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decided: March 16, 1973.


Appeal from order of Superior Court, Oct. T., 1970, No. 1178, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1956, Nos. 226, 227, and 228, in case of Commonwealth of Pennsylvania v. Earl Heard.


John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Mark Sendrow and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Manderino

[ 451 Pa. Page 127]

The appellant, Earl Heard, in 1956 was convicted by a jury of aggravated robbery and aggravated assault and battery (No. 226 and No. 227). Immediately thereafter, the appellant pleaded guilty to separate counts of aggravated robbery and aggravated assault and battery (No. 228 and No. 229). The charges to which the appellant pleaded guilty involved a separate and distinct episode from that for which the appellant was tried and found guilty by a jury. Appellant received concurrent terms of five to ten years on the two counts of aggravated robbery. Sentence was suspended on the two counts of aggravated assault and battery. No appeal was taken from these judgments.

In 1969, appellant sought PCHA relief claiming that he had been denied his appeal rights. The petition also raised other substantive issues. Appellant established that he was entitled to a direct appeal and the trial court therefore considered his PCHA petition as constituting post-trial motions, but denied relief on the substantive claims raised in the post-trial motions. We thus have before us appellant's direct appeal.

One of the issues raised by the appellant is a claim that evidence introduced during his jury trial (No. 226 and No. 227) was obtained unconstitutionally in that the evidence was the fruit of an illegal search of his automobile. If the appellant is correct there was a violation of his rights under Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). Such a violation would entitle the appellant to relief on direct appeal. Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62 (1972).

On the day of appellant's arrest, the police received information from the victim that her purse had been snatched and she saw the man who took it get into an automobile and drive away. The police were given a

[ 451 Pa. Page 128]

    description of the automobile and the license plate number. A check of the records indicated that the automobile was registered in the name of the appellant. The police then obtained an arrest warrant for the appellant. They did not obtain a search warrant for either the appellant's house or his automobile even though they had the opportunity to do so when the arrest warrant was secured.

The police then proceeded to the appellant's home, arrested appellant and took him to the station. After appellant's arrest and his transfer to the station, officers returned, without warrants, and conducted a search of appellant's home. No evidence was discovered. The officers then proceeded to search the appellant's automobile which was parked outside the home. No warrant was obtained for either of these searches. In the automobile the police found two watchbands and a pen which were among the items which the victim had reported missing. These items were important and crucial in the prosecution's case.

This Court has stated that ". . . it is very clear that only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a warrantless search." Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). Recently, in Linde, supra, a case strikingly similar to the present one, we said, concerning the search of an automobile which was independent of the defendant's arrest, that a dual inquiry must be made. First, whether there existed probable cause to search and second, whether exigent circumstances can be found to excuse the obtaining of a warrant.

In this case, the second requirement was clearly missing. At the time of the search there were no exigent circumstances justifying the failure to obtain a warrant. Indeed, the police had sufficient time to obtain

[ 451 Pa. Page 129]

    a search warrant because they did in fact obtain an arrest warrant. Their failure to obtain a search warrant ...

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