421 Pa. 169 | Pa. | 1966
Lead Opinion
Opinion by
Prank Ellsworth was indicted by the grand jury of Philadelphia County for the felony murder of one Lulubel Rossman which had taken place on July 3, 1955. He was tried before a court and jury, convicted of murder of the first degree and sentenced to life imprisonment. We reversed that judgment of sentence and granted a new trial because of error on the part of the trial court in admitting into evidence certain declarations made by one Raymond Wilson, an alleged co-conspirator of Ellsworth, to a third party, in Ells-worth’s absence and against Ellsworth, after the conspiracy had terminated (Commonwealth v. Ellsworth, 409 Pa. 505, 187 A. 2d 640). Upon his second trial before a court and jury, Ellsworth was again convicted of murder in the first degree and sentenced to life imprisonment. Subsequent motions for a new trial and
“On July 4, 1955, Lulu Rossman, a 76 year old widow, was found dead in a hotel room in Philadelphia. Hér death was due to a strangulation which occurred, during the-course óf a'robbery and the time other death was fixed'-as the early evening of July 3, 1955. From, her killing • arose the events which later-culminated in the arrests and subsequent convictions at separate trials, of Raymond Wilson, R. W. Thomas, Gfus DeMoss and-Frank Ellsworth- .-. .'of murder in the first degree with the penalty fixed at life imprisonment.” : Commonwealth v. Ellsworth, 409 Pa. 505, 506, 507, supra.
"-•For the purpose of this appeal, we deem the following'récitatión óf facts' sufficient.' It was the contention of the Commonwealth- that Thomas, DeMoss, Ellsworth ■ and Wilson, knowing that Mrs. Rossman was accustomed to carry on her person or have in. her apartment large sums of money, conspired to rob her; that it was Ellsworth-and Wilson who actually robbed and killed Mrs. Rossman; that,- with the stolén money, most of which was in' new $100 bills, in their possession, Ells-worth and Wilson then flew to Las'Vegas; Nevada, via the circuitous route of Tampa, Florida, and Tulsa, Oklahoma. During the night of July.6, 1955 — three days after the alleged robbery and homicide — the activities of- Ellsworth and Wilson, then engaged in making the
At the scene of the arrests, Sergeant Dunn made an initial brief search of both suspects (Search No. 1) to determine if they were carrying any weapons. According to Sergeant Dunn, this initial search consisted only of a “patting” of the clothes of the suspects. It was not until Ellsworth and Wilson arrived at the police station — approximately two minutes after their arrest — that their pockets were searched and the contents removed (Search No. 2) : “Q. . . . Now, after you took these two men, after you told these two men they were under arrest for . . . suspicion of robberies did you say? A. Yes, sir. Q. Investigation of robberies. What did you do with them? A. Put them in the police car after I made a search for weapons, just patting them. Q. You were patting them? A. Just to feel them to see if they had any knives, guns. Q. Did they have any weapons? A. No, sir. Q. What did you do with them then? A. Took them down to the Police Department two blocks away in the police car “Q. By the time you got them to the police station what time was it? A. I would say about — it’s only about two minutes from the place of arrest. Q. It would be between 12:15 and 12:20? A. Yes. Q. And then you went through the searches? A. Yes.”
After Ellsworth and Wilson were questioned and “booked”, three Las Vegas policemen, two F.B.I. agents and three deputy sheriffs, without a warrant, searched Room 266 of tlie Dunes Hotel. This search (Search No. 3) took place at approximately 2:30 A.M., July 7, 1955, which led to the discovery — in shoes, suitcases and a sock — of $69,000 in currency of which $66,200 was in new $100 bills mostly of the “C” series. The serial numbers of the currency discovered on the persons of Ellsworth and Wilson in their hotel room were duly recorded and a list kept thereof.
Shortly after his arrest, Ellsworth requested and received permission to call a lawyer. This lawyer, by an order of court, obtained the release of both Ells-worth and Wilson on July 7, 1955, and the court further directed that the money seized from them be returned through their attorney. Approximately a week later, both Ellsworth and Wilson were rearrested. However, the money which had been with them in Las Vegas was never recovered.
On this appeal, the principal contention is that Ellsworth was denied due process of law, guaranteed him under the 14th Amendment of the TJ. S. Constitution, because the trial court at his second trial had permitted the reception into evidence of the fruits of the three searches mentioned, supra.
Consideration of Ellsworth’s argument must be made along the line of three inquiries: (1) is the Mapp rule — enunciated on June 19, 1961 — applicable to the case at bar in view of the ruling in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965) that the Mapp rule was not retroactive in its application? (2) if the Mapp rule is applicable, was Ellsworth’s arrest without a warrant a lawful arrest? (3) if the arrest was lawful, were the three subsequent searches without a warrant lawful?
