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COMMONWEALTH PENNSYLVANIA v. FREDERICK MILLINGS (07/29/83)

filed: July 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK MILLINGS, APPELLANT



No. 6 Harrisburg, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, No. 674 CA 1978.

COUNSEL

Penn B. Glazier, Lancaster, for appellant.

Michael E. Bortner, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

Price,*fn* Wieand and Lipez, JJ. Wieand, J., files a concurring opinion.

Author: Lipez

[ 317 Pa. Super. Page 236]

Defendant Frederick Millings appeals from his conviction in a non-jury trial of possession of a controlled substance, 35 P.S. § 780-113(a)(30). He argues that drugs found on his person in a search incident to his arrest should

[ 317 Pa. Super. Page 237]

    have been suppressed because the arrest was made pursuant to an arrest warrant which had been withdrawn following defendant's voluntary appearance and entry of bail, notwithstanding the fact that the arresting officer acted in good faith and without knowledge of the withdrawal. We agree and grant defendant a new trial.

Defendant, who was residing in Maryland, learned that a warrant had been issued in York County, Pennsylvania, for his arrest on charges of retail theft, 18 Pa.C.S. § 3929, and that extradition proceedings were pending. Rather than await extradition, he surrendered himself to York County authorities on May 24, 1978, and appeared at a hearing in the Court of Common Pleas the following day, where he entered a plea of not guilty to the retail theft charges. His case was remanded for trial in the July term of court, and the court directed that the active process be withdrawn and defendant be released on nominal bail.

Several days later, a York County detective who had been involved in the proceedings to extradite Millings on the retail theft charges saw defendant outside a bar. Unaware of defendant's surrender and subsequent release on bail, the detective attempted to ascertain whether the warrant for his arrest was still active by checking the files in the York County Courthouse and the process drawer in the sheriff's office. Both of these sources indicated that the warrant was still an active process.

Concluding that the warrant was still active, the detective returned to the bar and continued surveillance of Millings for two hours, then called York city police for assistance. As the detective and three police officers approached the car in which defendant and several other people were seated, the occupants of the car, including defendant, scattered and began to run. Millings was pursued, apprehended and placed under arrest for retail theft pursuant to the arrest warrant. Although he attempted to explain the circumstances of his previous surrender and release on bail, defendant was transported to the police station and searched prior to his detention there. This search revealed the

[ 317 Pa. Super. Page 238]

    contraband (hashish and heroin) which led to the filing of an information against him for possession of controlled substances. Defendant's motion to suppress the drugs as fruits of an unauthorized arrest was denied, as was his post trial motion for a new trial on the basis that the evidence should have been suppressed, and he ...


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