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UNITED STATES EX REL. RICHARDSON v. RUNDLE

April 5, 1971

UNITED STATES of America ex rel. Lorenzo RICHARDSON
v.
Alfred T. RUNDLE, Superintendent


Luongo, District Judge.


The opinion of the court was delivered by: LUONGO

 Counsel was appointed to represent Richardson in these proceedings and a hearing was held in this court on February 12, 1971. Relator rested on the state record. The Commonwealth offered the testimony of Captain John Penko, of the Philadelphia Police Department, who was a patrolman at the time of the events in question and a partner of the patrolman (Ralph Meehan), who actually made the arrest and seized the items of evidence under attack here.

 From the state record and the testimony in this court, these facts appear:

 At approximately 9:45 p.m. on February 18, 1963, Officers John Penko and Ralph Meehan were cruising in a patrol wagon in an easterly direction on Tioga Street in Philadelphia. The officers were enroute to check out a drug store at 15th and Tioga Streets at closing time (10 p.m.). About a half block from their destination, the officers observed four Negro male teenagers running from the steps of the drug store in the direction of the police wagon. All four youths were wearing iridescent raincoats and pork pie hats. The boys ran past the police vehicle, turned south onto Sydenham Street at the next corner and then turned into an alley leading toward 15th Street. The police officers, having been informed by their superiors of a recent outbreak of robberies of drug stores by teenage gangs in this high crime area, became suspicious and gave chase, but by the time they reached the alley, the boys had disappeared. The officers proceeded to the next block (Ontario Street) where they observed a group of Negro youths on the corner of 15th and Ontario Streets wearing the same type clothing as those observed running from the drug store. At the approach of the patrol vehicle, three of the youths ran south on 15th Street. They were pursued by Officer Penko in the patrol wagon. Meanwhile, Officer Meehan, who had alighted from the vehicle, seized the fourth, Richardson, who had started to walk west on Ontario Street. Meehan escorted Richardson up 15th Street toward the patrol wagon. Richardson offered no resistance but he did verbally protest his innocence. When they reached the patrol wagon, Meehan searched Richardson and took from his pants pockets a.22 caliber bullet and a black leather holster. A moment later, a woman who had witnessed the chase, walked up and handed to Officer Meehan a.25 caliber pistol which she stated one of the youths had dropped at the corner of 15th and Ontario.

 The pistol fit the holster. *fn2" Richardson was placed in the patrol wagon and was taken back to the drug store. There the proprietor informed the police that he had just been robbed and assaulted by two Negro male teenagers. The officers stated that they thought they had one of them in the patrol wagon. The proprietor walked out to the vehicle, looked in and identified relator as one of the two youths *fn3" who had committed the crime. Until the time the police officers spoke with the proprietor, they were unaware that a crime had been committed.

 The holster and the bullet were admitted in evidence at relator's trial. From an examination of the trial transcript it appears that the admission of these items in evidence contributed to the finding of guilt.

 There has been no attempt in this court to justify the search of relator's person as incidental to a lawful arrest. *fn4" This is understandable since the police officers were not aware that a crime had been committed when Richardson was stopped and searched, and had no probable cause for arrest. The Commonwealth does argue, however, that under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), what Officer Meehan did was permissible as part of a limited detention and frisk for investigative purposes. The only issue before me, therefore, is whether the police conduct in the instant case falls within the Terry guidelines.

 In Terry, the Supreme Court stated, at p. 30, 88 S. Ct. at p. 1884, that:

 
"[Where] a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Emphasis supplied)

 To justify a frisk, at the very least the officer must be able "to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917 (1968).

 In the instant case, I am satisfied that the police officers, based upon their knowledge and experience, had reason to conclude that criminal activity might be afoot when they observed the four youths running from the steps of the drug store around closing time. Further investigation was proper under the circumstances. Beyond that, the burden was on the Commonwealth to establish that the police had reason to believe that Richardson, assuming he was one of those youths, was armed and dangerous. The record is barren of any facts from which Officer Meehan *fn5" could reasonably have inferred that his safety or the safety of others was in danger. He had no idea that a crime, violent or otherwise, had been committed. He made no inquiries of Richardson, and so gave him no opportunity to explain his conduct. Richardson's docility and passivity when he was seized certainly gave Meehan no reason for fear. Meehan's testimony in the state court (he was not produced to testify in these proceedings) did not indicate that he feared for his own safety or for that of others. The fundamental ingredients of the stop and frisk, as spelled out in Terry, are missing.

 The instant case is similar to Commonwealth v. Berrios, 437 Pa. 338, 263 A. 2d 342 (1970). In Berrios, the police had been informed that a shooting had occurred, and that three men, two Negroes and a Puerto Rican, had committed the shooting. A general description of the clothing worn by the men was also transmitted over police radio. Approximately three blocks from the scene of the crime, and only about twenty minutes later, two police officers observed a Negro and a Puerto Rican walking down the street, wearing clothing matching the description given over the radio. The officers stopped and frisked the men, and found a revolver on Berrios. He was eventually convicted of carrying a concealed weapon. In reversing the conviction, the Supreme Court of Pennsylvania pointed out that the police had no evidence to connect the two men on the street to the violent crime which they knew had been committed, and that they had no other evidence to indicate that the men were armed and dangerous. The Court concluded, at p. 342, 263 A. 2d at p. 344:

 
"If the policemen were constitutionally justified in searching Berrios under these circumstances, then every Puerto Rican wearing light clothing and walking with a Negro in this area could ...

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