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COMMONWEALTH PENNSYLVANIA v. GILBERT D. WHEATLEY (05/04/79)

decided: May 4, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GILBERT D. WHEATLEY



No. 693 April Term, 1977, Appeal from the Order entered on March 25, 1977, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7609437A.

COUNSEL

Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.

John H. Corbett, Jr., Assistant Public Defender, Chief, Appeals Division, Pittsburgh, for appellee.

Cercone, Wieand and Hoffman, JJ. Cercone, President Judge, and Hoffman, J., concur in the result.

Author: Wieand

[ 266 Pa. Super. Page 3]

The Commonwealth appeals from an order suppressing a handgun*fn1 which constituted the basis for charging Gilbert D. Wheatley, appellee, with violating the Uniform Firearms Law.*fn2 The handgun was located in the pocket of Wheatley's jacket, which was hanging on a kitchen chair. It was found by police who were executing a valid warrant to search for heroin and drug paraphernalia in the dwelling of Janet Craighead, the woman with whom Wheatley was living.

The evidence is uncontradicted. Police had probable cause to believe that Janet Craighead was dealing in heroin. Consequently, they obtained a warrant to search her residence at 1311 Paulson Avenue, Pittsburgh, Pennsylvania, for heroin and drug paraphernalia. They also had information that a man named "Hooks" was living with the suspect, but they were uncertain about the identity of this man. During their surveillance of the suspect's dwelling, however, Wheatley had been seen entering the premises on several occasions. On one of these occasions he was observed carrying a bag of groceries. Immediately prior to execution of the search warrant on November 19, 1976, appellee was seen entering the home attired in a black jacket.

[ 266 Pa. Super. Page 4]

When police entered the home pursuant to the warrant, they found "in plain view on the table in the kitchen . . . two shooting outfits consistent with the administering of the drug heroin into a person's veins, that being a small glass of water, two burnt caps, half-spoon foil, approximately one and a half, two inches square, opened up, syringes lying there and straps for the arms." When Wheatley was found at the entrance to the kitchen, he was not wearing a jacket, and his shirt sleeves were rolled up on his arms. Janet Craighead was also present. Police concluded that they "happened to catch them shooting up at the moment." Appellee and Craighead were immediately placed under arrest. Thereafter, a search of the premises was conducted. On the back of a chair in the kitchen was found a black jacket, one that looked like the jacket police had seen appellee wearing when he entered the house earlier that day. An examination of the jacket produced the handgun which prompted the bringing of firearms charges against appellee.

The Commonwealth contends that the seizure of the gun can be justified on two grounds. In the first place, it contends, the gun was discovered inadvertently during the execution of a valid warrant to search the premises for heroin. Secondly, the Commonwealth argues, the gun was discovered during a search incident to appellee's lawful arrest. If the police had a right on either grounds for examining the pockets of appellee's jacket, they were not required to ignore the gun there found or leave the premises and obtain a second warrant before seizing the same.*fn3 Commonwealth v. Martin, 252 Pa. Super. 265, 381 A.2d 491 (1977). See also: Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

In Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), the police had a warrant to search and did search the apartment of one Robert Wander. During the search they

[ 266 Pa. Super. Page 5]

    came across two suitcases which were claimed to be the property of a person known to be the guest of Wander. The police searched the suitcases, one of which was already open, and found marijuana. In holding the suitcase search unreasonable, the Supreme Court laid down the rule as follows: "If a warrant permits the search of premises or effects of a particular person . . . then it cannot be extended by the officer executing the warrant to include a search of things not belonging to or under the control of that person." 455 Pa. at 262-63, 312 A.2d at 32. "Personal belongings brought by their owner on a visit to ...


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