Commonwealth v. Altizer
| Decision Date | 12 September 1968 |
| Citation | 213 Pa.Super. 201,245 A.2d 692 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Noah ALTIZER. |
| Court | Pennsylvania Superior Court |
Louis M. Natali, Jr., Asst. Defender, Melvin Dildine, Chief, Appeals Div., Herman I. Pollock, Defender Philadelphia, for appellant.
Gordon Gelfond, Asst. Dist. Atty., James D. Crawford, Asst. Dist Atty., Chief, Appeals Div., Arlen Specter, Dist. Atty Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN SPAULDING and HANNUM, JJ.
This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Philadelphia granting appellee's motion for new trial based on the determination that evidence introduced by the Commonwealth was the product of an unlawful search and seizure.
On July 13, 1967, Police Officer John Kennedy was approached while on duty by a man who stated that he had been in a nearby bar called Track 7, located at 1226 Filbert Street, and that a man sitting next to him had asked him if he wished to buy some postal money orders for 'ten dollars apiece.' When asked if he believed the informant, Officer Kennedy said that he did. [1] Although he gave a complete description of the man, the informant refused to give his own name. On the basis of that information, the officer went to the bar where he observed appellee, Noah Altizer, who fitted exactly the description by the unnamed informant. He also observed the top half of a packet protruding from appellee's left rear pocket which he correctly assumed, from its shape, to be money orders. [2] Altizer was then handcuffed and taken to the Central Detective Division where it was established that the money orders had been issued from the Bryant, Alabama post office and were among approximately two thousand stolen during a February 20, 1967 burglary of that office.
At a pretrial proceeding, the Honorable Charles L. Guerin dismissed appellee's motion to suppress the evidence resulting from the search of appellee. Trial was held before the Honorable Robert N. C. Nix, Jr., sitting without a jury, and appellee was adjudged guilty of receiving stolen goods. After argument on post trial motions, a new trial was granted by Judge Nix, who stated: 'There was not sufficient probable cause to justify the search and * * * the evidence should have been suppressed.' From this determination the Commonwealth now appeals, the sole issue being the validity of the search and the subsequent arrest. [3]
In response to appellee's claim that the search was invalid the Commonwealth initially contends that probable cause is unnecessary in the case of a seizure by a police officer of contraband which is in plain view. This is a correct statement of the law but apparently is out of context when offered for application in the instant case.
In Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427 (1964), rev'd on other grounds sub. nom., One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), contraband was stated to be things and objects outlawed and subject to forfeiture and destruction upon seizure. The term has been applied to such articles as cannot be owned or possessed legally, or are such as are capable of use only in the commission of a crime. For example, contraband has been held to include, in particular connections, an illicit still, [4] membership lists of an organization seeking to overthrow the government of the United States, [5] moonshine liquor, [6] counterfeit money, gambling devices, blackjacks, etc., [7] slot machines [8] and a malt mill. [9] This would apparently establish one category of articles, i.e., contraband per se, considered such because they cannot be possessed legally. There is, however, another class of articles considered contraband stemmming not from the nature of the article itself but from the use to which an otherwise legitimate article is put. "It is the use to which the property is put that renders property, otherwise lawful, rightful to have, use and posess, subject to seizure and forfeiture'.' One 1958 Plymouth Sedan, supra, at 543, 201 A.2d at 429. In that case, an automobile used in the illegal transportation of liquor was held to be contraband and subject to confiscation.
Neither of these concepts can properly be fitted to the facts of the instant case on the present state of the record, [10] for there is nothing per se illegal in the possession of postal money orders, nor does an offer to sell them reduce them to the status of contraband. [11] Were we to accept the theory that the money orders constituted contraband we would, in effect, circumvent the entire continuum of constitutional safeguards surrounding both searches and arrests where the object of the search was either involved in the commission, or the fruit, of a crime. [12]
As to whether there was in fact probable cause requisite to validate the search by Officer Kennedy, the Commonwealth submits Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), while appellee proposes Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), to be more apposite.
In the Draper case, Marsh, an FBI agent with 29 years' experience, was stationed at Denver, Colorado and, over a period of approximately six months, had from time to time received information from Hereford, a 'special employee' of the Bureau of Narcotics at Denver, for which Hereford was paid small sums of money. Marsh had always found the information given him by Hereford accurate and reliable. On September 3, 1956, Hereford told Marsh that Draper was selling narcotics on a small scale. Four days later, Hereford informed Marsh that Draper had gone to Chicago the day prior and that he would bring back three ounces of heroin to Denver by train on the morning of either September 8th or 9th. Hereford gave Marsh a detailed description of Draper and the clothes he was wearing, mentioned that he would be carrying a tan zipper bag and that he habitually walked very fast. Observation on the morning of the 8th yielded nothing. On the morning of the 9th, however, Marsh and a Denver police officer observed a person with the exact physical attributes and wearing precisely the same clothing described by Hereford alight from an incoming Chicago train and start walking quickly toward an exit. He was carrying a tan zipper bag in his right hand and the left was in his raincoat pocket. He was overtaken and arrested. A subsequent search revealed two envelopes containing heroin in his left hand and a syringe in the zipper bag which he was carrying in his right hand.
In Wong Sun, after arresting one Hom Way and finding heroin in his possession, the FBI learned from him that he had purchased the heroin from one 'Blackie Toy.' Acting on some rather imprecise information rendered by Way, one James Wah Toy was subsequently arrested. (It was never established whether Toy was in fact the 'Blackie Toy' mentioned in Hom Way's information.) Toy revealed, during questioning, that someone known to him only as 'Johnny' had been selling narcotics. He gave the FBI an address of the house where 'Johnny' lived. 'Johnny' was arrested shortly thereafter and, in the course of questioning, stated that he had purchased the heroin from one 'Sea Dog,' revealed by Toy to be Wong Sun. Wong Sun was then arrested.
The Court in Draper, after rejecting the contention that hearsay is not competent to establish probable cause, noted that the information given to Marsh came from one who was employed specifically for that purpose and whose information had always been found accurate and reliable in the past. On that basis, the Court concluded the information was sufficient, when joined with Marsh's own corroboration verifying, to the extent possible, its accuracy, to establish probable cause.
In Wong Sun, the Court held no probable cause had been established and the arrests of James Wah Toy and Wong Sun both were improper. As to the statement in Draper that 'identification of the suspect by a reliable informant may constitute probable cause for arrest where the information is sufficiently accurate to lead the officers directly to the suspect,' the Court noted in contrast that the information which the agents in Wong Sun received 'merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one 'Blackie Toy's' laundry--and whether by chance or other means * * * they came upon petitioner Toy's laundry, which bore not his name over the door, but the unrevealing label 371 U.S. at 480--482, 83 S.Ct. at 413--414. Regarding the arrest of Wong Sun, the Court commented: 'We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds.' Id., at 491, 83 S.Ct. at 419.
As stated in Costello v. United States, 324 F.2d 260 (9th Cir. 1963), there exist See also Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36 (...
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