Commonwealth v. Pinney
Commonwealth v. Pinney
Opinion of the Court
Opinion by
On December 9, 1971, a Pennsylvania State Policeman was murdered and two Altoona police officers were wounded. On the morning of the following day, a bus driver phoned the Pennsylvania State Police with the information that three men who matched the description of the murderers were riding his bus bound for Monroe-ville from Indiana, Pennsylvania. Three police officers in plain clothes boarded the bus in Monroeville and spotted appellant and two other men sitting toward the rear of the bus. The officers had descriptions of two of the men. Observing that appellant and one of the other two matched the descriptions of the men wanted for the shootings, the police officers got behind the suspects, identified themselves as police officers, and conducted a search for weapons. A pat-down of appellant disclosed a packet which contained 21.0 grams of marijuana and 571 diamphetamine tablets. None of the three men on the bus was involved in the crimes committed in Altoona. Appellant was tried on December 14, 1972, by a judge sitting without a jury, was found guilty of possession of narcotic and dangerous drugs, and was sentenced to one year on probation and to pay costs.
Appellant raises but one argument in his appeal: that the search of appellant’s person without a search
In the case before us one of the arresting officers was asked at trial whether on boarding the bus he made any attempt to observe if the three men fit the description of the men who had shot the police officers, and the officer replied “Yes, and they certainly did in my opinion.” The officer testified that appellant was the first person he observed upon boarding the bus, and that appellant matched the description of one of the murderers: white male, age 18 to 20, five feet ten inches tall, thin build, long blond hair. The defendant took the stand and testified that he was 19 years old at the time of the arrest, five feet seven inches tall, and had always had brown hair. (One police officer observed from the stand that appellant’s hair was light brown — “Some people would call it blond . . . the front wave it could be called blond.”) Considering the circumstances — the reasonable belief that appellant was one of the men wanted for the shootings, and the necessity of exercising the utmost caution in apprehending the three men — we find that the police had probable cause to arrest appellant and to conduct a search of his person. The discovery of the drugs in appellant’s jacket pocket was pursuant to a valid search, and the lower court therefore properly admitted the drugs into evidence.
Jacobs, Cercone, and Spaeth, JJ., concur in the result.
Dissenting Opinion
Dissenting Opinion by
Appellant contends that his conviction for possession of narcotics and dangerous drugs should be reversed because the contraband introduced into evidence was the product of an unlawful search. The Commonwealth contends that the evidence was seized pursuant to a protective search for weapons during an investigation of an entirely unrelated crime.
On December 9, 1971, a Pennsylvania State policeman was murdered and two Altoona police officers were wounded. The descriptions and names of the two suspects were broadcast. On December 10, a bus driver noticed three men boarding his bus in Altoona, two of whom he believed matched the broadcast descriptions. He telephoned the State Police.
On instructions from State Police headquarters, two State Police officers in plain clothes joined a Monroeville police officer at the Monroeville bus depot, pretended to be passengers, and boarded the bus at approximately 11:15 a.m. All of the officers had “complete” descriptions of the two suspects. One suspect (Suspect No. 1) was described as a white male, twenty years old, five feet eight or five feet nine inches in height, slender build, one hundred fifty pounds, with long, black shaggy hair, and named Mark “Stoney” Geddis. The second suspect (Suspect No. 2) was described as a white male, five feet eleven inches in height, one hundred eighty pounds, with neat long, thin hair and sideburns dyed black or blond, and believed to be Charles Eugene “Crazy” Koons. Suspect No. 2 also had a mark on the left side of his nose.
On December 14, 1972, appellant waived his right to jury trial, and motions to suppress were heard in a proceeding consolidated with this trial. Officer Michaels testified that he immediately identified appellant as Shspect No. 1 and carefully described a “Charles ‘JDrazy’ Knisely” as a white male, eighteen to twenty years of age, five foot ten, thin build, with long blond hair. When pressed on cross-examination, he conceded that Suspect No. 1 and appellant had different hair coloration. He explained this discrepancy by saying that the bus was dark.
