311 A.2d 914 (Pa. 1973), Commonwealth v. Jeffries

• Citation: 311 A.2d 914, 454 Pa. 320
• Opinion Judge: Author: Eagen
• Party Name: COMMONWEALTH of Pennsylvania, Appellee, v. Howard JEFFRIES, Appellant.
• Case Date: November 26, 1973
• Court: Pennsylvania Supreme Court

Page 914

311 A.2d 914 (Pa. 1973)

454 Pa. 320

COMMONWEALTH of Pennsylvania, Appellee,

v.

Howard JEFFRIES, Appellant.

Supreme Court of Pennsylvania.

November 26, 1973.

Page 915

[454 Pa. 321] Norman Paul Wolken, Wolken & Landy, Pittsburgh, for appellant.

Rogert W. Duggan, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., L. R. Paulick, Pittsburgh, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

This is an appeal from an order of the Superior Court, ¹ affirming the judgment of sentence imposed [454 Pa. 322] upon appellant, Howard Jeffries, following his conviction of possession of narcotic drugs after trial before a judge sitting without a jury. We reverse because of the admission at trial of certain evidence obtained by the police in violation of the Fourth Amendment. ²

Page 916

The record discloses the following pertinent facts.

On the afternoon of November 6, 1970, four police officers in an unmarked police automobile observed Jeffries walking along a public street in Pittsburgh. One officer testified when Jeffries saw the officers, he 'quickened his pace.' Upon seeing him do so, the officer left the police vehicle and started to pursue Jeffries, who then began to run. While giving chase, the officer observed Jeffries throw a cigarette package under an automobile parked along the street. Shortly thereafter, the officer overtook Jeffries and directed him to stand against a wall. At that moment the other officers arrived on the scene and they were told by the officer, who apprehended Jeffries, to 'hold him one minute.' The officer then recovered the cigarette package from underneath the parked vehicle, and it was found to contain several foilwrapped package of a substance later determined to be heroin.

Jeffries argues the police had no lawful right to chase him and arrest him, and the fruits of the unlawful police activity should have been suppressed. The Commonwealth counterargues the police had probable cause to pursue and arrest Jeffries, or alternatively, his conduct gave them cause to conduct an investigatory stop, thus the evidence was properly admitted since it was not the fruit of illegal activity. Moreover, the Commonwealth argues the evidence was obtained independent of an arrest or search; hence, the legality of the arrest merits no consideration. Given this premise, the [454 Pa. 323] Commonwealth contends the narcotics should be admitted under the doctrine of abandoned property, or under the plain view doctrine.

The lower court found the action of the police officers constituted an arrest with probable cause. ³ The law is clear a warrantless arrest is constitutionally invalid unless based on probable cause, ⁴ which is defined as, facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information, sufficient in themselves to warrant a man of reasonable caution to believe an offense has been or is being committed, and the person to be arrested has committed the offense. ⁵

In the instant case, the Commonwealth contends that Jeffries' flight supplied the necessary factual foundation for probable cause. This Court, however, has consistently rejected the contention that flight, in and of itself, constitutes probable cause to arrest. In Commonwealth v. Pegram,450 Pa. 590, 301 A.2d 695 (1973), this Court stated:

'Although flight may indicate, to some degree, 'consciousness of guilt', Commonwealth v. Collins, 440 Pa. 368, 371, 269 A.2d 882, 884 (1970), flight standing alone . . . is not sufficient to [454 Pa. 324] establish probable cause for an arrest. As the Superior Court noted in Commonwealth v. Santiago, 220 Pa.Superior Ct. 111, 114--115, 283 A.2d 709, 711 (1971):

Page 917

'The Commonwealth urges that even if this does not constitute probable cause the subsequent flight created valid grounds for the arrest. The Court in United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966), considered the question of whether flight could constitute probable cause and stated: 'Flight, coupled with other factors, such as knowledge of the defendant's prior criminal record or the sight of contraband or screams for help or reliable information that defendant had attempted to commit or had committed a crime, may be strong indication that there is something that those fleeing wish to hide from the police and may constitute probable cause for arrest. . . . However, Flight, in and of itself, is not sufficient to constitute probable cause for otherwise anyone, who does not desire to talk to the police and who either walks or runs away would always be subject to a legal arrest. Such a procedure cannot be countenanced under the Fourth and Fourteenth Amendments as presently interpreted by the Supreme Court."'

Id. at 593--594, 301 A.2d at 697. See also Commonwealth v. Roscioli, Pa., 309 A.2d 369 (1973); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). Since there were none of the above mentioned factors to couple with the element of flight, probable cause did not exist to arrest Jeffries. ⁶

[454 Pa. 325] Notwithstanding this finding, the Commonwealth attempts to justify the officer's action as a stop or seizure under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). We cannot however, agree with this position.

This Court interpreted Terry and Sibron in Commonwealth v. Hicks,434 Pa. 153, 253 A.2d 276 (1969), and stated:

'(E)ven if probable cause to arrest is absent, the police officer may still legitimately seize a person, such as Hicks was seized in this case, and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, If the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.' (Emphasis supplied.)

Id. at 158--159, 253 A.2d at 279. To come within the Terry, rule, therefore, the police must be able to point to articulated facts which give rise to the reasonable belief criminal activity is afoot. See also Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), and Commonwealth v. Pegram, supra. Instantly, there is not one fact which would give rise to the reasonable belief Jeffries was involved in criminal activity. Jeffries was simply walking along a public street in Pittsburgh in broad daylight and when he saw a police officer he knew, he 'quickened his pace' and started to run when the officer began to chase him. This is not enough to justify a seizure under Terry, as interpreted by this Court, absent some other factor which would give rise to suspicion of criminal conduct.

Thus, it is clear the police had no right to 'arrest' or 'seize' Jeffries and the action of the police in chasing[454 Pa. 326] him and subsequently arresting him was a violation of his Fourth Amendment rights. ⁷

Page 918

The Commonwealth however, asserts that notwithstanding a finding of primary illegality, the evidence should be admissible because there was no search and the property was abandoned. In Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973), this Court was confronted with this exact question and stated:

'Although abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action.

'As the Fifth Circuit noted in Fletcher v. Wainwright: 'Several courts have considered this situation and have uniformly held that the initial illegality tainted the seizure of the evidence since the throwing was the direct consequence of the illegal entry. In such a situation it cannot be said that there was a 'voluntary abandonment' of the evidence. The only courts that have allowed the seizure of evidence...