No. 859 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 80-04-1875.
Richard R. Fink, Levittown, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wickersham and Cirillo, JJ. Spaeth, J., files a concurring opinion.
[ 317 Pa. Super. Page 258]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County on convictions of carrying firearms on public streets or public property in Philadelphia and firearms not to be carried without a license (18 Pa.C.S. §§ 6108, 6106). We affirm. The pertinent facts are as follows.
On December 18, 1979, appellant George Reicherter was detained by Philadelphia police officers as he was riding, in a friend's truck, away from his residence immediately before a search of the residence by federal and city authorities was to begin. Reicherter was frisked at that time by a Philadelphia detective and a Colt pistol was found on his person. Reicherter was charged with firearms violations; he subsequently moved to suppress the pistol, which motion was denied. Reicherter was tried in Municipal Court and found guilty of carrying firearms on public streets or public property in Philadelphia and of firearms not to be carried without a license and fined $200 plus $50 costs. An appeal and trial de novo in the Philadelphia County Court of Common Pleas followed with the same verdicts and sentence. Post-verdict motions were filed and denied. This appeal followed.
[ 317 Pa. Super. Page 259]
Appellant Reicherter frames the first two issues involved as follows:
Did the Commonwealth fail to articulate a justification for the stopping and frisking of the appellant for weapons which led to the discovery of the Colt revolver?
Did the Commonwealth's possession of a search warrant for the appellant's residence justify his arrest and the search incident to that arrest which yielded the Colt revolver?
Brief for Appellant at 2.
Reicherter argues that the police had no probable cause to stop and search him and that the seized weapon must, therefore, be suppressed.
The Supreme Court recently held in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), that when police officers executing a valid search warrant encountered the owner of the premises to be searched descending the front steps outside the premises, they were justified in requiring him to re-enter the house for the duration of the search. As the Supreme Court stated: "Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." 452 U.S. at 705, 101 S.Ct. at 2595 (footnotes omitted).
The Supreme Court reasoned as follows:
Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent's house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his ...