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COMMONWEALTH v. NORWOOD (05/23/74)

decided: May 23, 1974.

COMMONWEALTH
v.
NORWOOD, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 1528, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 1545, in case of Commonwealth of Pennsylvania v. Wayne Norwood.

COUNSEL

John W. Packel, Assistant Defender, with him Anne F. Johnson, Andrea Levin, and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Louis A. Perez, Jr., Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Roberts joins in this dissenting opinion.

Author: Nix

[ 456 Pa. Page 331]

Appellant Wayne Norwood was convicted of possession of narcotic drugs and sentenced to one year probation. The Superior Court affirmed, per curiam, Commonwealth v. Norwood, 221 Pa. Superior Ct. 714, 288 A.2d 826 (1972), and we granted allocatur.

The sole issue presented by this appeal is whether the lower court erred in denying appellant's pretrial motion to suppress evidence, and in permitting such

[ 456 Pa. Page 332]

    evidence to be introduced at trial. Appellant claims that the evidence was obtained as the result of a search incident to an unconstitutional arrest, thereby violating his Fourth and Fourteenth Amendment rights.

The evidence at the suppression hearing consisted solely of testimony by Officer Carl Jackson, the arresting officer. Officer Jackson stated that, at about 1:30 p.m. on December 10, 1970, he was informed that one Bo Baines would be selling drugs in the 200 block of S. 60th Street, Philadelphia. The informant had given him information on "about three" prior occasions leading to two arrests. Officer Jackson and his partner went to the location in question and observed "five to six Negro males, known to me as users of drugs" from a distance of twenty-five feet. At about 2:00 p.m., they saw Baines walking north on 60th Street toward the group. One of them, the appellant, approached Baines and passed what appeared to be currency to him. Baines moved his hand, which had been cupped, toward the appellant, and the appellant thrust his hand into his pocket.

From these facts, Officer Jackson concluded that a drug transaction had taken place. He approached the appellant, identified himself, and asked the appellant to remove whatever he had put in his pocket. Appellant handed the officer one glazed packet of a white powder later identified as heroin.

In reviewing a warrantless arrest, we must determine whether the facts and circumstances within the knowledge of the officer at the time, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Garvin, 448 Pa. 258, 262, 293 A.2d 33 (1972); Commonwealth v. Bishop, 425 Pa. 175, 181, 228 A.2d 661, 664-65 (1967). "The standards applicable to . . . the officer's probable-cause assessment

[ 456 Pa. Page 333]

    at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment." Whiteley v. Warden, 401 U.S. 560, 566 (1971). See also, Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Garvin, supra.

Appellant primarily challenges the sufficiency of the informant's tip to the effect that Baines would be selling drugs. We need not decide whether this tip, standing alone, would meet the requirements of Spinelli v. United States, 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964), because the arresting officer in this case gained ...


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