Commonwealth v. Ribot
The Pennsylvania Superior Court has just held that police may testify to the use of pre-recorded buy money in confidential informant drug cases even where the police returned the money to general circulation after it was recovered, thereby losing it. In the case of Commonwealth v. Ribot, the Superior Court overturned the Philadelphia trial court’s order granting a defense motion in limine. The trial court's order precluded a police witness from testifying about the use and recovery of pre-recorded buy money in a drug case where police did not put the money, which had allegedly been used by a confidential informant to purchase drugs, into evidence after recovering it.
Confidential Informants and Pre-Recorded Buy Money
In Ribot, Philadelphia Police narcotics officers arranged for a confidential informant to purchase heroin from the defendant. In these types of cases, the police officers will usually take some steps to record the serial numbers of the bills used to buy the drugs prior to having the CI make a purchase of narcotics. This way, when police arrest a suspect or execute a search warrant, they will have a stronger case of Possession with the Intent to Deliver against the person who is found in possession of the previously recorded buy money because the officers will testify that that person must have obtained the money from the Confidential Informant in exchange for drugs. Here, the officers entered the serial numbers of the bills into a computer database prior to giving the bill to the confidential informant. An officer then printed out a time stamped copy of the computer entry and circled the serial number of the bill which was to be used in that day’s narcotics surveillance.
After “recording” the serial number of the bill in this manner, the police officer transported the CI to the street and sent the CI to buy heroin. The CI allegedly used the buy money to purchase heroin from the defendant, and the CI turned that heroin over to the police. The police then arrested the defendant and recovered the pre-recorded buy money. Instead of putting it on a property receipt and preserving it for trial, the police then put it back into circulation to use in future investigations.
Possession with the Intent to Deliver Charges
After being arrested and charged with Possession with the Intent to Deliver (“PWID”) of heroin, the defendant made a motion in limine to exclude any mention of the buy money at trial under the Best Evidence Rule and as a discovery sanction for the Commonwealth’s failure to preserve evidence. The Philadelphia trial court held a hearing, and the officer testified that it was normal police procedure for the police to get rid of the money and use it in other investigations. Of course, the defense attorney impeached the officer with police directives which require that the money be preserved for trial.
The Best Evidence Rule and Pre-Recorded Buy Money
The trial court granted the motion in limine and precluded the Commonwealth from eliciting any testimony about the exchange of money. The prosecution appealed to the Superior Court, and the Superior Court reversed. First, the Superior Court held that mentioning the use of the money and the way in which it was recorded did not violate the Best Evidence Rule despite the fact that introducing the money itself would have been the best evidence. Under the Pennsylvania Rules of Evidence, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.” This means that in a contract dispute, the parties may not try to prove the contents of the contract through oral testimony. Instead, the party seeking to offer evidence of a contract must introduce the actual contract into evidence.
Obviously, the money itself would be the best evidence of the fact that the money was used in the investigation. However, there are limits to the Best Evidence Rule in that it only applies when the contents of the document are necessary to prove the case or an element of the offense or defense. Thus, Rule 1002, the Best Evidence Rule, requires that an original writing, recording, or photograph be introduced at trial only if the proponent must prove the contents of the writing, recording, or photograph to prove the elements of its case.
Here, the actual serial number of the buy money was not essential for the Commonwealth to prove the elements of the case. Instead, the charges required the prosecution to show that the defendant sold drugs to the Confidential Informant, not that the bills had a certain serial number on them. The Court held that although police may not have followed the best procedures when they failed to preserve the evidence, the Best Evidence Rule does not prevent them from testifying about the money's existence and use. The Court also noted that its ruling would not leave the defendant without a remedy. At trial, the defendant would have ample opportunity to cross examine the police officer as to what happened to the money and suggest that the money was not actually recovered.
The Court noted:
“While evidence of the officer’s entry of the bill’s serial number into the computer may be less strong than either of those alternatives, that means only that such evidence is more vulnerable to attack, not that it is inadmissible. At trial, Ribot’s counsel would have ample opportunity to cross-examine [the officer] about the buy money and his method of pre-recording its serial number.”
In some cases, it may also be possible to request a missing evidence jury instruction, and jury instructions can be very important.
Finally, the Superior Court concluded that the Commonwealth should not face discovery sanctions for destroying evidence because the Commonwealth never actually possessed the buy money. This analysis obviously creates a line between the prosecution and the police which does not really exist, and many other cases have held that the contents of the police file can be attributed to the prosecutor. Nonetheless, the Superior Court reversed the trial court’s order and remanded the case to the Court of Common Pleas for trial on the drug charges.
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