The court below held that Mapp — which applied the federal rule excluding evidence seized in violation of the Fourth Amendment to the state courts — was not applicable to the case at bar, stating: “The action of the police was in accordance with constitutional principles then obtaining in 1955. The officers could not know that in 1961 [the date of Mapp], six years later the Supreme Court of the United States would pronounce that what they did was or might be considered a violation of the Constitution.” Shortly after the determination of the court below, the U. S. Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731,
Even if Mapp is applied, the seized evidence was properly admitted at trial if the three searches were lawful. The legality of the searches without warrants depends, initially, upon the validity of the arrest, itself without a warrant, and, in testing the validity of such arrest, we must apply the federal constitutional standards: Ker v. California, 374 U.S. 23, 83 S. Ct. 1623. As Mr. Justice Haslan (concurring in the result in Ker) tersely commented: “Henceforth state searches and seizures are to be judged by the same constitutional standards as apply in the federal system.” (Ker v. California, supra, 374 U.S. at 45, 83 S. Ct. at 1646). Speaking for the majority in Ker, Mr. Justice Clark set forth the federal standard which must be followed in testing the validity of an arrest without a warrant: “The lawfulness of the arrest without a warrant, in turn, must be based upon probable cause, which exists ‘where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.’ Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925) : [citing other authorities].” Ker v. California, supra, 374 U.S. at 34, 35, 83 S. Ct. at 1630, 1631.
“The quantum of information which constitutes probable cause — evidence which would ‘warrant a man
Viewing the instant record, what information, if any, did Sergeant Dunn have at the time of the arrests upon which to base a reasonable belief that Ellsworth had committed an offense? He knew that: (a) for a person in attendance at the gambling clubs in Las Vegas Ellsworth was unusually shabbily dressed; (b) Ellsworth was in possession of a sizeable number of new $100 bills which, from Dunn’s observation of him, he was obviously anxious to exchange for other money and, possibly, “clean” money; (c) Ellsworth was noticeably and visibly disturbed and upset when the Las Vegas Club cashier returned to him some of the same new $100 bills with which he had purchased chips a short time previously; (d) Ellsworth and Wilson, obviously acquainted with one another, were taking great pains to make it appear that they were not acquainted nor together in the gambling clubs;
On the basis of such information and observations one can conclude that a reasonably cautious person would have believed, as did Sergeant Dunn immediately before the arrest, that Ellsworth had participated in a robbery. Save for the tenuous connection between Ellsworth’s possession of the $100 bills and the teletype concerning the robbery of a bank in the Los Angeles area involving mostly $100 bills, Sergeant Dunn did not have reason to know which robbery or in what state the suspected robbery was. The concatenation of circumstances which unfolded in the gambling casinos considered in conjunction with that which Sergeant Dunn personally observed and that which he had been told by an F.B.I. agent, certainly a trustworthy source, furnished a basis which led Sergeant Dunn to reasonably believe that an offense had been committed and that Ellsworth had taken part in that offense.
Ellsworth’s counsel vigorously asserts that, because Sergeant Dunn had no particular crime in mind when he arrested Ellsworth for “investigation of robbery”, this Court is precluded from a finding that the arrest was made with the constitutionally required “probable cause”.
In United States v. Zimple, 318 F. 2d 676 (CA 7), cert. den’d 375 U.S. 868, 84 S. Ct. 128, an arrest, upon suspicion of burglary, which was made without a-warrant was upheld even though, at the time of the arrest, the officers were unable to connect the suspect with any particular crime. The validity of this arrest was based upon the knowledge of the officers of recent burglaries in the area and their observation of the activities of the person suspected in entering an' apartment building, staying therein for a short time, and then moving on to the next apartment building. Before deciding to place him under arrest the officers questioned the • suspect for an explanation of his behavior, but it was only after the arrest that evidence was discovered linking the suspect to a specific mail theft. The officers’ suspicion of burglary was neversubstantiated. The Court, after stating its belief that the officers had “knowledge supporting a man of reasonable caution in the belief that defendant had committed burglaries”, said (p. 679): “That this is the law is fortunate, in view of the practical consideration that officers at the scene of. arrest are required to make, an immediate, decision on the totality of the circumstances there confronting them and a failure to act and the disappearance'of the suspect before the di's-'covery of the crime would probably render the
A study of this record further leads us to the conclusion that the “patting” of Ellsworth’s clothes at the scene of the arrest (Search No. 1) and the subsequent emptying of his pockets a few minutes later at the po
The determination of the validity of the search of Ellsworth’s room No. 266 in the Dunes Hotel (Search No. 3) presents a more difficult problem. This search Was made without a warrant approximately two hours subsequent to the time when Ellsworth was taken into custody. “The search of the petitioner’s room by the police officers was conducted without a warrant of any
A search of a hotel room can fall within such an exception if it is incident to a lawful arrest (Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4), but “a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest, [citing Agnello v. United States, 269 U.S. 20, etc.]”: Stoner v. California, supra, 376 U.S. at 486, 84 S. Ct. at 891.
