Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 746, in case of Commonwealth of Pennsylvania v. Harry Mimms.
Burton Spear, and Renninger, Spear & Kupits, for appellant.
David Richman, James J. Wilson, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J. Jacobs and Spaeth, JJ., join in this dissenting opinion.
[ 232 Pa. Super. Page 487]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Harry Mimms, after conviction by a jury of violation of the Uniform Firearms Act and Carrying a Concealed Deadly Weapon.
[ 232 Pa. Super. Page 488]
Post-trial motions were denied and the appellant was sentenced to 1 1/2 to 3 years imprisonment.
The case was commenced by arrest and complaint on September 7, 1970, and a preliminary hearing was subsequently held on September 16, 1970. Since the maximum penalty which could be imposed on Carrying a Concealed Deadly Weapon and violation of the Uniform Firearms Act charges was four (4) years and the jurisdiction of the Municipal Court, at that time, was limited to cases punishable by no more than two (2) years, the case fell within the jurisdiction of the Court of Common Pleas. So accordingly, the case against the appellant was presented to the Grand Jury where indictments were returned. Pennsylvania Constitution, Article 5, Schedule 16 (r) (iii).
As amended by Act No. 45 of 1971 Sessions, affirmed July 14, 1971, Article 5 and its schedule were amended to broaden the jurisdiction of the Municipal Court to hear cases where the maximum sentence was five (5) years or less. 1969, October 17, P.L. 259, § 18, as amended 1971, July 14, P.L. 224, No. 45, § 1, 17 P.S. § 711.18.
On October 19, 1971, the President Judge of the Court of Common Pleas (a) gave the Municipal Court exclusive jurisdiction over a certain class of cases where the maximum possible sentence was five (5) years or less and (b) established by regulation procedure whereby a case could be certified from the Municipal Court for trial initially in Common Pleas. General Court Regulation No. 71-16. There is nothing in the July, 1971 Amendment or in the Court regulation that would permit any case to be heard in Municipal Court in which a Grand Jury indictment had been returned based on the original jurisdiction.
At trial, two police officers testified that on or about 9 A.M. on September 7, 1970, while on patrol, they observed the appellant driving west on Baltimore Avenue with an expired license plate. The officers stopped the
[ 232 Pa. Super. Page 489]
car to issue a traffic summons. The appellant was asked to step out of the automobile and produce his owner's card and operator's license. The officers noticed a large bulge on the appellant's hip under his sport jacket. The officer feared a concealed deadly weapon and frisked the appellant and took from his waistband a .38 caliber revolver with five live rounds. The other occupant of the automobile was also frisked and a .32 caliber revolver was removed from his person.
The appellant contends that the search of his person and the seizure of the revolver violated his constitutional rights.
The Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), at page 27 held:
"Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Citations omitted) And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate, and unparticularized suspicion or 'hunch', but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."
What the Court was actually saying was not "what a reasonably prudent man in the circumstances would be warranted in the belief that his safety . . . is in danger", but rather, what a reasonably prudent police officer would
[ 232 Pa. Super. Page 490]
be warranted to believe, otherwise police experience referred to in the above citation would have no bearing. Either test could be properly applied in the instant case.
As a general proposition the arrest of the driver of an automobile for an ordinary traffic offense does not, without more, permit a warrantless search of an automobile. Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970), but when, as in the instant case, a police officer in the performance of his duty stops a car to enforce a traffic violation for failure to have a current license tag, and when requesting the driver to step out of the car and exhibit his owner's card and driver's license, he becomes aware of a situation that may prove dangerous to his person, his right to frisk to remove the danger, arises.
The Commonwealth concedes that the only reason the car was stopped was the absence of a current license plate. However, the subsequent search and frisk of the person was not the subject of an ill-founded hunch or whimsical on the part of the officer as the appellant contends, nor did the search constitute harrassment in any sense. The narrow basis of the frisk or search was strictly and solely for the officers' own protection. Such searches are encouraged by the Supreme Court of the United States for the protection of law enforcement officers. Terry v. Ohio, supra; Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
Frightening statistics form the foundation for the authorization of self-protective searches by police officers:
"Figures reported by the Federal Bureau of Investigation indicate that 125 policemen were murdered in 1971, with all but five of them having been killed by gunshot wounds. Federal Bureau of Investigation Law Enforcement Bulletin, Feb., 1972, p. 33. According to one study, ...