Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1970, No. 439, in case of Commonwealth of Pennsylvania v. Isidor Santiago.
David Weinstein, with him Weinstein & Bobrin, for appellant.
Milton M. Stein, Assistant District Attorney, with him J. Bruce McKissock, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Wright, P.j., and Watkins and Montgomery, JJ., dissent.
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At 6:20 on the evening of June 10, 1970, appellant was walking on Green Street, Philadelphia, carrying
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two small packets: one silver colored and the other dull in color. Officer Kane of the Philadelphia Police Department, who was patrolling the area, noticed appellant. Although not a member of the narcotics squad, the officer knew appellant and knew that he had been arrested several times on narcotics charges even though he had never been convicted of those charges.
Officer Kane called appellant's name and told him to come over to the patrol car which was parked along the curb. Instead of obeying his command, appellant turned and ran. Kane chased him and finally caught him as he was attempting to climb a fence. The officer pulled him off the fence and as he did so a silver-foil packet fell to the ground. A second packet was found in appellant's hand.*fn1 Appellant was arrested and charged with felonious possession of narcotic drugs. Upon analysis, heroin was found in small glazed bags contained in the packets.
Prior to trial, appellant filed a motion to suppress the evidence which had been seized. The motion was denied and appellant was later found guilty of possession of narcotic drugs.*fn2 Post-trial motions were also denied and he was sentenced. His sole contention in this appeal is that there was no probable cause for his arrest and thus the search made pursuant to this arrest was unlawful. The Commonwealth concedes that the police actions constituted a search, but contends that there was
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probable cause for the arrest and that, therefore, the search was lawful.
In order for this warrantless search to be lawful it must have been made pursuant to a lawful arrest. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). A warrantless arrest for a felony, as occurred in this case, must be based on probable cause: "This means that 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in believing that the suspect had committed or is ...