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COMMONWEALTH v. MACEK (04/15/71)

decided: April 15, 1971.

COMMONWEALTH
v.
MACEK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1969, No. 129, in case of Commonwealth of Pennsylvania v. Goldie Mae Macek.

COUNSEL

Albert Cohen, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Mark F. Geary, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Concurring Opinion by Hoffman, J. Spaulding, J., joins in this concurring opinion.

Author: Cercone

[ 218 Pa. Super. Page 126]

Goldie Mae Macek*fn1 was indicted on two counts: the first count charging possession of marijuana in violation of The Drug, Device and Cosmetic Act (Act of September 26, 1961, P. L. 1664, § 1, 35 P.S. § 780-1 et seq.) and the second count charging prostitution and assignation. After trial, the jury found her guilty of possession of marijuana but not guilty of prostitution and assignation.

The prostitution charge was based on the testimony of Police Officer Hanlon that defendant had offered him sexual relations for the price of $10.00 (ten dollars) after which solicitation he arrested her. After her arrest on that charge, a search was made of the purse she was carrying. That search revealed not only articles reasonably related to the charge of prostitution, but also one marijuana cigarette and two marijuana butts, the cigarette and the butts containing one tenth of a gram of marijuana. The said cigarette and butts were introduced as evidence against defendant in

[ 218 Pa. Super. Page 127]

    support of the charge of unlawful possession of marijuana.

No objection to the mode of securing the marijuana was made either by a pretrial motion to suppress the evidence or by objection to its introduction at the time of trial. However, after the guilty verdict, defendant made a motion in arrest of judgment claiming that since the jury did not find her guilty of prostitution, as claimed by the arresting police officer, a fortiori there was no probable cause for her arrest on that charge and consequently the search of her purse was not incidental to a lawful arrest. The lower court refused the motion and this appeal has been taken from that refusal.

We concede defendant's premise that if her arrest had been without probable cause, the search following that arrest would be unlawful. As stated in Charles v. United States, 278 F. 2d 386, 388 (9th Cir. 1960): "Searches of both the person arrested and the place where the arrest is made derive their legality in the absence of a search warrant from the existence of a lawful arrest. Without probable cause to arrest, subsequent searches either of the person or property violate the Fourth Amendment. That a search is incident to a valid arrest saves it from proscription." However, we cannot agree with defendant's contention that because the jury did not find her guilty of the charge on which she was arrested, that that arrest was without probable cause. A jury, in order to convict, has to find the defendant guilty beyond a reasonable doubt; on the other hand, an officer, in order to arrest, need only determine that there is probable cause for the arrest. The fact that the officer in this case made his arrest on the basis of his personal observation of and conversation with the defendant does not alter this rule. Though the matter was presented to the jury on the issue of

[ 218 Pa. Super. Page 128]

    credibility -- that is, whether the defendant or the police officer was telling the truth -- we cannot say as a matter of conclusive fact that the jury by its verdict established that the defendant had been arrested without probable cause. The only fact established by the verdict is that for some reason the jury had a reasonable ...


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