*1 motion as well pack’s contempt, as Regan’s “counter- claim”.1 to the jurisdiction
Reversed Remanded of the lower court.
DISALLE, J., did not participate the consideration or of this decision case.
Submitted 1981. April 1982. Filed properly us, issue opinion 1. Since the is not express we no concerning procedures used in contempt this case relevant proceeding. *2 Defender, Media, Assistant for Gallagher, Public Howard appellant. Hazel, Media, District for Common- Attorney,
Frank T. wealth, appellee. BECK, JJ. HESTER, CAVANAUGH
Before HESTER, Judge: officer, Kruczaj, County police Chester
Officer via the dispatch investigate summoned radio at Widener dormitory women’s appellant entered the without au- appellant The College. not, at first, or The officer did privilege. invitation thority, serious criminal activity because no arrest Instead, the appel- he drive agreed to be afoot. seemed latter intoxi- home, appeared since the especially his lant to Before allowing no vehicle nearby. and had cated car, his Kruczaj patted to sit in patrol vial plastic disclosed small pat-down The clothing. outer result, the As a syringe. and a hypodermic containing pills violating provi- tried and convicted Device and Cos- Substance, Drug, of The Controlled sions appeal This title 780-113. Pa.Stat.Ann. § metic Act. probation. his sentence of 18 months’ from was filed not tried he was asserts, first, therefore, charges; of criminal filing days within violated. The 1100(a)(2) were of Pa.R.Crim.P. provisions the crimi- disposition free on bail pending (d)(1) for trial. Subsection appear He failed to charges. nal the 180-day excludes that time from period Rule *3 una which the defendant renders himself during calculation the excluding proceedings. By of the any stage vailable unavailable, the was during of time period rule. violation of the 180-day was no there as well. He rejected is appellant’s argument The second him in were taken from the vial and syringe that maintains Fourth of the principles the search and seizure of violation wanted to make Kruczaj Officer Conversely, Amendment. no dangerous weapons the appellant possessed that certain seat of the patrol him to enter the back permitting before car. where the of searches are permissible
Warrantless the individual’s be the nature of suspicious observes ficer bemay that the individual concludes reasonably and havior bemay carry of a crime and the commission contemplating Hicks, v. 434 Pa. weapon. Commonwealth dangerous ing behavior must However, a (1969). person’s A.2d 276 not a warrantless search than more arouse Commonwealth permitted. a lawful arrest incident to The was A.2d 342 Berrios, (1970). 437 Pa. the girl’s dormitory in the rear of Kruczaj by found Officer It is inconceiv- in a condition. College stupefied at Widener the went dormitory the to the that able visit; his was conducting gentlemanly purpose women and justifiably feared rightfully by young and Kruczaj with caution apprehension. viewed Officer by building. had cause or to be that no reason Appellant invitation at the without arriving mere act enough provided and alarming a dazed condition and activity infer that criminal reasonably cause to sufficient Moreover, prohib- we do not believe that law afoot. individual whose actions search an the warrantless its and request- short of all criminal behavior who stopped were no arrest Although in a vehicle. police transportation ed made, Kruczaj reasonably assuming acted when car with patrol well have entered appellant may weapon. deadly a concealed officers who and with support swiftly, justly must act
We law prejudice, Where an accused suffers no compassion. crime require delay pre- not an officer to effective should Furthermore, the officer’s consent to transport vention. act that compassionate home was shielded harm to punishment prevented from criminal such parties. Certainly competent supervi- innocent with encouraged be laws that assure the sion should officer. of sentence affirmed. Judgment BECK, J., dissenting files a opinion.
BECK, Judge, dissenting: *4 because the was search of appellant’s person
I dissent and violative of his Fourth Amendment illegal rights. was him as of a question in obtained from a result evidence that patted and frisk.” The officers contend “stop they a clothing outer and then searched him as appellant’s down into car. before him their precaution admitting safety that hearing, Kruczaj the testified suppression At a a that there was dispatch his received radio partner he and women’s at who College Widener man to be intoxicated. found him in what appeared They the officer termed “a him, dazed state.” They questioned found to arouse their nothing- and asked him if he had a vehicle which to return He he home. that replied owned no vehicle and a ride requested home. Before was into the permitted consent, car and without his he police was A plastic frisked. small vial a containing pills and hypoder- were mic removed from his syringe clothing. are
There two only justifications that offered may be to search sustain-a in a case of this type: (1) the search was arrest; a is, incident to lawful the that officers had probable believe that appellant cause to had was committed or about crime,* to a and (2) commit the existence specific of facts to that leading belief and danger armed ous. There was testimony suppression that hearing was searched because the officers were concerned own safety, for their that the search stan represented practice dard police giving any civilian a ride. There however, testimony, was no articulating facts a supporting belief that armed and dangerous. Commonwealth Hicks, 153, 158-159, 434 Pa. 253 A.2d (1969), the seminal case, is Pennsylvania instructive search: permissible on
First, a seizure and search ... is reasonable and legiti- ifmate the police arrest, officer has probable i.e., cause to if at the inception the seizure he has knowledge of circumstances, sufficient facts and gained through trust- information, worthy to warrant man in prudent belief the person committed, seized has is committing or is about to Second, commit crime. even if probable cause to absent, arrest officer may still seize a legitimately . . . and person conduct' limited search individual’s outer in an clothing attempt to discover weapons be used might endanger the others, the police officers and if [*] Although with the intend to do the officers appellant’s so criminal and that trespass, trespass may have had search the record indicates that onto the Widener probable not cause any College campus. way they connected arrest did not
179 conduct suspicious observes unusual and officer him which leads seized individual part on the be afoot activity criminal may to conclude that reasonably be may whom he is dealing with person and that and dangerous. armed v. (Footnote omitted.) in See Sibron original.)
(Emphasis
1889,
York,
40,
(1968);
88
In 91, A.2d Stratton, v. 231 331 Pa.Super. on Commonwealth reliance Under the Strat- (1974). misplaced. 741 That rationale, is justified only a search to weapons discover ton criminal activity concludes that reasonably if the officer and dangerous: afoot and that the armed suspect bemay to must be able articulate facts police officers [T]he and a mere that a allegation their aroused conduct is not sufficient suspect engaged “suspicious” and frisk.” “stop justify to 94-95,
Id,
Ct. at
331 A.2d
742.
Pa.Superior
231
See
Berrios,
(1970);
Pa.
Police officers case, court of their lives. In the instant working day facing the dilemma officers: whether recognizes per- and face a an intoxicated civilian transport apparently leave possibly risk or whether to him area sonal The officers mischief. could have resolved to commit frisk by asking appellant dilemma consent to limited him a ride. such They failed to ascertain giving the clear mandate of law were not consent. Under they him frisking without it. justified I reverse judgment would of sentence.