The search of Ellsworth’s room in the Dunes Hotel was neither contemporaneous in time — being two hours after Ellsworth had been taken into custody — nor sufficiently adjacent to the scene of arrest — the arrest was made outside the Las Yegas Club and the jail where Ellsworth was immediately taken was eight miles from the Dunes Hotel.
The Commonwealth urges that the legality of Search No. 3 should be judged by the reasonableness of the search in the light of all the particular “facts and circumstances — the total atmosphere of the case.”, relying on United States v. Rabinowitz, 339 U.S. 56, 66, 70 S. Ct. 430, 435. The Commonwealth argues that one of the most convincing circumstances was that the security officer of the Dunes Hotel had given permission and consent to the officers to search Ellsworth’s room; While we agree that Rabinowitz, supra, does set forth the general guide lines to test the validity of a search without a warrant, yet we believe that, in situations which involve searches of a house, an apartment or a hotel room, there is a special and more exacting standard of what is reasonable. See: Agnello v. United States, supra, at pp. 32, 33, 46 S. Ct. at pp. 6, 7; Arwine v. Bannan, 346 F. 2d 458, 469, 470 (C.A. 6). It was the heavy burden of the Commonwealth to establish the reasonableness of the search of this hotel room. This burden the Commonwealth did not sustain by reliance upon the permission and consent given by the hotel security officer for a search of this room. It is well settled that, “in the absence of abandonment,
There is one other ground upon which the validity of Search No. 3 might be sustainable. In United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95, the Court gave recognition to ■ such ground when it said: “The Fourth Amendment prohibits unreasonable searches' and unreasonable seizures, and its protection extends to both ‘houses’ and ‘effects’. . . . Only where incident to a valid arrest, United States v. Rabinowitz [supra], or in ‘exceptional circumstances’, Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436, may an exemption' lie, and then the burden is oh those seeking the exemption to show the need for it, McDonald v. United States, 1948, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 1531”’' However, the factual situation here negates the existence of any such “exceptional circumstances”. No moving vehicle was involved. The officers could have prevented the escape of other possible conspirators or the removal of contraband by guarding the hotel room while a search warrant was being procured: United States v. Jeffers, 342 U.S. at 52. Search Ño. 3- cannot be legally sustained:
However, in the instant case, a different rule applies to the admissibility of the fruits of the crime discovered by a co-conspirator’s action after the termination of the conspiracy: “While the general rule is that the acts and declarations of co-conspirators after the end of the conspiracy are inadmissible, it may always be shown that such other eo-conspirators were in possession of the fruits of the crime. . . . The evidence shows that the four were in a conspiracy to rob the bank in question and acted together in robbing it. Where this fact has been proved, it is always admissible to introduce facts, the purpose of which is to trace the stolen property and show the guilt of a co-conspirator, and such testimony is not open to the objection that it is hearsay acts <md declarations in accused’s absence after the termination of the conspiracy Ford v. State, 110 Texas Crim. R. 484, 488, 9 S.W. 2d 344, 345 (1928). (Emphasis supplied). See also: Wharton’s Criminal Evidence (12th ed.), §429, p. 204.
We conclude that, although the general rule is that declarations of conspirators after the termination of the conspiracy are inadmissible against co-conspirators (Commonwealth v. Ellsworth, 409 Pa. 505), evidence may be admitted, even after the end of the conspiracy, to show that such conspirators were in possession of the fruits of the crime.
In view of the illegality of Search No. 3 and that evidence obtained through this illegal search was erroneously received in evidence, we have no recourse other than to grant a new trial.
Judgment reversed and new trial granted.
