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07/23/97 COMMONWEALTH PENNSYLVANIA v. CARL JACKSON

July 23, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
CARL JACKSON, APPELLANT



Appeal from Judgment of the Superior Court Filed on October 23, 1995 at No. 2837 Philadelphia 1994 Affirming the July 21, 1994 Judgment of Sentence at M.C. # 9305-3364 of Philadelphia County, Affirmed by a Judgment of the Court of Common Pleas of Philadelphia County at M.R. # 94-007112. JUDGE(S) BELOW: CCP - Hon. Jacqueline F. Allen / Superior - CIRILLO, TAMILIA, AND HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Madame Justice Newman files a Dissenting opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY :

DECIDED: July 23, 1997

In this case, we revisit the issue of whether the police have reasonable suspicion to conduct a stop and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), based solely on an anonymous tip that a person matching the suspect's description is carrying a gun. This case also presents the question of whether an article abandoned by the appellant during the course of the stop and frisk may be admissible into evidence at appellant's trial notwithstanding the legality of the frisk, on the grounds that appellant lacked any reasonable expectation of privacy in the article. For the reasons that follow, we answer both questions in the negative, thus reversing the decision of the Superior Court.

At approximately 10:23 p.m., a Philadelphia police officer received a police radio report of a man in a green jacket carrying a gun. Other than the location, no additional details were provided.

The officer responded, arriving at the corner of Snyder Avenue and Seventh Street approximately two minutes after receipt of the broadcast. A number of individuals were present at the location, of whom only the appellant was wearing a green jacket. There is no contention that the appellant was acting suspiciously.

The officer exited his vehicle and immediately searched the appellant for weapons. None were found, but as the officer searched around the appellant's ankles, he observed a small key box fall to the ground in the vicinity of appellant. The officer retrieved the box and examined it. The box proved to contain 14 packets of cocaine.

Prior to his trial for possession of a controlled substance, the appellant moved to suppress the contents of the key box as the fruit of an illegal search. The municipal court found that the search was legal pursuant to Terry, and that because appellant had thrown the box away, he had abandoned it and thus lacked standing to challenge the subsequent search of its contents. The appellant was convicted of possession of a controlled substance and sentenced to one year's probation. The Court of Common Pleas and the Superior Court upheld the municipal court's suppression rulings. This court granted allocatur.

Our standard of review of the lower courts' suppression rulings was set forth in Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) cert. den. 474 U.S. 950, 106 S. Ct. 349, 88 L. Ed. 2d 297:

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal Conclusions drawn from those facts are in error.

The principal issue presented by this case is the legality of the stop and frisk under Article I, § 8 of the Pennsylvania Constitution *fn1 and the Fourth Amendment of the United States Constitution, *fn2 both of which protect the individual against unreasonable searches and seizures. The protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that under the federal Constitution, see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). However, because the protection afforded by the Pennsylvania Constitution may never be less than under the federal Constitution, and also because Pennsylvania has always followed Terry in stop and frisk cases, see Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), we begin our analysis with the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

In Terry, the United States Supreme Court addressed the constitutionality of the admission against a criminal defendant of evidence located during a pat-down search of a suspect for concealed weapons. The Court recognized that two ...


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