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decided: March 15, 1968.


Appeal from order of Superior Court, Oct. T., 1965, Nos. 233 and 234, affirming judgments of Court of Oyer and Terminer of Philadelphia County, July T., 1964, Nos. 279 and 282, in case of Commonwealth of Pennsylvania v. Melvin Harris.


Melvin Dildine, Assistant Defender, with him Herman I. Pollock, Defender, for appellant.

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, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents on the basis of Harris v. United States, 390 U.s. 234, Author: Eagen

[ 429 Pa. Page 216]

Melvin Harris, appellant, was convicted by a jury in Philadelphia County of the crimes of burglary, larceny, receiving stolen goods and possession of burglary tools. Following dismissal of a motion for a new trial and imposition of sentence, an appeal was filed in the Superior Court which subsequently affirmed the judgments,

[ 429 Pa. Page 217209]

Pa. Superior Ct. 27, 223 A.2d 881 (1966). Judge Hoffman dissented. We granted allocatur.

The convictions rested in part upon the introduction in evidence, over objection, of a set of burglary tools and a brief case seized without a warrant from an automobile in Harris' possession at the time of his arrest. The lawfulness of the arrest was not questioned and the above evidence was accepted at trial as the product of a lawful search incidental to and part of the arrest. The question for decision is whether the search was unreasonable under the Fourth Amendment to the United States Constitution, rendering constitutionally impermissible the use of evidence seized therein.

The pertinent facts are these.

At about 7:10 p.m., on June 16, 1964, two city police detectives, having secured information that Harris was seen in possession of ladies' wigs stolen in a recent burglary, went without a body or search warrant to the residence of a Mrs. Wilson, a friend of Harris, to arrest him. They were admitted to the dwelling without incident by a member of the household. Harris was not there when the officers arrived, but drove up in an automobile about ten minutes later and parked the automobile on the street "almost directly" in front of the Wilson residence. As he entered the house, he was immediately placed under arrest and handcuffed. An officer then asked Harris, "May I search your car?" Harris replied, "yes" and gave the officer the keys,*fn1 but explained that the automobile did not belong to him. The officer then proceeded to the automobile, searched it in the presence of Harris, and found the burglary tools and the brief case in the trunk.

[ 429 Pa. Page 218]

One of the exceptions to the constitutional rule that a search warrant is required before a search is that the police may properly search a person who is lawfully arrested, if the search is incidental to and part of the arrest: Preston v. United States, 376 U.S. 364, 84 S. Ct. 881 (1964). This right to search and seize without a warrant extends to things under the accused's immediate control such as a house or an automobile, Preston v. United States, supra, and Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925). Such a search without a warrant is justified "by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime -- things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control." Preston v. United States, supra, at 367, 84 S. Ct. at 883.

But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest. Ibid., Agnello v. United States, 269 U.S. 20, 31, 46 S. Ct. 4, 5 (1925); Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889, 891 (1964). See also, Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966). And whether the search is of a house or of a thing under the accused's immediate control, it must be "reasonable" as to the area searched. However, what may be unreasonable in the search of a house may be reasonable in the case of an automobile, Carroll v. United States, supra. In other words, the questions involving the validity of searches of automobiles and similar ...

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