Com. v. Berrios

• Decision Date: 20 March 1970
• Citation: 263 A.2d 342,437 Pa. 338
• Parties: COMMONWEALTH of Pennsylvania v Ishmael BERRIOS, Appellant.
• Court: Pennsylvania Supreme Court

Page 342

263 A.2d 342

437 Pa. 338

COMMONWEALTH of Pennsylvania v Ishmael BERRIOS, Appellant.

Supreme Court of Pennsylvania.

March 20, 1970.

Vincent J. Ziccardi, Defender, Melvin Dildine, Chief, Appeals Division, David Rudovsky, Asst. Defender, Philadelphia, for appellant

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Philadelphia, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN, Justice.

Following trial before a judge without a jury in Philadelphia County, Ishmael Berrios was convicted of carrying a concealed deadly weapon in violation of the Uniform Firearms Act. ¹ After post trial motions were denied, a prison sentence was imposed. On appeal, the Superior Court affirmed the jdugment without opinion, 214 Pa.Super. 708, 249 A.2d 794. We granted allocatur and now reverse.

Berrios and a companion, while walking on a street in Philadelphia, were stopped by two policemen without a warrant and 'frisked.' A .38 revolver was found concealed in Berrios' belt, and testimony of the policemen concerning Berrios' possession of the gun and the gun itself were introduced as evidence against him at trial, over objection. We conclude that the frisking of Berrios' clothing and the seizure of the gun violated his rights under the Fourth Amendment, and that evidentiary use thereof, was therefore constitutionally impermissible.

A policeman may legally stop a person and question him. ² But he may not without a warrant restrain that person from walking away and 'search' his clothing, ³ unless he has 'probable cause' to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped and searched that the policeman may reasonably conclude that criminal activity may be afoot, and that the person with whom he is dealing may be armed and dangerous. Terry v. Ohio, supra n. 3; Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

The Commonwealth does not contend that the policemen involved had probable cause to arrest Berrios, but urges that the stopping and searching was justified under the second alternative enunciated before. We are not so persuaded.

A search on this ground is justified only when 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger': Terry v. Ohio, supra n. 3 at 27, 88 S.Ct. at 1883. In other words, the sole justification for such a search is the protection of the police officer or others nearby. Moreover, the arresting officer must be able 'to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.' Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968). Good faith on the part of the officer, in itself, is not enough: Terry v. Ohio, supra n. 3. The facts disclosed by this record do not meet the foregoing mandated standards.

The pertinent trial evidence was as follows:

At 9:21 a.m. on March 2, 1968, the police officers involved received information over the radio of their police automobile that a shooting had occurred at 2424 North Sydenham Street, Philadelphia; that three males, two negroes in dark clothing, and one Puerto Rican in light clothing, believed to be involved, were observed...