Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1969, No. 561, in case of Commonwealth of Pennsylvania v. Robert Freeman.
J. Graham Sale, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Wright, P. J., Watkins and Cercone, JJ., dissent from the reversal.
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This case raises the issue of the validity of a search claimed to be incident to an arrest for a misdemeanor.*fn1 "Search incidental to arrest" is the usual expression appearing in opinions and the literature notwithstanding the inherent ambiguity of the phrase. Is a search incident to an arrest because it is contemporaneous with the arrest or because it has some other relationship to the arrest? Courts have failed to recognize the distinction*fn2 and to give due consideration to the facts
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and the underlying reason for allowing the search of the arrestee.*fn3
On the night of appellant's arrest three police officers were conducting a surveillance of a tavern reputed to be a center of narcotics activity. One of the arresting officers testified that appellant arrived by car and began to converse with "some very known narcotics users in the area." At this time the officers approached two boys waiting in the car, and one officer climbed into the back seat. The officer testified that when appellant returned twenty minutes later he was holding his left sweater pocket. As the appellant entered the car he noticed the stranger in the back seat and tried to get out again, at which time the police announced themselves. The officer testified that the appellant then became loud, and demanded to know what was going on and that some people began to gather around. He was thereupon arrested for disorderly conduct and a search of his left sweater pocket disclosed one glassine bag of narcotics. He was never formally charged with the disorderly conduct offense.
These facts cast doubt upon the good faith of the arresting officers in making the misdemeanor arrest. It is well settled that an arrest may not be used as a pretext to search for evidence of other crimes. United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420 (1932). When the arrest is merely a subterfuge for conducting a search, the search is illegal in spite of the validity of the arrest. Amador-Gonzales v. United States, 391 F. 2d 308 (5th Cir. 1968). It is unnecessary, however,
[ 222 Pa. Super. Page 182]
to decide this case upon the subjective test of pretext because it is clearer and probably more desirable to base the result upon the limited scope of search in conjunction with an arrest for a minor offense. A similar approach was recommended by Wisdom, J., in Amador-Gonzales, supra, at 315, as follows: "We will have fewer unconstitutional searches, if the emphasis is on the objective relationship between the nature of the offense and the nature (circumstances) of the search, rather than on the motivative cause of the arrest."
The American Law Institute*fn4 has very recently proposed the following exclusive permissible purposes of a search incident to an arrest: "(a) to effect the arrest with all practicable safety of the officer, the arrested individual, and others; (b) to furnish appropriate custodial care, if the arrested individual is jailed; or (c) to obtain evidence of the commission of the offense for which the individual is arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in connection with the offense." It has also proposed that a search incident to arrest for minor offenses which involve no unlawful possession or violent, or intentionally or recklessly dangerous conduct is not warranted except for a search for dangerous weapons under appropriate circumstances.*fn5 These recommendations are in accord with traditional justifications for a search incident to arrest. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881 (1964); Chimel v. California, 395 U.S. 752, 89 ...