Appeal from order of Superior Court, No. 1086, Oct. T., 1968, affirming judgment of Court of Quarter Sessions of Philadelphia County, April T., 1968, No. 60, in case of Commonwealth v. Ishmael Berrios.
David Rudovsky, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
Following trial before a judge without a jury in Philadelphia County, Ishmael Berrios was convicted of carrying a concealed deadly weapon in violation of the
Uniform Firearms Act.*fn1 After post-trial motions were denied, a prison sentence was imposed. On appeal, the Superior Court affirmed the judgment without opinion. We granted allocatur and now reverse.
Berrios and a companion, while walking on a street in Philadelphia, were stopped by two policemen without a warrant and "frisked." A .38 revolver was found concealed in Berrios' belt, and testimony of the policemen concerning Berrios' possession of the gun and the gun itself were introduced as evidence against him at trial, over objection. We conclude that the frisking of Berrios' clothing and the seizure of the gun violated his rights under the Fourth Amendment, and that evidentiary use thereof, was therefore constitutionally impermissible.
A policeman may legally stop a person and question him.*fn2 But he may not without a warrant restrain that person from walking away and "search" his clothing,*fn3 unless he has "probable cause" to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped and searched that the policeman may reasonably conclude that criminal activity may be afoot, and that the person with whom he is dealing may be armed and dangerous. Terry v. Ohio, infra n. 3; Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).
The Commonwealth does not contend that the policemen involved had probable cause to arrest Berrios, but
urges that the stopping and searching was justified under the second alternative enunciated ...