Commonwealth v. Hicks
| Decision Date | 17 November 1966 |
| Citation | 223 A.2d 873,209 Pa.Super. 1 |
| Parties | COMMONWEALTH of Pennsylvania v. Walter HICKS, Appellant. |
| Court | Pennsylvania Superior Court |
Melvin Dildine, Chief, Appeals Div., Herman I Pollock, Defender, Philadelphia, for appellant.
John DiPaul, Asst. Dist. Atty., Alan J. Davis, Asst. Dist. Atty Chief, Appeals Div., Arlen Specter, Dist. Atty Philadelphia, for appellee.
Before ERVIN, P.J., and WRIGHT, WATKINS MONTGOMERY, JACOBS, HOFFMAN and SPAULDING, JJ.
Appellant-defendant was tried and found guilty by the Honorable Robert W Trembath without a jury, on charges of burglary, attempted burglary, and possession of burglary tools. His motions for a new trial and in arrest of judgment having been overruled sentences were imposed on the indictments charging burglary and possessing burglary tools with sentence being suspended on the charge of attempted burglary. The only issues before us are the legality of the actions of the police officer who apprehended the defendant, and the sufficiency of the evidence, particularly the evidence offered to prove the ownership of the buildings alleged to have been burglarized. The indictments named the tenants whose apartments were involved rather than the owners of the buildings. The buildings were identified as 1800 Waverly Street in which Barbara Poet, a Commonwealth witness, had her apartment, and 1634 Lombard Street in which William Lloyd, another Commonwealth witness, had his apartment, both buildings being in the City of Philadelphia.
Barbara Poet testified that she heard a scratching sound at her neighbor's apartment, and found defendant in the hallway, and that he claimed to be looking for one R. J. Reynolds. After defendant left the building she found wood chips on the floor and loose molding around her neighbor's door. The locks to the front door of the apartment building and that of the neighbor's apartment appeared to have been tampered with. William Lloyd testified that he saw defendant in an adjoining building looking for someone, and that his apartment door had in fact been tampered with. Both witnesses were positive in their identification of defendant as the person they saw in their respective buildings.
Officer Closkey testified that after receiving a police report of a burglary at 1634 Lombard Street he stopped defendant whom he saw walking on the street a few (five) blocks from that apartment house. The tenants had described the intruder to the police as a negro with a brown coat and mustache. Officer Closkey also testified that the defendant, when stopped, wore a light colored coat and needed a shave, and that the reason for the stop was for the purpose of investigating the reported burglary. Incident to the stop Officer Closkey frisked defendant and found a penknife with a three inch blade. Defendant was then arrested and taken to 1634 Lombard Street for identification, and subsequently booked on the burglary charges. The knife was introduced as evidence, over objection, at the trial.
We shall first consider defendant's contention that the search which produced the penknife was not incident to a valid arrest and should have been excluded from the evidence at the trial. This case raises the interesting question of a police officer's right to stop and frisk a suspect for dangerous weapons. To what extent under the Fourth Amendment to the United States Constitution, if any, can a police officer stop, detain and frisk a defendant short of arrest?
The constitutional restrictions of the Fourth Amendment are against unreasonable searches, not against all searches. What is reasonable involves a balancing of interests between the security of public order by the solution and prevention of crimes, and a person's immunity from police interference into his privacy. The states are not precluded from developing workable rules governing searches to meet the practical demands of effective criminal investigation and law enforcement if the state does not violate the constitutional standard of what is reasonable. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Pursuant to this mandate the Supreme Court of Pennsylvania had set forth the rule that when a thorough search is made of a person or his possessions pursuant to an arrest, the arrest must have been made with probable cause that the person arrested was committing, had committed, or was about to commit a crime. Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149.
Short of arrest or probable cause to arrest, however, there is a well recognized necessity of the police to stop, question, and even detain persons pursuant to the investigation of a crime which was or was about to be committed. This necessity is clearly demonstrated by crimes of this nature which are especially difficult to solve. We take it as well settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for the purpose of limited inquiry in the course of police investigation. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F.2d 328 (9th Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278. The case of Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), cannot be read as holding that every stopping and consequent restriction of freedom of movement is an arrest. It is the business of the police to prevent crime and the prompt inquiry into suspicious or unusual street action is an indispensable police power. Police prearrest and detention is based on the reasonable suspicion that the defendant committed a crime, as distinguished from reasonable cause to believe or probable cause. It is a right recognized both at common law and under the decisional law of the various states. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966); United States v. Thomas, 250 F.Supp. 771 (S.D.N.Y.1966). In justifying the policeman's right to question and detain it is the reasonableness of the officer's suspicion that is determinative, as measured against the place, time and events of the moment. The line between what is a reasonable suspicion to justify questioning and detention short of arrest and what is illegal police action resulting in the suppression of resultant evidence is difficult to define. What is a reasonable suspicion under the circumstances and whether there was a point at which detention was tantamount to arrest must be measured in each case by the balance between individual freedom and law enforcement.
Although Pennsylvania has no statutory law authorizing a police stop, detention and frisk short of arrest, we are of the opinion that the knife was admissible in evidence although not seized in a search incident to a valid arrest. We adopt the reasoning of such cases as State v. Terry, supra; People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964), cert. denied, 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568 (1965); People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955).
The basis for a brief search or frisk of a person who has been lawfully detained for questioning short of arrest is based on the personal regard for safety of the police officer detaining the suspicious person. A search of this nature is the contact or patting down of the outer clothing by the sense of touch to detect a concealed weapon. This type of search is much less an invasion of privacy than a full search of the person would be. We adopt the language in People v. Rivera, supra, perhaps the...
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