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decided: February 2, 1976.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nos. 75-00-1687 and 75-02-1077, in case of Commonwealth of Pennsylvania v. Thomas Wallington.


John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.

Hugh J. Colihan, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Van der Voort, J. Jacobs, Hoffman, and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 238 Pa. Super. Page 428]

Appeal is taken to this Court from an Order of April 30, 1975, wherein Judge Doty denied appellant Wellington's*fn1 petition for writ of certiorari by the Common Pleas Court to the Municipal Court of Philadelphia.*fn2 At a Municipal Court trial on March 18, 1975, Judge Jamison, sitting without a jury, found appellant guilty of theft by receiving stolen property,*fn3 having sustained appellant's demurrer to the charge of theft by unlawful taking, and found him not guilty of criminal conspiracy.

[ 238 Pa. Super. Page 429]

The record shows that appellant, on February 9, 1975, had been arrested and was being held at Philadelphia Police headquarters. While he and twelve others were detained in a cell, one inmate of that cell reported a theft of $500.00 from his person. All inmates were searched, and appellant was found to have $230.00, whereas when he arrived at headquarters some few hours previously, he possessed only $7.02. The other inmates were found to have various amounts. The indictments which were the subject of appellant's trial followed. The alleged crimes for which appellant first had been arrested are not a part of this appeal.

Appellant now asks for reversal of the Order denying him trial in Common Pleas Court and for a new trial. His argument is grounded upon a charge that his Fourth Amendment freedom from unlawful search and seizure was violated for lack of probable cause to arrest. He therefore urges upon us the conclusion that the products of this allegedly invalid search and seizure should have been suppressed, and so he argued at trial but his claim was denied. The question is preserved properly for consideration of the Constitutional question as appeal is taken from denial of writ of certiorari to a lower court. See Philadelphia v. Dortort, 205 Pa. Superior Ct. 211, 208 A.2d 797 (1965).

"The basic purpose of this [Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). This states the basic rule from which countless cases have gone forth as to what is an unlawful and arbitrary as opposed to a permissive invasion into one's privacy by government officials. We are now called upon to make such definition for a prisoner in custody. Because of the custodial aspect present in this problem of first impression, we first must consider

[ 238 Pa. Super. Page 430]

    the latitude available to the custodians in their maintenance of discipline and control in a penal institution. "Prison officials have wide discretion in matters of prison operation and discipline." Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967). In Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971), reference is made to the proposition that the running of prisons is the responsibility of the prison employees and state and local supervisory officers. Thus the discretion is broad insofar as prison employees may control and discipline inmates. But "prison officials do not have carte blanche to disregard first and fourteenth amendment rights, even in the name of prison discipline." Owens v. Brierley, 452 F.2d 640, 642 (3d Cir. 1971). See also Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Discussing a due process -- Fifth and Fourteenth Amendments -- question, the District Court has stated that "maintenance of control and security may not be used to justify the deprivation of basic human rights unless in pursuance of valid objectives and provided that the rudiments of due process are first observed." U. S. ex rel. Neal v. Wolfe, 346 F. Supp. 569, 574 (E. D. Pa. 1972).

While we are not faced herein with a due process question, we do recognize that custodial control and prison security cannot be excuses for overzealous conduct which deprives prisoners of basic freedoms. It is a difficult balance to maintain between protection of an individual's freedoms and the societal need for secure prisons. Because of the prison officials' discretionary powers in the maintenance of discipline, the Constitutional freedom of prisoners is curtailed to a degree. In considering to what degree they are curtailed we adopt the pronouncements of the federal courts on this subject, direct precedent in our Courts being unavailable. We therefore hold ...

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