Com. v. Pollard

• Decision Date: 13 December 1971
• Citation: 286 A.2d 373,220 Pa.Super. 322
• Parties: COMMONWEALTH of Pennsylvania v. Alfred POLLARD, Appellant.
• Court: Pennsylvania Superior Court

Page 373

286 A.2d 373

220 Pa.Super. 322

COMMONWEALTH of Pennsylvania v. Alfred POLLARD, Appellant.

Superior Court of Pennsylvania.

Dec. 13, 1971.

Appeal No. 966, October Term, 1971, from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County at No. 1917, April Term, 1970; John E. Walsh, Jr., Judge.

John W. Packel, Chief, Appeals Div., Vincent J. Ziccardi, Defender, Philadelphia, for appellant.

James T. Ranney, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.

PER CURIAM.

Judgment of sentence affirmed.

HOFFMAN, Judge (dissenting):

Appellant claims that the court below erred in not suppressing the evidence used against him which led to his conviction on the charge of possession of narcotic drugs.

The facts, as found by the lower court, are as follows:

"(The) defendant was a passenger in the right, front seat of an automobile. The (arresting officer) and a brother officer stopped the automobile for going through a red traffic signal. The officer went over to the right of the car. He then ordered the passengers to alight from the vehicle.... (D)efendant had committed no crime to (the knowledge of the arresting officer) at the time (defendant) was ordered from the car.

"As the defendant removed himself from the vehicle, the (arresting) officer saw him drop a white packet from his hand to the ground. Based upon his experience, the officer believed the packet contained heroin." This packet was retrieved by the officer, and its contents were found to be heroin, which evidence was introduced at appellant's trial.

Based on the above finding, the court below found that appellant was arrested when he was ordered from the vehicle, and "since the arrest of the defendant or the search of the vehicle are apparently illegal, the heroin which was discovered contemporaneously with these two events must be suppressed if it be the fruit of these illegalities." Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970).

The lower court found, however, that the seizure of the heroin subsequent to the illegal arrest was not the product of the illegal arrest, but instead was "sufficiently distinguishable to be purged of the primary taint."

The lower court's conclusion is based upon its reliance on the fact that the appellant threw the packet of heroin to the ground when ordered out of the vehicle by the police officers. This act led the lower court to conclude that when appellant "discarded the heroin he abandoned his interest therein, and the government was then entitled to confiscate the heroin. As such, no search, in the view of the lower court, was consummated.

In my view, the lower court has taken an unduly restricted view of the scope of the Fourth Amendment's proscription against unreasonable searches and seizures. Specifically, the exclusionary rule has been applied to the seizure of things and the taking of confessions following illegal arrests. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The proper test applied in determining whether such evidence should be excluded is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." 371 U.S. at 488, 83 S.Ct. at 417.

This test...