first time. If this is so, I cannot agree with the majority that such an amendment was permissible.

*121 -A-

In Commonwealth v. McAfee, 230 Pa. Superior Ct. 336 , 326 A.2d 522 (1974), the application for the warrant, which was on a form separate from the warrant, had no issuing authority’s jurat. In holding that defect fatal to the warrant, we said:

“[I]t has never been the law that anything less than a written oath or affirmation is acceptable under the Pennsylvania Constitution.... The provision in the constitution that the warrant be ‘supported by oath or affirmation subscribed to by the affiant’ implies that there be some written record of the fact that the affiant was in fact sworn to which he can subscribe. Mere oral testimony that the affidavit upon which the warrant issued was made under oath would not comply with this clause. Any other interpretation would render the constitutionally provided safeguard meaningless.” Id. at 339 , 326 A.2d at 523 .

Thus, if here no written record of the oath appeared on the warrant at the time it issued, neither later testimony by the magistrate that an oath was administered, nor a post-issuance addition of the jurat, could validate the warrant. See Commonwealth v. Milliken, 450 Pa. 310 , 300 A.2d 78 (1973), where the Supreme Court held that after the new search warrant rules were promulgated, 4 only the written record prepared contemporaneously with the issuance of the warrant may be offered in support of the warrant.

The majority’s reliance on Pa.R.Crim.P. 150 to provide a basis for the amendment of the warrant is misplaced. Rule 150 applies only to complaints, citations, summonses and arrest warrants. That search warrants are not covered by the rule is clear both from the *122 wording of the rule, 5 and from its placement in the chapter entitled “Procedure in Court Cases,” rather than in the chapter entitled “Search Warrants.”

-B-

This leaves us with the question of whether in fact the warrant was issued without a jurat. I do not think the record adequate to answer this question.

Although the lower court’s opinion and appellant’s brief support the majority’s view of the facts, the Commonwealth’s brief says that the warrant was signed at issuance, and that at the amendment hearing the magistrate added a second jurat. The Commonwealth cannot be correct, for the warrant, which is in the record, shows only one jurat. The record does not show, however, when that jurat was placed on the form. Indeed, the record does not even show whether an amendment hearing was held. The only mention in the record of an amendment is a brief, unexplained comment by the assistant district attorney at the suppression hearing that “this is one of the affidavits that has been amended.” There are no notes of testimony from the alleged amendment hearing, nor is there any docket entry showing that such a hearing was held.

In these circumstances I would remand for an evidentiary hearing to determine when the jurat was placed on the warrant. If the warrant was signed and sealed at issuance, then the judgment of the lower court should stand.' If the jurat was added after issuance, however, the lower court should vacate the judgment of sentence and order the evidence seized pursuant to the warrant suppressed.

Hoffman, J., joins in this opinion.

. On April 7, 1975, appellant’s petition to consolidate No. 287 and No. 342 was, with the consent of opposing counsel, granted. The order stated that only one brief was required. While such an order means that a separate brief need not be submitted for each case, the one brief must deal with both cases. One brief dealing with only one case is not sufficient, for it gives us no basis on which to decide the unbriefed case.

. In some circumstances the rule contemplates a third signature. Thus it provides that “[i]f issuing authority finds reasonable cause for issuing a nighttime warrant ..., this following [separate form, signed and sealed by the issuing authority] must be additionally completed.”

. See, for example, Commonwealth v. Miller, 240 Pa. Superior Ct. 750 (1976); Commonwealth v. Gingrich, No. 94 September Term, 1974 (Cumberland County, 1974).

. Pa.R.Crim.P. 2000-2010 were adopted March 28, 1973, and became effective sixty days thereafter.

. Rule 150 begins, “No person arrested under a warrant ....” (Emphasis added.)