Appeal, No. 351, Oct. T., 1962, from order of Court of Quarter Sessions of the Peace of Philadelphia County, June T., 1961, No. 988, in case of Commonwealth of Pennsylvania v. Irvin Pittman. Order reversed.
Arlen Specter, Assistant District Attorney, with him Louis F. McCabe, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Robert N.C. Nix, Jr., for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
On January 30, 1961 Officer Francis Stewart, with two fellow officers, was in a motor car on South Street in the 1500 block. Perceiving a man on the street who had on 10 or 15 occasions given Stewart accurate information concerning possessors of narcotics, Stewart alighted from the car and approached the man. The informant told him that appellee, Irvin Pittman, had narcotics on the premises at 1536 South Street, which was half a block from them as they talked. Officer Stewart, with another officer, walked to the barber shop, which was open for business, and entered it. They did not see appellee in the shop but heard persons talking in the basement. They descended to the basement and observed appellee and another man, Pope, a known addict, sitting in front of a trash basket. The men offered no comment but rose and Officer Stewart removed the trash basket, revealing a brown paper bag, the contents of which proved to be heroin. Other packets likewise containing heroin were found in the rafters of the cellar. The officers took the narcotics, with the appellee, Pope, and one of the barbers, Wilson, to the office of the Narcotics Squad. At the office appellee made a statement in writing admitting that he owned the heroin, having purchased it in New York. He exonerated Pope and Wilson from any knowledge or connection with the narcotics. A petition and motion to suppress the evidence was filed by appellee and, after hearings, the court below granted the petition to suppress the evidence. The Commonwealth appealed.
Where the order suppressing evidence as having been obtained by illegal search and seizure in effect
terminates the prosecution, it is definitive and appealable by the Commonwealth: Com. v. Richards, 198 Pa. Superior Ct. 39, 42, 182 A.2d 291.
In the Richards case we reversed the court below, which had granted defendant's motion in arrest of judgment on the ground that the narcotics were illegally seized without a search warrant. In that case we held that the search and seizure were not unreasonable under all the facts present in that case. The facts of that case are very similar to the facts in this case, with the exception that in the Richards case the informer told the police that the defendant was planning to leave his apartment. In the present case Officer Stewart testified that he didn't get a warrant because "I thought we didn't have time. There was no way of keeping the place under surveillance. We didn't know if we were seen in the neighborhood, and by us leaving someone in surveillance, we would have been seen." He also testified: "I'm afraid we wouldn't have gotten any evidence. My belief was that persons had seen us on South Street, and, if we had left, information would have gotten back to the barber shop and we wouldn't have gotten the evidence."
The Commonwealth argues that it was unreasonable to require a search warrant because of the probability that the police had been "spotted" and immediate action was necessary to forestall removal of the contraband before a warning could be given to the appellee. The Commonwealth asks the court to take into consideration the general nature of the locale. It states that 15th and South Streets has been the scene of mob attacks on officers attempting to make an arrest. It is a busy street and the good citizens on the street are not friendly to police officers. It argues that the fear of the ...