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COMMONWEALTH v. ALTIZER (09/12/68)

decided: September 12, 1968.

COMMONWEALTH, APPELLANT,
v.
ALTIZER



Appeal from order of Court of Quarter Sessions of the Peace of Philadelphia County, Aug. T., 1967, No. 228, in case of Commonwealth of Pennsylvania v. Noah Altizer.

COUNSEL

Gordon Gelfond, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Louis M. Natali, Jr., Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 213 Pa. Super. Page 202]

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Philadelphia County granting appellee's motion for new trial based on the determination that evidence introduced by the Commonwealth was the product of an unlawful search and seizure.

[ 213 Pa. Super. Page 203]

On July 13, 1967, Police Officer John Kennedy was approached while on duty by a man who stated that he had been in a nearby bar called Track 7, located at 1226 Filbert Street, and that a man sitting next to him had asked him if he wished to buy some postal money orders for "ten dollars apiece." When asked if he believed the informant, Officer Kennedy said that he did.*fn1 Although he gave a complete description of the man, the informant refused to give his own name. On the basis of that information, the officer went to the bar where he observed appellee, Noah Altizer, who fitted exactly the description by the unnamed informant. He also observed the top half of a packet protruding from appellee's left rear pocket which he correctly assumed, from its shape, to be money orders. "There was no time to get a warrant or anything and I felt that maybe a felony had been committed. I approached him and took them out of his rear pocket."*fn2 Altizer was then handcuffed and taken to the Central Detective Division where it was established that the money orders had been issued from the Bryant, Alabama post office and were among approximately two thousand stolen during a February 20, 1967 burglary of that office.

At a pretrial proceeding, the Honorable Charles L. Guerin dismissed appellee's motion to suppress the evidence resulting from the search of appellee. Trial was held before the Honorable Robert N. C. Nix, Jr., sitting without a jury, and appellee was adjudged guilty of receiving stolen goods. After argument on post-trial motions, a new trial was granted by Judge Nix, who stated: "There was not sufficient probable cause to justify the search and . . . the evidence should have been suppressed." From this determination the Commonwealth

[ 213 Pa. Super. Page 204]

    now appeals, the sole issue being the validity of the search and the subsequent arrest.*fn3

In response to appellee's claim that the search was invalid the Commonwealth initially contends that probable cause is unnecessary in the case of a seizure by a police officer of contraband which is in plain view. This is a correct statement of the law but apparently is out of context when offered for application in the instant case.

In Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427 (1964), rev'd on other grounds sub nom., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), contraband was stated to be things and objects outlawed and subject to forfeiture and destruction upon seizure. The term has been applied to such articles as cannot be owned or possessed legally, or are such as are capable of use only in the commission of a crime. For example, contraband has been held to include, in particular connections, an illicit still,*fn4 membership lists of an organization seeking to overthrow the government of the United States,*fn5 moonshine liquor,*fn6 ...


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