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COMMONWEALTH v. SMITH. (09/12/63)

September 12, 1963

COMMONWEALTH, APPELLANT,
v.
SMITH.



Appeal, No. 140, Oct. T., 1963, from order of Court of Quarter Sessions of the Peace of Philadelphia County, Sept. T., 1962, Nos. 25 and 26, in case of Commonwealth of Pennsylvania v. Peter A. Smith et al. Order reversed.

COUNSEL

Charles Jay Bogdanoff, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellant.

David H. Kubert, for appellees.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Rhodes

[ 201 Pa. Super. Page 513]

OPINION BY RHODES, P.J.

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Philadelphia County at Nos. 25 and 26, September Sessions, 1962, granting the pre-trial petition of defendants, Peter A. Smith and Alan Bass, to suppress evidence which consisted of marijuana found on the person and in the apartment of Smith on August 1, 1962.

On February 4, 1963, defendants petitioned the Court of Quarter Sessions of Philadelphia County, asking that the evidence, consisting of seized marijuana, be suppressed as illegally obtained through an unreasonable search and seizure. The District Attorney filed an answer. A hearing was held on March 1, 1963, before BLANC, J., who thereafter granted the petition to suppress.

The evidence produced at the hearing disclosed the following: On August 1, 1962, between 12:30 and 12:40 p.m., Officer Miller of the narcotics squad received information from a reliable informant that defendant Smith, whom he described to the officer in detail, had marijuana in his pocket, and that he would be found in Rittenhouse Square, Philadelphia. The information was received by Officer Miller when he was a block and a half from Rittenhouse Square. The informant told Officer Miller that Smith also had marijuana in his apartment. Defendant was described as being five feet five inches tall, having light blonde hair, and wearing a short-sleeved shirt and khaki pants or overalls. The informant had given reliable information fifteen or twenty times during a period of three months prior to the present incident. When Officer Miller entered Rittenhouse Square with other narcotics officers, at about 12:50 p.m., he saw Smith standing in the park. He approached Smith and observed two manila envelopes in Smith's upper left pocket of his shirt. Officer Miller disclosed his identity to Smith and asked

[ 201 Pa. Super. Page 514]

    him: "Do you have anything on you that you are not supposed to?" Smith replied in the negative. Officer Miller then said: "You have marijuana on your person." Smith was then taken into custody and the two manila envelopes containing marijuana were removed from his shirt pocket. Smith stated he had nothing to hide and invited the officers to search his apartment. The officers accepted Smith's invitation and accompanied him to his apartment, where they identified themselves to defendant Bass who was incoherent. A search of the apartment revealed additional quantities of marijuana.

The issues raised by the Commonwealth are (1) whether an officer has reasonable grounds to search a defendant where the officer has information from a reliable informant and the information is confirmed by what the officer observes; and (2) whether the search of defendant's apartment was lawful when defendant gave permission to search it.

In Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, the Supreme Court of the United States held that the Fourth Amendment, which prohibits the use of evidence obtained by an illegal search and seizure, is enforceable against the states through the Fourteenth Amendment. In the recent case of Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726, 738, the Supreme Court of the United States said: "We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the 'fundamental criteria' laid down by the Fourth Amendment ...


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