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decided: February 28, 1977.



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]


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 under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." 392 U.S. at 30-31, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

The Court made it clear that "in justifying the particular intrusions the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant the intrusion." Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Accord Commonwealth v. Murray, supra; Commonwealth v. Boyer, supra; Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973);*fn6 Commonwealth v. Dussell, supra; Commonwealth v. Berrios, 437 Pa. 338,

[ 471 Pa. Page 552263]

A.2d 342 (1970). The question before us, then, is whether Officer Kurtz has been able to point to such "specific and articulable facts."

The precise point of our inquiry must be whether Officer Kurtz's action was justified at its inception. Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d 905. Certainly the fact that a weapon was discovered as a result of the search cannot serve as its justification. See, e. g., Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934 (1968). Even were we to assume that the observable bulge under Mimms' coat justified a limited search for weapons, our inquiry would still not be at an end. The initiation of Officer Kurtz's intrusive action was the order to appellant to get out of his car. If that order cannot be constitutionally justified, then the fruits of the resulting frisk were likewise unconstitutionally obtained.

In Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) this Court held that the police had no right to order a passenger out of an automobile after the police had stopped it for going through a red light; although the infraction occurred in a "high crime" area, the police could point to no objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety. Similarly in the instant case, Officer Kurtz could point to no such observable facts. He testified that he did not see the bulge under appellant's coat until after appellant had stepped out of the car, and that there was nothing unusual or suspicious about the behavior of Mimms or his passenger which led Kurtz to issue his order. Rather, the officer indicated that it is his practice to order all drivers out of their vehicles whenever he makes a stop for a traffic violation and that the order was issued to appellant solely because of this practice.

[ 471 Pa. Page 553]

We are not unsympathetic to the plight of the police officer who must approach potentially dangerous people in the daily enforcement of our traffic laws. The Fourth Amendment, however, mandates that invasions of the personal liberties of the occupants of motor vehicles be justified by a reasonable appraisal of the objective facts of the given situation. "Anything less would invite intrusion upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches." Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. In the case at bar, the stop and frisk in question was not initiated on the basis of an objective appraisal of the given circumstance but rather on a policy of ordering all drivers stopped for traffic violations out of their vehicles. Such an indiscriminate procedure violates the Fourth Amendment and the fruits obtained as a result thereof may not properly be used at trial against the accused. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The order of the Superior Court is reversed and the case remanded for a new trial.

NIX, Justice, concurring.

While I believe that the judgment of sentence in this matter must be reversed and a new trial awarded, my reasons for reaching this result differ from the majority. I cannot agree that Officer Kurtz's direction to appellant that he alight from his vehicle was such an arbitrary and unreasonable invasion of appellant's liberty as to violate the fourth amendment.

The requirements of the fourth amendment applicable to the instant case were set forth most recently by the United States Supreme Court in United States v. Brignoni-Ponce,

[ 471 Pa. Page 554422]

U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

"The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person," Terry v. Ohio, supra, at 16, 88 S.Ct. [1868] at 1877, and the Fourth Amendment requires that the seizure be "reasonable." As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest, and the individual's right to personal security free from arbitrary interference by law officers. Terry v. Ohio, supra, at 20-21, 88 S.Ct. [1868] at 1879; Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967)." Id. at 878, 95 S.Ct. at 2578 (emphasis added).

The application of this balancing test to the instant facts yields the conclusion that Officer Kurtz's action was reasonable. The intrusion occasioned by requiring appellant to step out of the vehicle was minimal. Appellant had in fact already been "seized". He was properly detained by Officer Kurtz for a violation of the Motor Vehicle Code. Appellant's freedom of movement was thus lawfully restricted until the officer had finished his business. Requiring a motorist to leave his vehicle under these circumstances is in my view, of no constitutional moment.*fn1

[ 471 Pa. Page 555]

The de minimus nature of the intrusion is clearly outweighed by the public interest in insuring the safety of our law enforcement personnel.*fn2

I would thus hold that when appellant alighted from the car, pursuant to the officer's instructions, the limited search for weapons was justified by the observable bulge under appellant's jacket. See Terry v. Ohio, supra.

I join my brethren, however, in remanding this matter for a new trial because I believe the trial judge erred in permitting the Assistant District Attorney to cross-examine a defense witness concerning the witness' and the appellant's religious affiliations.

[ 471 Pa. Page 556]

Clayton Morrison, a passenger in the vehicle at the time of appellant's arrest,*fn3 testified for the defense that he and not appellant had brought the revolver into the vehicle, and that it was found not on appellant, but under the car seat. On cross-examination, the Assistant District Attorney questioned the witness as to his and Morrison's religious affiliations as follows:

"Q. Tell me, are you a good friend of Harry Mimms?

"A. I am an acquaintance of him, I know him.

"Q. You know him very well would you say?

"A. Yes, sir.

"Q. Are you both Muslims?

"A. Sir?

"Objection: Sir, I move for withdrawal of a juror.

"THE COURT: Overruled.

"Q. Are you both Muslims?

"A. Yes, sir.

"Q. In other words, when you say 'Muslims', followers of the Islam faith is that right?

"A. Yes."

Appellant's religious affiliations were never mentioned during direct examination. The Commonwealth does not contend that the questions were relevant to any factual matter at issue during the trial,*fn4 but argues that the testimony was introduced to show the witness' relationship

[ 471 Pa. Page 557]

    to the appellant and put his credibility in issue. However, our legislature has provided that:

" [n]o witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility." Act of April 23, 1909, P.L. 140, § 3, 28 P.S. § 313 (1958) (emphasis added).

We have stated that no verdict which may have been brought about or even influenced by a litigant's religious affiliations should be permitted in a court of justice. O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 346-47 n. 5, 51 A.2d 775, 793-94 n. 5, cert. denied, 332 U.S. 766, 68 S.Ct. 74, 92 L.Ed. 351 (1947). This is particularly so where, as here, the religious affiliation placed before the jury is that of a highly controversial and extensively publicized group like the Black Muslims. The potentially prejudicial impact of such testimony is obvious, and its use by the Commonwealth in its attempt to impeach Morrison was error, requiring a new trial.

Accordingly, I concur in the judgment of the Court granting appellant a new trial.

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