Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Mercer County, June T., 1968, No. 2, in case of Commonwealth v. Donald LeRoy Brown.
James A. Stranahan, III, with him D. W. Patterson, for appellant.
Robert F. Banks, Assistant District Attorney, with him Joseph Nelson, First Assistant District Attorney, and Edward M. Bell, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy joins in this dissent.
Appellant, Donald Brown, was found guilty of second degree murder and is appealing the trial court's judgment of sentence entered after denial of his motions for a new trial and in arrest of judgment. As the basis for his appeal, appellant contends that the Commonwealth did not present a sufficiently strong case to merit consideration by the jury, that the evidence was not sufficient to support the verdict, and that the court below erred in refusing to suppress evidence concerning a gun, bullets and holster obtained from appellant and found to have been used in the commission of the crime.
Appellant's major contention is the latter one, and as to it the facts are as follows: On January 19, 1968, John Burke, Chief of Police of Grove City, met with State Police Officer Thomas Petrovich to discuss several pending cases; the Lumley case, the Dillaman case, and the Coulson case (the one with which this Court is now concerned). Burke told Petrovich that he was interested in locating the appellant to discuss with him various aspects of at least two of the three cases. Appellant was located the next day in his New Castle apartment, and the interrogation of Brown took place in the police car because Brown did not want his wife to see police in the apartment. Appellant received his Miranda warnings and then discussed with the officers certain aspects of the Lumley case. After about twenty minutes Mrs. Brown appeared, and the parties began discussing the difficult financial situation in which the Browns found themselves. Mrs. Brown had been attempting to sell their stereo to obtain money
for food and rent and had packed their bags in anticipation of being dispossessed that very day. The officers then took Mrs. Brown to the municipal building so that she could apply for assistance. After they returned, Petrovich asked appellant whether he owned any guns, and appellant said he did, producing a receipt for one he had recently purchased. Petrovich asked why he did not try to sell the gun rather than the stereo, and Brown replied that he did not think he could get much money for it. Petrovich stated he knew the man who had sold the gun, felt he could get some money for it and asked what Brown would accept. Brown said he felt $25 was the minimum and then gave possession of the gun, ammunition and holster to the officer. Petrovich did sell the gun back to the original owner (Aiken) for $30 and then asked Aiken if he could borrow it back for a few days in order to perform ballistic tests on it.
On cross-examination Petrovich stated he wanted to have ballistic tests performed because Coulson had been shot with a .32 calibre revolver and Brown had volunteered that his gun was of that type. At the time of the taking of the gun from appellant, neither officer was investigating the Coulson murder and neither felt he had enough evidence to secure a search warrant. At most they had a suspicion that Brown might have been involved. The ballistic tests showed that appellant's gun was the weapon from which the bullets that killed Coulson were fired.
Appellant contends that the manner in which the gun reached the hands of the police violated the Fourth Amendment's prohibition of unreasonable searches and seizures. He asserts that the case is one in which consent to an otherwise invalid search and seizure should itself be invalidated because procured through deceit and misrepresentation. Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709 (1963); Commonwealth Page 5} v. Anderson, 208 Pa. Superior Ct. 323, 222 A.2d 495 (1966); United States v. Reckis, 119 F. Supp. 687 (D. Mass. 1954). In Wright, four hours after having arrested the defendant, police officers returned to his apartment and told his wife that he had confessed and had sent them for the "stuff." This latter statement was false, but not knowing this the wife showed them where the money was located. This Court ordered the money evidence suppressed. Reckis involved a statement by agents of the Alcohol Tax Division to the owner of the land that they had been sent by the boss "to fix the still." On the basis of that representation, Reckis showed them where the still was located. The court held that under those circumstances the consent was not free and willing.
The Commonwealth does not agree that this is the proper framework in which to place this case. It asserts that the situation is governed by the decisions in Lewis v. United States, 385 U.S. 206 (1966); Hoffa v. United States, 385 U.S. 293 (1966); Lopez v. United States, 373 U.S. 427 (1963); and United States v. Haden, 397 F. 2d 460 (7th Cir. 1968). Basically those cases involve undercover work by government or police officials and stand for the proposition that the Fourth Amendment affords no protection to those who mistakenly place their confidence in such undercover agents. As applied to this case, appellee contends they hold that the presence of deceit and misrepresentation in dealings between the defendant and the police do not require the suppression of evidence surrendered "voluntarily" in the sense that if the situation were as the defendant believed it to be the defendant wanted (or at least did not object to having) the object or information in the possession of the "police." In effect, the Commonwealth is contending that there was no search and seizure at all because -- ". . . a search is a probing or exploration for something that is concealed
or hidden from the searcher: a seizure is a forcible or secretive dispossession of something against the will of the possessor or owner." U. S. v. Haden, supra at 465, and here appellant retrieved the property from its storage location himself and gave it to the policeman.
The problem for this Court is to determine the permissible extent of police power in light of these United States Supreme Court decisions. Lewis (involving sales of marijuana to a federal narcotics agent), Hoffa (involving the planting of a government informer in defendant's hotel room to overhear conversations), and Lopez (involving an attempted bribe of an Internal Revenue agent) clearly do not require the police to be completely open and truthful as to their identity and purpose when dealing with suspects. They recognize that undercover work is an essential weapon in the police arsenal. In this case the "undercover" work was not as to Petrovich's identity as a policeman but rather as to his motives in offering to sell the gun. It appears to us that there is no real difference between this deception and those found permissible in Lewis, Hoffa and Lopez. In all three of those cases the defendants were deceived as to the use that was going to be made of the things (in Lewis, narcotics; in Hoffa, words; in Lopez, money and words) transmitted to the government agents, and in reliance on that mistaken belief "voluntarily" made that transmittal. "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa, supra at 302. Here appellant did not explicitly reveal his wrongdoing, but he put in the hands of the police the instrumentality of the crime which was crucial evidence in establishing his guilt. There is no legal difference between the two so far as the Fourth Amendment's prohibition is concerned.
It is a possible basis of distinction between this case and Lewis and Lopez that the transmittal in those cases was the crime itself, while here the transfer was only of evidence. In the Hoffa case, however, the United States Supreme Court by implication stated that it is of no consequence whether the ...