Appeal, No. 381, Jan. T., 1962, from order of Superior Court, Oct. T., 1962, No. 122, from order of Court of Quarter Sessions of Philadelphia County, July T., 1961, No. 802, in case of Commonwealth of Pennsylvania v. Frank Bosurgi. Order affirmed.
David N. Savitt, with him John Patrick Walsh, for appellant.
Arlen Specter, Assistant District Attorney, with him Charles Jay Bogdanoff and Louis F. McCabe, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The first "search and seizure" question to reach this Court since the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, is presented upon this appeal.
On July 10, 1961,*fn1 at approximately 10:30 p.m., a burglary occurred at a wholesale jewelry store in Philadelphia in the course of which some watches and jewelry were stolen. The police were notified and they entered upon an investigation of the store and its immediate neighborhood, meanwhile requesting persons in that area to report to detective headquarters any person seen "with watches". On July 11, 1961, about 6:00 p.m., a telephone call from an undisclosed source*fn2 was received at detective headquarters and referred to Detective
Kelly, an officer investigating the burglary. The caller informed Detective Kelly that there was a man - described as having bushy grey hair, needing a shave, short in stature, Italian in appearance, and attired in tweed pants and a striped shirt - in a certain taproom, located in the vicinity of the burglarized store, who was "attempting to sell watches" to the taproom customers.
Immediately pursuant to this call, Detective Kelly, with a Detective Sabarro, visited the described taproom but found no one there who answered the description of the person referred to in the telephone call. However, in a nearby taproom, located across the street from the burglarized store, the detectives found a man named Frank Bosurgi who fully answered the description. Bosurgi, seated at a table, was directed to stand up and Detective Kelly "turned the man around", "patted him down from the back", and, when he reached the trousers' pockets, "felt objects there, bulky objects" which felt like watches. From Bosurgi's trousers' pockets Detective Kelly removed ten watches, eight of which were later identified as part of the stock taken from the burglarized store.
While removing the watches from the trousers' pockets, Detective Kelly noticed "particles in there, pieces of bits of glass, little pieces of ringlets, possibly from a bracelet."*fn3 Bosurgi was immediately taken to police headquarters where he was requested to and did remove his trousers; the trousers were vacuumed and glass particles, similar to those previously obtained, were found therein.
It is an undisputed fact that the detectives had no warrant either to arrest or search the person of Bosurgi.
Given a hearing before a magistrate, Bosurgi was held over on charges of burglary, larceny and receiving stolen goods and later was indicted on these charges. Sometime thereafter and prior to trial, Bosurgi's counsel moved to suppress the watches and glass particles as evidence alleging they had been obtained as the result of a ...