Commonwealth v. Cruse

• Decision Date: 22 September 1975
• Citation: 236 Pa.Super. 85,344 A.2d 532
• Parties: COMMONWEALTH of Pennsylvania v. David CRUSE, Appellant.
• Court: Pennsylvania Superior Court

344 A.2d 532

236 Pa.Super. 85

COMMONWEALTH of Pennsylvania v. David CRUSE, Appellant.

Superior Court of Pennsylvania.

September 22, 1975.

George E. Goldstein, Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE Judge:

This is a direct appeal from appellant's conviction, in a non-jury trial, of unlawfully carrying a firearm without a license.

The facts which gave rise to appellant's arrest can be briefly stated as follows. On January 27, 1972 at approximately 10:30 P.M. Sgt. Bayer, of the Philadelphia Police Department received a radio call directing him to proceed to 35th and Powelton Avenue where he would find a white Dodge bearing license number 39210Z which would be occupled by two Negro males and a Puerto Rican female. The radio message indicated that the occupants of the car were armed and were in the area to purchase a large quantity of narcotics. Sgt. Bayer requested that another car and a wagon meet him approximately 50 yards from the location of the white Dodge. The police vehicles met and four officers then approached the white Dodge with their weapons drawn. Upon arriving at the car the officers ordered the occupants out. The appellant, who was sitting in the right front seat reached down between his legs toward the floor and was then pulled from the car. Upon searching the car, the police officers found a revolver underneath the front seat, where appellant had been sitting.

Appellant contends that the arrest and subsequent search of the vehicle was improper in that it was based upon an unsupported allegation of illegal conduct made by an anonymous informer. Implicit in appellant's contention are two facts which are questioned by the Commonwealth. First the Commonwealth refers to the incident as a protective search which resulted in an arrest rather than an arrest and subsequent search. Although this appears to be primarily a question of semantics it is important in that if the incident is viewed as an arrest and subsequent search the standards used to determine whether the officers' actions were proper would be the standards governing warrantless arrests while if the incident is viewed as a protective search and arrest the standard used would be those governing stop-and-frisk cases.

Secondly the Commonwealth disputes appellant's contention that the officers' action was based upon an unsupported allegation made by an anonymous informer. The Commonwealth contends that the radio message was a sufficient basis for the officers' conduct. While this might in some cases be true, it assumes that the radio message itself had a proper basis. The United States Supreme Court addressing this problem in Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971) stated:

'We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. . . . Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.' See also Commonwealth v. Kenney, 449 Pa. 562, 566--567, 297 A.2d 794 (1972).

In the instant case the Commonwealth neither at trial nor at pre-trial hearings made an effort to establish the basis of the radio call. However from testimony of Sgt. Bayer at a suppression hearing it is apparent that the information on which the radio call was based was obtained from a tip from an anonymous informer.

We are now faced with the problem of whether the search was proper under warrantless arrest or stop-and-frisk standards. The Pennsylvania Supreme Court has thoroughly analyzed the problem of warrantless arrests based on information received from anonymous informers and has put forth the following standard in the case of Betrand Appeal, 451 Pa. 381, 385--386, 303 A.2d 486, 488 (1973):

'However, when, as here, probable cause for a warrantless arrest is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional information before probable cause is established. First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the robbery. Second, in order to reduce the possibility that a tip meeting the first standard is merely a well constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); cf. Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).' See also Commonwealth v. Lassiter, 457 Pa. 582, 321 A.2d 902 (1974) and Commonwealth v. Brown, 228 Pa.Super. 158, 323 A.2d 104 (1974).

In the instant case the officers neither knew the underlying circumstances from which the anonymous informer concluded the appellant was armed and about to make a large narcotics purchase nor did the officers have a reasonable basis for concluding that the source of the tip was reliable. Accordingly, it is clear that in the instant case probable cause for the warrantless arrest could not be based on information from an anonymous informer and in turn the evidence obtained from a subsequent search could not be offered into evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Having determined that the necessary probable cause did not exist for a warrantless arrest we must now determine if the officers' conduct was justifiable under stop-and-frisk standards. The United States Supreme Court addressed this problem in the cases of Terry v. Ohio, 392 U.S. 1 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). In light of these cases the Pennsylvania Supreme Court, in the case of Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), held that, first, seizure and search is proper if the police officer has probable cause to arrest, and as was pointed out above no such probable cause exists in the instant case; and second, even if probable cause to arrest is absent, the officer may seize and search for protective reasons '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.' 434 Pa. 158--159, 253 A.2d 279 (emphasis supplied). In applying this test to the instant case it is clear that the officers could not have concluded that criminal activity was afoot or that the appellant was armed and dangerous on the basis of their own personal observations. However this is not to say that a stop-and-frisk can only be based on an...