Search and Seizure • Application for Search Warrant • Pa.R.Crim.P. 203(C) • Audio-Visual Communication

Commonwealth v. Wiggins, PICS Case No. 14-0405 (C.P. Montgomery Feb. 19, 2014) Smyth, J. (36 pages).

The court of common pleas granted defendant’s motion to suppress evidence found in a search of his residence where police applied for, and the district judge issued, a search warrant without the benefit of an audio-visual communication, as required by Pa.R.Crim.P. 203(C). Affirmance recommended.

Defendant was charged certain criminal offenses related to drug possession. Prior to trial, he moved to suppress evidence seized by police from his apartment conducted under the putative authority of a search warrant obtained from a magistrate. The court of common pleas granted defendant an order of suppression.

The commonwealth filed an appeal, prompting the court’s opinion. The commonwealth argued that the court erred in suppressing evidence retrieved from defendant’s apartment on the basis of technical violations of the Pennsylvania Rules of Criminal Procedure regarding search warrants.

According to the commonwealth, the purported violations did not implicate fundamental, constitutional concerns, they were not conducted in bad faith and they did not substantially prejudice defendant. The court noted that under the “four corners” rule, only evidence contained within the four corners of an affidavit may be considered to establish probable cause for a search warrant.

The court first found that the commonwealth violated Pa.R.Crim.P. 208 in that a copy of the warrant completed and approved by the issuing authority was not left at the premises searched. The court found unsatisfactory the police explanation as to why they had left a copy of the warrant signed only by the affiant and not the by issuing magistrate.

The court also found unsatisfactory the police explanation as to why the copy of the warrant the commonwealth produced at the suppression hearing seemed to indicate being sent by fax to the magistrate at 6:45 a.m., being signed at 7:00 a.m. and being sent by facsimile to police at 7:48 a.m. “However, we did not explicitly find that the police actually executed the warrant before the issuing authority approved it, because evidence upon which to base such a finding was simply too conflicting.”

The court found that discrepancies between the uncompleted warrant left at the searched premises and the copy the commonwealth produced at the suppression hearing heightened the importance of a violation of Pa.R.Crim.P. 210, which requires that the search warrant, supporting affidavits and inventory be returned to the district justice who issued the warrant and thereafter filed with the clerk of courts to the county where the search took place.

The absence of an original warrant either signed by or returned to the magistrate by the police after the search made comparison of such a document with the copy of the warrant the commonwealth produced impossible. Thus, the court could not answer any of the questions raised by the timing of the executed warrant and its transmission by fax back and forth between the affiant and the magistrate.

The court reasoned that the failure to file the returned search warrant with the clerk of the Court of Common Pleas of Montgomery County denied defendant certain access to the warrant, i.e., access that might have allowed him to piece together the circumstances of the warrant’s issuance in a more complete way. Thus, the theory that police performed the search before securing an executed copy of the warrant, though plausible, was unverifiable.

The court also addressed the most significant violation in this case – the decision to apply for and issue a warrant without the benefit of an audio-visual communication, as required by Pa.R.Crim.P. 203(C). The court found that in a case such as this, where there was no prior acquaintance between the affiant and the district judge, the minimum visual contact required by the rule should have taken place.

The court reasoned that while the subjective good or bad faith of the officers and judges involved was not in evidence, there is no “good faith” exception to the exclusionary rule. The court found, nonetheless, that the procedures employed by police in obtaining and executing the subject warrant provided proper grounds for suppressing the evidence. As such, the court recommended affirmance.