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COMMONWEALTH PENNSYLVANIA v. HAZEL W. BURGWIN (11/13/81)

filed: November 13, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
HAZEL W. BURGWIN, APPELLANT



No. 1120 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. 7901965A.

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Hester, Brosky and Van der Voort, JJ.

Author: Brosky

[ 292 Pa. Super. Page 275]

Appellant appeals from a conviction of violation of the Uniform Firearms Act, 18 Pa. C.S.A. ยง 6106. Appellant contends that the trial court erred in its denial of his pretrial motion to suppress evidence obtained by an allegedly illegal search and seizure. Appellant was sentenced to not less than eleven and one-half months incarceration and not more than twenty-three months. We agree with the judgment of the trial court and affirm the conviction.

At approximately 8:00 a. m. on the morning of February 13, 1979, a confidential informant walked into the No. 2 Police Station of the City of Pittsburgh and gave certain information to two policemen on duty at the time. The informant stated that a black male, driving a black 1975 Oldsmobile Ninety-Eight with a white roof bearing a certain Pennsylvania license number, was carrying a gun on his person. The policemen were also told by the informant that the car was being driven around the Hill District section of Pittsburgh.

Pursuant to this information, at approximately 10:30 a. m., the two policemen left No. 2 Station to go to No. 1 Station to attempt to secure a search warrant. While enroute, the officers observed a car fitting the informant's description. They stopped the car, extracted the four male occupants from it, and searched them. A revolver was found in a coat pocket of the driver. Appellant was arrested and later convicted of a violation of Uniform Firearms Act.

Appellant's contention is that because the search was conducted without a warrant, the evidence obtained from the search is inadmissible.

It is axiomatic that a search of an automobile may be conducted without a warrant when there exists probable

[ 292 Pa. Super. Page 276]

    cause to search and exigent circumstances necessitating a search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456 (1973). Appellant, however, argues that the circumstances in this case were not sufficiently exigent to justify a warrantless search. He contends that, first, there can be no exigent circumstances where the police voluntarily delayed for two and one-half hours before attempting to secure a warrant, and, second, none existed because appellant was not alerted to any steps taken against him by the police.

As to appellant's first contention, we adopt the holding and rationale of the four justice plurality in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In Cardwell, as in this case, probable cause for seizure existed for some time prior to the search. The ...


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