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decided: February 23, 1979.


No. 45 October Term, 1978, Appeal from Order of the Court of Common Pleas of Delaware County, No. 3854 September Term. 1975, per William R. Toal, Jr., J.


Carmen P. Belefonte, Media, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Cercone, Spaeth and Lipez, JJ. Spaeth, J., files a concurring opinion.

Author: Lipez

[ 264 Pa. Super. Page 38]

The appellant, Joseph Collini, was convicted, after a trial without a jury, of possession of controlled substances and of possession of controlled substances with intent to deliver, and criminal conspiracy.*fn1 Appellant's Motion in Arrest of Judgment on the conspiracy conviction was granted, and his Motions in Arrest of Judgment and for a New Trial as to the other convictions were denied. Appellant contends that (1) his warrantless arrest by local police and the search of his person which followed were unlawful; (2) a warrantless search of his home was conducted without his consent; and (3) his inculpatory statement to the police was involuntary under Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since we agree that the search of appellant's person which led to the discovery of illegal drugs was unreasonable and thus unlawful because (1) the mere stop of appellant's vehicle by local police for a summary offense under the Vehicle Code was not an arrest and therefore could not justify a search of the vehicle or its driver or passengers; (2) there were no circumstances attendant upon the stopping of appellant's vehicle by the police for a traffic violation which would justify a search such as was found reasonable in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), on remand sub nom. Com. v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978); and (3) the arrest of appellant, immediately before the search, for the possession of what the arresting officer mistakenly believed to be a controlled substance cannot justify the search as pursuant thereto since it was not based on probable cause and was therefore illegal, we reverse the judgment

[ 264 Pa. Super. Page 39]

    of sentence and grant appellant a new trial. We conclude that the evidence obtained in the search of appellant's home and the statement obtained from him after he had been arrested and detained were the fruit of unlawful arrest of appellant and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

On June 24, 1975, at approximately 3:21 p. m., Upper Darby police patrolling in an unmarked car and not in uniform observed a vehicle driven by appellant commit traffic violations.*fn2 They radioed for a marked car intercept, but, upon learning that none was in the area, they pursued and stopped appellant's vehicle themselves. After taking appellant's operator's license and vehicle registration card, one of the officers reached into the vehicle, picked up an object resting on the dashboard, and put it into his pocket. The officer, believing that the object was peyote, then arrested appellant for possession of a controlled substance.*fn3 Appellant protested, telling the officer that the object was a block of wood. This statement was true. Appellant was then ordered out of his vehicle, and a search of his person revealed three packets of contraband -- two containing marijuana and one containing PCP (also known as "angel dust"). Another officer, who had arrived at the scene in response to an assist officer call, removed a burlap bag from under the front seat after seeing appellant's wife move her foot toward an object under the seat. The bag was found to contain approximately $13,000 in cash. Appellant's wife and four other passengers were thereupon arrested, and all were taken to the police station, where questioning was narrowed to appellant and his wife. During a warrantless search of their home, conducted pursuant to a consent form executed by appellant and his wife while under arrest at the police station, the police discovered and seized quantities of a

[ 264 Pa. Super. Page 40]

    number of illegal drugs. Appellant was transported to his home by the police and was present during the search. He was then taken back to the police station, where police obtained from him an incriminating statement admitting his involvement in the sale of drugs.

Appellant's pre-trial motion to suppress the evidence of drugs found on appellant's person and in his home, and his statement, was denied, the hearing judge concluding that, as to appellant, there had been probable cause for the arrest and that all items of evidence and the statement had been lawfully obtained.*fn4

We first consider whether the stop by the police of appellant's vehicle for a Vehicle Code violation, without more, provides sufficient basis for the subsequent search of appellant's person. In order to clarify our discussion of this issue, we shall assume arguendo that there was no arrest for possession of a controlled substance.

The instant case is readily and fundamentally distinguishable from Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). In Gustafson a local police officer in a Florida community saw the petitioner's car, which had out-of-state license plates, weave across the center line of the road several times.*fn5 The officer then stopped the petitioner's car and asked the petitioner, who was driving, for his operator's license. Upon being informed by the petitioner ...

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