Officer Squiller testified to substantially the same series of events. He stated that he could not make an identification based on height or weight, but rather stated that his identification rested primarily on the hair length and color. Officer Squiller said that he believed appellant most resembled Suspect No. 2. On questioning by the court, Squiller stated that even after the contraband was removed from the pockets of appellant he could not tell what it was. Additionally, Squiller testified that the lighting in the bus was adequate.
Appellant testified that the officers conducted a complete body search, not a pat-down. He testified that while he was reaching for his identification the officers searched through his coat, which he was not wearing at the time. He further testified that he was five feet seven inches tall, that he had brown hair, and that he was nineteen years old at the time of his arrest. This description is corroborated by the information taken when appellant was booked. In addition, the booking sheet stated that appellant weighed one hundred fifty pounds, wore glasses and had no identifying marks.
The Commonwealth attempts to justify the search in the instant case as a precautionary search for weapons. Terry v. Ohio, 392 U.S. 1 (1968), provides that if a police officer accosts a person on the street and restrains him of his freedom to walk away, he has “seized” that person, and if he merely explores just the outer surface of such a person’s clothing, that is a “search”, and such a search and seizure are within the purview and protection of the Fourth Amendment. “[I]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. . . . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry, supra at 19-22 (citations omitted). We must determine whether there was a reasonable basis for believing the person stopped was involved in criminal activity and whether there was a reasonable basis for believing the person stopped was dangerous.
In Commonwealth v. Berrios, 437 Pa. 338, 263 A. 2d 342 (1970), the Pennsylvania Supreme Court reversed Berrios’ conviction for carrying a concealed deadly weapon because the stop and frisk of Berrios was deemed unlawful. In Berrios, the appellant was stopped twenty minutes after a reported shooting. Berrios and a companion were walking about three blocks away from the
In Commonwealth v. Hicks, 434 Pa. 153, 157, 253 A. 2d 276 (1969), our Supreme Court held a precautionary weapons search to be unwarranted where police stopped and patted-down a burglary suspect whose only resemblance to the person sought was that he was a Negro of approximately the same age. The Court stated that specific conduct of the seized person must be observed by the police, which would justify and make reasonable a belief that the suspect presented a danger to the officers or to others nearby. 434 Pa. at 160.
In the instant case, the officers do not point to any specific suspicious conduct on the part of the appellant. The only justification for the search of the appellant offered by the officers was his alleged resemblance to one of two suspects in a police murder committed the day before. In examining the contradictory testimony of the officers, I observe the following. Officer Michaels believed he was dealing with Suspect No. 1, a man described as white, twenty years old, five feet eight or nine, slender build, one hundred fifty pounds, with long, black shaggy hair, and named Mark “Stoney” Geddis. Officer Squiller believed appellant most resembled Suspect No.
Appellant did not act in a suspicious or threatening fashion; quite the opposite, it is clear that appellant complied with the officers’ request to produce identification. The identification he produced did not suggest that he was one of the persons being sought; it further negated reasonable suspicion. I note that the officers did not testify that they approached appellant with weapons drawn; rather, they say that they first asked appellant to reach into his pockets to produce identification, and then asked him to empty his pockets. These facts suggest that the officers were not fearful that the bulges which they felt were weapons. The record is devoid of facts which would support the officers’ belief that appellant was linked in any way with the crime for which he was initially stopped. It is equally devoid of facts which would support a reasonable belief that appellant was armed and dangerous — or for that matter, that the officers were even motivated at the time by considerations of personal safety. If the resemblance between the suspects and appellant was insufficient in Hicks and Berrios to warrant precautionary weapons searches, then certainly the scant resemblance here must warrant the same result. See
I would therefore reverse the judgment of the lower court and remand for a new trial.
. The description of the suspects given at the preliminary-hearing by the two officers differed in several respects from these
. It should be noted that Officer Michaels was confusing the descriptions of the two suspects. Suspect No. 1 was believed to have shaggy black hair. Suspect No. 2 was believed to have blond or black hair.
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