June 12, 1962
Appeals, Nos. 80 and 81, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1960, Nos. 1403 and 1404, in case of Commonwealth of Pennsylvania v. Samuel Richards. Order reversed.
Arlen Specter, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Isaiah W. Crippins, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 41]
OPINION BY RHODES, P.J.
Defendant was found guilty by a judge sitting without a jury on all counts of an indictment charging possession of drugs, assault and battery upon a police officer, and resisting arrest. At trial defendant's preliminary motion to suppress certain evidence, consisting of bags of marijuana, allegedly obtained by the police through an illegal search and seizure at defendant's apartment was overruled after an extensive hearing. Following the trial and the finding of guilty, the court below granted defendant's motion in arrest of judgment on all counts solely on the ground that the narcotic drugs were illegally seized and the arrest was invalid. In so ruling the court below held that the recent decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, compelled a conclusion that the search and seizure without a warrant in the present case were illegal and the evidence obtained should have been excluded. The Commonwealth has appealed.
The right of the Commonwealth to appeal from an order arresting judgment after a verdict of guilty is clear. Com. v. Kolsky, 100 Pa. Superior Ct. 596, 599;
[ 198 Pa. Super. Page 42]
obtained thereunder must, under the Fourteenth Amendment, be excluded in state criminal prosecutions. Not all searches and seizures are prohibited, those which are reasonable not being forbidden. 79 C.J.S., Searches and Seizures, § 8, p. 786.
Section 8, article I of the Constitution of the Commonwealth of Pennsylvania contains a provision similar to the Fourth Amendment to the Constitution of the United States guaranteeing privacy. In Pennsylvania "Whether search and seizure is or is not unreasonable must be determined from the facts in each particular case." Com. v. Husinger, 89 Pa. Superior Ct. 238, 241; affirmed 290 Pa. 185, 138 A. 683. "What is 'unreasonable' is left to judicial determination." Com. v. Dugan, 143 Pa. Superior Ct. 383, 386, 18 A.2d 84. In fact, the general principle of law is the same under the federal rule. As Mr. Justice MINTON stated in United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653, 659: "What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case." Mr. Justice FRANKFURTER pointed out in his concurring opinion in Chapman v. United States, 365 U.S. 610, 618, 81 S.Ct. 776, 781, 5 L.Ed.2d 828, 834: "Surely it is fair to say that the lower courts and prosecutors have a right to proceed on the assumption, on the basis of controlling decisions, that whether or not a search is 'unreasonable' turns on the circumstances presented by a particular situation, as a matter of substantive determination."*fn3
[ 198 Pa. Super. Page 44]
The evidence produced at the trial and on defendant's motion to suppress discloses the following: Three officers of the narcotics squad received information on November 2, 1961, at approximately 4:45 p.m. from an informer at Fortieth Street and Girard Avenue, Philadelphia, that defendant illegally possessed narcotics in his second floor apartment at 3905 Poplar Street, two blocks distant. The informer was known to the officers as a reliable source and had given reliable information to police relative to possession of narcotics over a period of two or three years. The informer walked with the officers to 3905 Poplar Street and pointed out the building where defendant's apartment was located. The informer also told the police that defendant was planning to leave his apartment. One officer remained outside. Upon ringing the bell, the other two were admitted by the tenant of the first floor apartment. They ascended the stairs to the defendant's second floor apartment and, upon reaching the top, wer met by defendant who, without warning, grabbed one of the officers and threw him against the wall. At this point the officer identified himself and informed defendant that he was under arrest. Defendant hollered "They're here," and continued to scuffle with the officers. While one officer held defendant against the wall, the arresting officer heard someone running through the apartment. The officer thereupon kicked open the door in time to observe a man (later identified as Lawrence McCauley) run through the kitchen and dive, head first, through the window with a brown paper bag in his hand. The bag in McCauley's hand was found to contain 32.7 grams of marijuana. On searching the kitchen the officers found two brown envelopes, one containing 5.9 grams and the other 5.7 grams of marijuana.
It appears that the officers went to the apartment of defendant without a warrant to apprehend him for possession of narcotics. Under the Act of July 11,
[ 198 Pa. Super. Page 451917]
, P.L. 758, § 12, as amended, 35 PS § 865, the possession of such drugs constitutes a felony. There was probable cause and the officers had reasonable grounds to believe that a felony was being committed, and arrest without a warrant would be valid on that ground. Com ex rel. Spencer v. Ashe, 364 Pa. 442, 445, 71 A.2d 799. Arrest without a warrant is valid where "the officers had probable cause to believe that a felony was being committed in their very presence. Carroll v. United States, 267 U.S. 132, 156, 157, 69 L.Ed. 543, 552, 553, 45 S.Ct. 280, 39 A.L.R. 790." United States v. Rabinowitz, supra, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653, 657. In Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332, the Supreme Court of the United States held: "Probable cause exists where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 69 L.Ed. 543, 555, 45 S.Ct. 280, 39 A.L.R. 790."
Furthermore, the officers were lawfully upon the premises and the arrest of defendant for assault and battery committed upon them was also proper. In the instant case the arresting officer had probable cause to arrest defendant and reasonable grounds to believe that defendant had committed and was continuing to commit a felony. They had information from a reliable informer whose previous information led to at least ten arrests. Cf. Draper v. United States, supra, 358 U.S. 307, 79 S.Ct 329, 3 L.Ed.2d 327, 332. In addition, defendant, without warning, shoved one of the officers against the wall prior to his being arrested. Since the arrest was lawful it is clear that a reasonable search of the premises under defendant's control is also lawful without a search warrant as being incident
[ 198 Pa. Super. Page 46]
to the lawful arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, 1406.*fn4 Moreover, simultaneously with the arrest, they heard someone fleeing from defendant's apartment. It subsequently appeared that he was attempting to escape with a quantity of marijuana.
There is no merit to the argument that the officers had ample time to obtain a warrant or a search warrant. In any event, as said in the Rabinowitz case, supra, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the search turned upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant.
When we apply the test of "totality of facts" to the present appeal, it is clear that the search and seizure by the narcotics squad officers were not unreasonable. There was no invasion of defendant's constitutionally protected right to privacy. The court below erred in holding that the search and seizure were unreasonable under all the facts and that the evidence should have been excluded, and in granting defendant's motion in arrest of judgment.
WATKINS and FLOOD, JJ., dissent and would affirm on the opinion of the court below.
The order is reversed, the convictions are affirmed, and the records are remitted that the court below may impose sentence upon defendant.