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COMMONWEALTH v. DEVLIN (03/24/72)

decided: March 24, 1972.

COMMONWEALTH
v.
DEVLIN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1971, No. 337, in case of Commonwealth of Pennsylvania v. William Devlin.

COUNSEL

John W. Packel, Assistant Defender, with him Anne F. Johnson, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James J. Wilson, Assistant District Attorney, with him Milton M. Stein, 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 Cercone, J.

Author: Cercone

[ 221 Pa. Super. Page 176]

Defendant was convicted, after trial without jury, of the crime of possession of narcotic drugs. He has appealed to this court contending that the refusal of his pretrial motion to suppress the physical evidence of the drugs was error as that evidence was either the fruit of an illegal arrest made without probable cause or the direct product of a warrantless search made without probable cause.

We do not agree. Admittedly, where defendant's arrest is lawful, being based on probable cause, the search incident to that arrest is likewise lawful: Commonwealth v. Friel, 211 Pa. Superior Ct. 11, 14.*fn1

The record in this case supports a finding that the officers acted with probable cause. Officer John Boucher testified that on February 18, 1971, at approximately 5:25 P.M., an informant advised him there was a man in the Pink Squirrel Bar at 1624 Ridge Avenue selling narcotics and that the man had refused to sell him drugs on credit. The informant gave a detailed description of the man as to color, height, and clothes. Officer Boucher and two other police officers

[ 221 Pa. Super. Page 177]

    went to the Pink Squirrel Bar and there observed the defendant, who fitted informant's description in every detail, sitting at the bar. Officer Boucher testified that as they approached, defendant reached into his left-hand pocket, so they grabbed his arm and found three bags of a mixture later identified as heroin and quinine hydrochloride, the possession of which constituted the basis of his conviction.*fn2

Defendant, in contesting the validity of the arrest and the subsequent search, does not raise any issue as to the informant's reliability but questions the sufficiency of the information supplied by him to constitute probable cause. Defendant would interpret the informant's statement that defendant would not sell to him on credit as a refusal by defendant to sell altogether, and thus argues that this refusal reported by informant was more consistent with innocence than with guilt. We cannot agree. The informant's statements, taken in their proper context, signified that the defendant was willing to sell but not willing to sell on credit. Officer Boucher, therefore, properly interpreted the informant's statements to mean defendant was selling drugs. It must be kept in mind that in determining the sufficiency of the statements to warrant a finding of probable cause for the arrest, we do not apply strict evidentiary rules requisite to a finding of defendant's guilt. As so ably stated by Judge Learned Hand, in speaking for the court in U. S. v. Heitner, 149 F. 2d 105, 106: "It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's

[ 221 Pa. Super. Page 178]

    guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot ...


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