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COMMONWEALTH v. BROWN (06/21/74)

decided: June 21, 1974.

COMMONWEALTH, APPELLANT,
v.
BROWN



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1972, No. 8134A, in case of Commonwealth of Pennsylvania v. Earl Brown.

COUNSEL

Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.

John H. Corbett, Jr., Trial Defender, with him John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Van der Voort, J., concurs in the result.

Author: Jacobs

[ 228 Pa. Super. Page 159]

This is an appeal by the Commonwealth from the suppression of evidence by the lower court. We reverse.

[ 228 Pa. Super. Page 160]

At the suppression hearing, the arresting officer, the only witness called, related to the court the following facts: At approximately 9:00 p.m., on June 28, 1972, the witness and three other detectives were conducting a narcotics surveillance of a certain area of Pittsburgh. At that time, they received information from an informant, who had proved reliable in the past, that the defendant, Earl Brown, had just left the Vets Club and that the informant had observed defendant selling red capsules which he stated were narcotics. Upon receipt of this information, the police proceeded to the Vets Club where they observed the defendant and four other men enter a Cadillac. The police were unable to apprehend the defendant at that time, but followed the Cadillac. Soon thereafter, they stopped the Cadillac, and after the witness identified himself, he observed the defendant open the door on the passenger's side and drop to the ground two silverfoil packets containing white powder. These items were retrieved by the witness who then immediately arrested the defendant and informed him of his constitutional rights. A body search of the defendant uncovered assorted narcotics paraphernalia and four capsules of white powder. Appellant was charged with possession with intent to deliver heroin, which is denoted a felony by The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P. L. 233, No. 64, §§ 1 et seq., 35 P.S. §§ 780-101 et seq. (Supp. 1974-75).

The basic issue is whether the police, under the circumstances presented by this case, were justified in stopping the Cadillac and arresting the defendant who was riding as a passenger therein. If such a stop was illegal, the evidence obtained, being the fruit thereof, must be suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Smith, 225 Pa. Superior Ct. 509, 311 A.2d 716 (1973).

[ 228 Pa. Super. Page 161]

The arrest, here, was without a warrant and to be lawful must be based on probable cause. Commonwealth v. Hughes, 219 Pa. Superior Ct. 181, 280 A.2d 556 (1971); Commonwealth v. Vassiljev, 218 Pa. Superior Ct. 215, 275 A.2d 852 (1971). The analysis of probable cause for an arrest without a warrant "is basically similar to that demanded of a magistrate when he considers whether a search warrant should issue." Spinelli v. United States, 393 U.S. 410, 417 n.5 (1969). Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Greco, 227 Pa. Superior Ct. 19, 323 A.2d 132 (1974). Hearsay information alone may be sufficient to establish probable cause. Betrand Appeal, supra. "However, when, as here, probable cause for a warrantless arrest is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional information before probable cause is established. First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the [crime]. Second, in order to reduce the possibility that a tip meeting the first standard is merely a well-constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable." Id. at 385-86, 303 A.2d at 488 (footnote omitted).

In the instant case, the information received by the arresting officer warranted him in believing that the defendant was in the possession of and selling illegal drugs. However, we must examine the source of this ...


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