Appeals from order of Court of Quarter Sessions of Philadelphia County, Feb. T., 1966, Nos. 665 to 668, inclusive, in case of Commonwealth of Pennsylvania v. John Friel.
Alan J. Davis, Assistant District Attorney, with him Paul R. Michel, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
John H. Clay, with him Ronald J. Brockington, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Hoffman, J., would affirm on the opinion of Judge Spaeth for the court below.
[ 211 Pa. Super. Page 12]
The Commonwealth appeals the order of the court below suppressing the admission into evidence of narcotics
[ 211 Pa. Super. Page 13]
seized as a result of a search without a valid warrant of appellee's automobile. The Commonwealth asserts the search can be justified on either of two arguments: (1) it was incident to a lawful arrest and/or (2) the search of the automobile under the circumstances was permissible without a warrant because the officers had probable cause to believe it contained contraband. In view of our agreement with the first of these arguments, we need not pass on the validity of the second argument.
The testimony shows that on the morning of January 10, 1966 an informer telephoned the Special Investigations Squad of the Philadelphia Police Department, spoke to Officer Span, and asked the officer to meet him at a nearby restaurant. Officer Span and his partner went to the restaurant at about 10 a.m. The informer told them that a man named John Friel was driving around with a load of narcotics in his car. He said Friel had approached several people including himself in an attempt to sell the drugs. He also said that he believed that if Friel was not arrested that day he would leave the city. The informer gave the officers a description of Friel's car, including the license number, and told them Friel would be in the vicinity of 16th and Market Streets, Philadelphia, some time that day as a friend of Friel owned a bar in that area. Officer Span testified the informer was well known both to him and Captain Ferguson, head of the Special Investigations Squad, that the informer had given information in the past which resulted in numerous arrests and that he "definitely did believe this man." The police got search warrants for the car and apartment of John Friel, and went immediately to the 16th and Market Street area to look for Friel. At about 7:30 p.m. that same day the officers observed Friel parking his car at the southwest corner of that intersection. The car fitted the description given by the informer and
[ 211 Pa. Super. Page 14]
the police identified the driver as Friel through the use of police photos of Friel they had with them. Officer Span and several other police officers got out of their unmarked car, and identified themselves to Friel who was standing beside his car. They searched the car. In the trunk of the car they found a cardboard box about one and a half feet square filled with narcotics. They then took Friel to his apartment, and to the police station where he was booked.
The lower court found that the search warrants were invalid since the affidavits were insufficient and that oral statements made to the magistrate could not be considered since the statements were not sworn to. The Commonwealth concedes that the warrants were invalid so we do not propose to discuss that issue. The lower court also found that the search could not be justified as a search incident to arrest since the search preceded the arrest.
It is clear that (1) police may arrest without a warrant where they have probable cause to believe the person arrested has committed a felony, (2) they may make a valid search without a warrant, incident to such arrest, and (3) the validity of such a search depends on the validity of the arrest and the extent of the search. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. ed. 653 (1950); Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). The lower court did not reach the question of probable cause for the arrest, since it felt that where the search precedes the arrest it cannot be justified as incident to the arrest. With this we cannot agree. Rather we think that where, as here, an automobile is searched and the search and arrest are nearly contemporaneous in point of time the ...