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COMMONWEALTH PENNSYLVANIA v. HARRY MIMMS (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY MIMMS, APPELLANT



COUNSEL

Renninger, Spear & Kupits, Burton Spear, Doylestown, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion in which O'Brien, J., joins. Jones, C. J., dissents.

Author: Pomeroy

[ 471 Pa. Page 548]

OPINION OF THE COURT

Two Philadelphia police officers stopped an automobile for the purpose of issuing a traffic summons. Upon approaching the automobile, Officer Kurtz ordered the driver, appellant Harry Mimms, to step out of the car. After Mimms had alighted from the vehicle, Officer Kurtz noticed a large bulge under Mimms' sports jacket. Fearful that the jacket might be covering a weapon, the police officer conducted a frisk of appellant's outer clothing. The frisk resulted in the discovery of a loaded .38 caliber revolver and five live rounds of ammunition. Based on this evidence appellant was indicted for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license. A motion to suppress was denied, and after a trial, at which the revolver was introduced into evidence, Mimms was convicted on both counts. The Superior Court affirmed the conviction,*fn1 and we granted allocatur. Because we conclude that appellant's revolver was seized in a manner which violated the Fourth Amendment to the Constitution of the United States, we reverse the Superior Court and remand the case for a new trial.*fn2

[ 471 Pa. Page 549]

The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. . . ." The broad mandate of the amendment serves to protect an individual's reasonable expectation of privacy from unjustifiable governmental intrusions. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). The protection thus afforded is not limited to persons in the shelter of their homes, but extends as well to the occupants of a moving vehicle. Commonwealth v. Murray, supra; Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973); Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). The question presented is whether the governmental intrusion which occurred in this case -- an order to leave the automobile and a limited search for weapons -- may be justified consistently with the standards of the Fourth Amendment.*fn3

The Commonwealth does not seek to justify Officer Kurtz's frisk for weapons on the ground that the traffic violation for which appellant's automobile was stopped*fn4 supplied probable cause to search the occupants of the vehicle. We have previously held that such a violation

[ 471 Pa. Page 550]

    does not, indeed, supply justification. See Commonwealth v. Dussell, supra. Nor does the Commonwealth contend that the search was made incident to a lawful full-custody arrest based upon probable cause. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Rather the Commonwealth asserts that the frisk was initiated only after Officer Kurtz had reasonable grounds to believe that appellant was armed and dangerous and was limited in scope to a pat-down of appellant's outer clothing. As a consequence, the Commonwealth urges, the stop and frisk was justified under the pronouncements of the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 829 (1968).*fn5

In Terry the Supreme Court gave recognition to the fact that the exigencies of face-to-face street confrontations may require police response even when probable cause to search or to seize property or persons is lacking. See also, Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612, 616 (1973). These exigencies may require a police officer to detain a person whom he suspects of criminal activity and to frisk the person whom he has detained when he has reasonable grounds to believe that the person is armed and dangerous. The Court in Terry acknowledged that action of this sort by the police may constitute governmental interference with

[ 471 Pa. Page 551]

    an individual's reasonable expectation of privacy and that such intrusions are often made without warrants or probable cause. The Court held, nonetheless, that such "carefully limited searches" are reasonable within the meaning of the Fourth Amendment in certain narrow circumstances:

"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search ...


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