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COMMONWEALTH v. PHILLIPS (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
PHILLIPS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Chester County, May T., 1971, No. 622, in case of Commonwealth of Pennsylvania v. George Olney Phillips.

COUNSEL

John R. Merrick, Public Defender, for appellant.

F. Ned Hand, Assistant District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., dissent.

Author: Hoffman

[ 225 Pa. Super. Page 127]

This is an appeal from a judgment of sentence for possession of marijuana. Appellant argues that evidence used in his trial was illegally obtained.

The facts of this case are as follows: Appellant was stopped by a police officer for passing a stop sign. While requesting appellant's driver license and vehicle

[ 225 Pa. Super. Page 128]

    registration, the police officer noticed a long smoking pipe jutting out from under the passenger's seat. The pipe was approximately twelve inches in length, with a wooden barrel and a small ornate brass bowl. After asking appellant if he might examine the pipe, the officer concluded from its appearance that the pipe was a "hash" pipe, one used for the purpose of smoking hashish. Thereupon, appellant was advised of his constitutional rights and placed under arrest.

A second officer then arrived at the scene to assist in the investigation. Requiring a light for his cigarette, the second officer reached into appellant's automobile and picked up a matchbox that had been lying on the floor near the accelerator pedal. Upon opening the matchbox, the officer found that it contained hashish.

Appellant's motion to suppress the pipe and the hashish as fruits of an unreasonable search was denied. After the jury returned a verdict of guilty, the appellant's motion for a new trial was denied and he received a sentence of thirty days probation and a fine of one hundred dollars.

The significant question in this case is whether the mere observation of an ornate pipe in the appellant's car constituted probable cause for an arrest and search. We hold that it does not.

Possession of pipes similar to the one in question is not illegal per se. The officer's linking of the pipe with illicit activity could not have been more than a suspicion, since such pipes can be used to smoke tobacco or hashish or just for ornamentation. It is well established that "even 'strong reason to suspect' will not adequately substitute for probable ...


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