The opinion of the court was delivered by: KNOX
The defendant in this case stands indicted for possessing a sawed-off rifle which had not been registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(b) and also for possessing such a firearm not bearing a serial number in violation of 26 U.S.C. § 5861(i). The gun was taken from him by the police at the time of his arrest in the early morning of March 3, 1976, for public drunkenness in violation of 18 CPSA 5505.
The Section in question a part of the Pennsylvania Penal Code reads as follows:
"A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity."
By a previous order dated August 26, 1976, the court has held this section of the Pennsylvania Penal Code constitutional against an attack based upon vagueness and overbreadth.
The evidence was taken on the motion to suppress the evidence seized from the defendant which hearing was held August 25, 1976. It appeared from the testimony of Officer Yochim of the Erie City Police that on March 3, 1976, he was asked to come to the police office in the municipal building in Erie because a man was there having problems and it was reported to him that he had had trouble at the Perry Square Cafe. Officer Yochim together with Officer Smith then took him to the cafe in question, however the owner said that there had been no trouble there, that there had been a scuffle sometime during the evening but there was nothing to be concerned about.
The officer testified that at this time the man was seriously intoxicated and could barely move. He said he was bouncing off the walls of the corridor and weaving back and forth smelling of alcohol and that in the officer's opinion he was heavily intoxicated. The officer stated that he was incoherent, he was loud and could not be understood. He was thereupon placed under arrest for public intoxication in violation of the section of the Pennsylvania Penal Code above quoted. When taken back to the police station, he was searched during the course of booking and the cut down rifle in question was found in the inside left inner pocket of his jacket. He said that the defendant had never been abusive to him personally and that he was placed in custody because he obviously was in such condition that he "couldn't make it".
We have previously noted that the section of the Pennsylvania Penal Code is carefully drawn so as not to punish all forms of drunkenness but only drunkenness in a public place to such a degree as to endanger the person himself or other persons or property or annoy persons in the vicinity, and the court concludes that the officer was within his rights to place this person in custody under this statute because he was in such condition as to be a danger to himself. If the officer had turned him loose on the streets under these circumstances and he had been run over by an automobile or otherwise injured himself, the officer and the city might be liable to suit for neglect of duty.
Difficulty has arisen as the result of Rule 51 of the Pennsylvania Rules of Criminal Procedure which in connection with summary offenses, as public drunkenness is classified, provides for institution of proceedings in such cases generally by the issuance of a citation and summons. However, Rule 51(A)(3)(c) effective September 1, 1975, provides:
"(c) the defendant may be arrested without a warrant by a police officer for a summary offense but only when, (i) such arrest is necessary in the judgment of the officer, and (ii) the officer is in uniform or displays a badge or other sign of authority, and (iii) such arrest is authorized by law. Thereafter the case shall proceed as provided in Rule 62."
The officer testified that the arrest was necessary in his judgment because defendant was in such condition that he "couldn't make it". It is stipulated that the officers were in uniform at the time of the arrest. The only question at issue is whether the arrest was authorized by law, this being a summary offense.
It will be noted that we are not dealing with an arrest for a felony or for a misdemeanor as to which other rules apply. The court concludes, however, that a police officer of the City of Erie had the right to make an arrest on view for violation of this Section of the Pennsylvania Penal Code when in his judgment the defendant was in such condition that he might endanger ...