Appeal from the Order of the Superior Court of Pennsylvania Entered January 29, 1987 at No. 478 Philadelphia 1986 Vacating the Judgment of the Luzerne County Court of Common Pleas Entered December 17, 1985 at No. 691, 1985.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., files a dissenting opinion in which Zappala, J., joins.
The question presented in this case is whether the search of a jacket found on a chair in an apartment, belonging to a visitor (Appellee) to the apartment, was included within the scope of a warrant to search the apartment for drugs and other contraband.
Members of the Pennsylvania State Police, Drug Law Enforcement Division, obtained a search warrant for 93 Main Street, Apt. D in Luzerne, Pennsylvania. The warrant authorized the search of the premises and of the person of Tina Cosgrove an occupant of Apt. D, for cocaine, other
controlled substances and any paraphernalia and records associated with the distribution of controlled substances. The search warrant and affidavit also noted that Appellee, Timothy Scott Reese, was an associate of Cosgrove, had been observed in the apartment and had been a target of drug law enforcement investigations.*fn1
The search of the Cosgrove residence was executed on March 22, 1985. Upon entering the apartment, the police found Cosgrove and Reese in the kitchen, read the warrant and began the search. Officer Carl Allen, who was assigned to watch Cosgrove and Reese, noticed a black leather jacket that was draped over a kitchen chair approximately four feet away from him. Without knowing who the jacket belonged to but suspecting that it may contain contraband, the officer searched the jacket and found "brass knuckles." Reese acknowledged ownership of the jacket and was arrested and charged with the possession of "brass knuckles" a prohibited offensive weapon under the Crimes Code. 18 Pa.C.S.A. § 908 (Purdons, 1983).
Prior to trial, Reese filed a motion to suppress evidence of the "brass knuckles" which was denied by the suppression court after a hearing. At trial the "brass knuckles" were admitted into evidence and the jury found Reese guilty of possessing a prohibited offensive weapon. He was sentenced to two and one-half months to twenty-three and one-half months imprisonment. The trial judge denied Reese's motions in arrest of judgment and for a new trial.
On appeal, the Superior Court vacated the judgment of sentence on the ground that the suppression court erred in not suppressing the "brass knuckles". That court held that search of Reese's jacket was not within the scope of the warrant because "the circumstances surrounding examination of the jacket all argue the conclusion that it belonged
. . . to Reese" and could not have been "part of the general content of the room." Commonwealth v. Reese, 360 Pa. Super. 347, 520 A.2d 491 (1987). The Commonwealth petitioned this Court for allowance of appeal. We granted allocatur and we now reverse.
The Fourth Amendment of the United States Constitution requires that "no warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched and the persons or things to be seized". U.S. Const. amend IV. Similarly, the Pennsylvania Constitution states that "no warrant to search a place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause." Pa. Const. art. 1 § 8. The major purpose of the particularity requirement is to prevent general searches. This "requirement ensures that the search will be carefully tailored . . . and will not take on the character of the wide-ranging exploratory searches the Framers [of the United States Constitution] intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 80 (1987).
This Court in Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970), held that a person's (visitor's) mere presence in a private residence in which a search warrant is being executed does not, without more, justify a search of that person under the authority of the search warrant. Additionally, in Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), this Court held that the search of the personal property of a visitor ...