Judgment's' of sentence against Ellsworth’s three alleged co-conspirators were affirmed on appeal to this Court: Commonwealth v. Wilson, 394 Pa. 588, 148 A. 2d 234, cert. den. 361 U.S. 844, 80. S. Ct. 97; Commonwealth v. DeMoss, 401 Pa. 395, 165 A. 2d 14, cert. den. 365 U.S. 822, 81 S. Ct. 708; Commonwealth v. Thomas, 410 Pa. 160, 189 A. 2d 255, cert. den. 375 U.S. 856, 84 S. Ct. 118. The entire, ¡factual background of this homicide is described at length in Commonwealth v. Wilson, supra, and Commonwealth v. DeMoss, supra.
The following events are not disputed by defendant.
In the Las Vegas gambling casinos, the money which is taken by the cashier for the purpose of chips is kept separate and apart from the money which is returned to the gambler when his chips are cashed in. In this manner, a person could dispose of counterfeit or traceable currency in return for “clean” or untainted money.
$106 bills in Ü.S. currency of “C” series (i.e., C-00323537A) had been issued in May, 1955, by the Federal Reserve Bank of Philadelphia. For a complete background of the significance and importance of the serial numbers in the investigation of this homicide, see: Commonwealth v. Wilson, 394 Pa. 588, 595, 596, supra.
Both arrests were made without a warrant.
The alleged fruits of the “poisonous tree” were the serial numbers of the currency found on Ellsworth’s person and in the hotel room.
The Linlcletter opinion was handed down on June 7, 1965.
Dunn had been informed by F.B.I. agent Wheeler of such activities prior to making the arrest.
It was later discovered that F.B.I. agent, Wheeler, had been correct in his recognition of Ellsworth’s face from an F.B.I. “wanted flyer”, a flyer which had been cancelled shortly before July 7, 1955, by reason of Ellsworth’s arrest on a burglary charge in Memphis, Tennessee. On July 7, 1955, Ellsworth was free on bail having posted $35,000 by way of an appeal bond following his conviction in Memphis, Tenn.
Ellsworth’s attorney asked Sergeant Dunn the following questions: “Q. In the teletype recordings of robberies that you had seen did you see anything in particular that related to this defendant, Mr. Ellsworth, or to the bills that he had with him, or anything else about his appearance or conduct or dress that made you connect him with that particular crime? A. In one of the teletypes I remember there was a large amount of hundred-dollar bills taken from a bank. Q. And do you remember what bank it was? A, I believe a bank in the Los Angeles area. Q. And are you fairly certain that you saw such a teletype? A. Yes, sir. Q. Shortly before you placed this defendant under arrest? A. Yes, sir.”
The instant record gives no indication that Sergeant Dunn specifically arrested Ellsworth because of the teletype concerning
Ellsworth understandably does not question the legality of Search No. 1 because it occurred almost simultaneously with the arrest and was merely a preliminary cheek for weapons on Ells-worth’s person.
“Although some members of this Court [the U. S. Supreme Court] have expressed the view that the statement'in Agnello defining the permissible bounds of a search incident to arrest went too far, . . . the Agnello holding as to what may not be searched— a house substantially removed geographically from the place of arrest at a time not substantially contemporaneous with the arrest— has never been questioned in this ‘ Court.”: Stoner v. California, supra, 376 U.S.-at 487, n. 5, 84 S. Ct. at 892, n. 5.
“Frank Agnello’s 'house was several blocks distant from Alba’s house, where the arrest' was made; When it was entered' and searched [the same day], the conspiracy was ended and the. .defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests, [citing cases 1.’’ Agnello v. United States, supra, 269 U.S. at 31, 46 S. Ct. at 5.
For a recent example of abandonment justifying a search without a warrant, see Commonwealth v. Coyle, 415 Pa. 379, 396, 397, 203 A. 2d 782.
is We -see no reason to Aiteat-'OmCa'. different basis Hie' consent of a , het^l proprietor and the consent', Pf a hotel’s security officer' who .claimed to have legal authority to grant such consent.. In both instances, hotel officials are permitting^ under the cploy of authority, that which they have no legal right' to permit.
Concurrence Opinion
Concurring Opinion by
I find it unnecessary to consider the lawfulness of appellant’s arrest and the searches of his person which followed thereafter. In my view, it is sufficient for the purposes of the present appeal that the subsequent entry by the police into appellant’s hotel room without warrant was in violation of his constitutionally protected right against unreasonable police invasions and renders inadmissible any evidence obtained thereby. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961); see Ker v. California, 374 U.S. 23, 83 S. Ct. 1623 (1963); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963); cf. Stoner v. State of California, 376 U.S. 483, 84 S. Ct. 889 (1964); Preston v. United States, 376 U.S. 364, 84 S. Ct. 881 (1964); United States ex rel. Clark v. Maroney, 339 F. 2d 710 (3d Cir. 1965). Since
