APPEAL FROM THE ORDER ENTERED OCTOBER 18, 1984 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, CRIMINAL NO. 2402 CA 1983
Thomas L. Kearney, Assistant District Attorney, York, for Com., appellant.
Gerald E. Ruth, York, for appellee.
Wickersham, Cirillo, and Johnson, JJ.
[ 349 Pa. Super. Page 178]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of York County granting a motion to suppress evidence in favor of appellee, Harold Rehmeyer. We reverse.
At approximately 2:00 a.m., on November 19, 1983, Officer Perelman of the York City Police witnessed appellee, Harold Rehmeyer, drive through a red light. Perelman stopped appellee and detected the odor of alcohol on appellee's breath. Perelman had probable cause to believe that Rehmeyer was driving a vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1).*fn1 However, because the officer believed the case was borderline, Perelman decided not to arrest Rehmeyer.*fn2 Instead, the officer suggested that Rehmeyer either call his home and get a ride from someone in his family or accept a ride from the officer in the patrol car. Rehmeyer refused the first option but accepted the latter. However, before allowing Rehmeyer to enter the patrol car, Perelman advised appellee that he would have to undergo a pat-down search. The officer proceeded to execute a limited pat-down search of Rehmeyer for the purpose of discovering any concealed weapons. Perelman conducted this search to insure that Rehmeyer would pose no danger to the officer during the trip to Rehmeyer's home. During the search, Perelman discovered a .22 caliber pistol. Rehmeyer was then charged with violating the Uniform Firearms Act.*fn3
[ 349 Pa. Super. Page 179]
The sole issue on appeal is whether the trial court erred in granting the motion to suppress. The decision of the trial court will only be upheld if the record supports the factual findings of the court and the legal conclusions drawn from those findings. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977); Commonwealth v. Carter, 334 Pa. Super. 369, 483 A.2d 495 (1984).
In deciding this issue, the dispositive question is whether a police officer who properly proposes to take a citizen home in his patrol car can subject that citizen to a pat-down search for weapons where there is no reason to believe he is armed and the individual is not under arrest though the officer has probable case to arrest. We hold that an officer may conduct a limited pat-down search for weapons in such a situation.
"A search is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment." J.W. Hall, Search and Seizures, § 10:3 (1982). These intrusions upon an individual's constitutionally guaranteed rights must be based on either a probable cause to arrest or a policeman's reasonable suspicion that the individual with whom he is dealing is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). Accord Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).
The trial court held that because Rehmeyer was not placed under arrest, the officer had to be operating under a reasonable belief that appellee was armed and dangerous before conducting the pat-down search. This conclusion is not compelled by Terry and we cannot accept it as valid. It is in direct contradiction to the language of Terry which provides that "a search for weapons in the absence of probable cause to arrest. . . must, like any other search, be strictly circumscribed by the exigencies which justify its initiation." Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882 (emphasis added).
[ 349 Pa. Super. Page 180]
Only in those situations where the officer lacks probable cause to arrest must he reasonably suspect that the individual with whom he is dealing is armed before conducting a legitimate protective search. The Terry Court framed the issue as a question of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause to arrest." Terry, 392 U.S. at 15, 88 S.Ct. at 1877. Clearly, Terry supports the proposition that where probable cause to arrest exists, regardless of the officer's decision not to arrest, a search is proper.
Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), is the seminal Pennsylvania case on the limits of permissible searches. Hicks states that "a search and seizure . . . is reasonable and legitimate if the police officer has probable cause to arrest." Hicks, supra, 434 Pa. at 158, 253 A.2d at 279. Nowhere does Hicks qualify or limit the right of an officer to search where he has probable cause to arrest to those situations where the officer effectuates the arrest. For our Court to now so limit or qualify this right would be unreasonable. It would force us to read into Hicks and Terry a requirement that is patently not present in those cases. The rational behind the Hicks decision is to protect citizens from unreasonable searches and seizures in precisely those situations where the officer has no probable cause to arrest nor observes any unusual or suspicious conduct on the part of the individual seized leading the officer to reasonably believe that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Hicks, supra, 434 Pa. at 159, 253 A.2d at 279. Accord Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Neither of ...