*1 Appellant. Commonwealth v. Hicks, *2 J., P. Before 1966. September 13, Argued Ervin, Hoffman, Jacobs, Montgomery, Watkins, Wright, and JJ. Spaulding, him Mel- Assistant with Paclcel, Defender,
Leonard Herman Pol- I. Assistant Dildine, Defender, vin appellant. loclc,Defender, Attorney, with Michael Assistant District J. Rotho, Dis- him Assistant John J. DiPaul аnd Alan J. Davis, Attorneys, Sprague, Richard A. First Assistant trict Attorney, Specter, Attor- and Arlen District District appellee. ney, for Commonwealth, November Opinion by J., 17, 1966: Montgomery, Appellant-defendant guilty found tried and jury, the Honorable Robert W. Trembath without pos- attempted charges burglary, burglary, trial for a new session tools. His motions judgment having overruled sen- arrest of been *3 imposed charging bur- tences were on the indictments glary possessing burglary be- sentence tools with suspended attempted burglary. ing charge on the only legality actions the The before are the issues us police apprehended defendant, of the the who particularly sufficiency the and the of the evidence, ownership prove build- of thе evidence offered to the burglarized. ings alleged indictments The to have been apartments involved named tenants were the whose buildings buildings. The rather than the owners of the Waverly in Bar- Street which were identified as apart- a Commоnwealth had her witness, bara Poet, Lombard Street William and 1634 which ment, apart- Lloyd, had his another Commonwealth witness, Philadelphia. buildings being City in the both ment, scratching Poet testified that she heard Barbara neighbor’s apartment, her and found defеnd- at sound hallway, looking and that he claimed to be ant Reynolds. After R. defendant left build- one J. chips ing on the found wood floor and mold- loose she neighbor’s ing her door. locks front around The neigh- apartment building and that door of the tampered apartment appeared with. to have been bor’s in an Lloyd testified that he saw William adjoining building looking his and that for someone, apartment tampered Both with. door had fact been positive of de- in their identificatiоn witnesses were respective person they in their fendant saw as buildings. po- Closkey receiving a
Officer testified that after report lice of a at 1634 Lombard Street stopped walking street defendant whom he on the saw (five) aрartment The few blocks that house. tenants had as a described intruder to the negro with Clos- a brown coat and mustache. Officer key stopped, also testified that when defendant, light awore colored coat and needed а shave, stop purpose the reason for the investi- was gating reported burglary. stop Offi- Incident to the Closkey penknife cer frisked defendant and found a with a three inch blade. Defendant then arrested and taken to 1634 Lombard Streеt for identification, subsequently burglary charges. booked on the knife was introduced objection, as over evidence, at the trial.
We shall first consider defendant’s contention produced penknife the search which inci- was not dent to a valid arrest and should have been excluded from the evidence at the trial. This case raises *4 interesting question police right stop of a officer’s to suspect dangerous weapons. and frisk a To what extent under the Fоurth Amendment to the United any, police Constitution, States if stop, can a and frisk a detain defendant short of arrest?
The constitutional restrictions of the Fourth Amend- against are ment unreasonable against searches, not all searсhes. is reasonable balancing What involves a of security public of interests between by order
5 person’s prevention im solution of and a crimes, and. munity police privacy. from into interference his precluded developing are states not rules workable governing practical of searches to meet the demands investigation if criminal effective and law enforcement not standard state does violate the constitutional U.S, of 23, what reasоnable. Ker v. 374 California, Ct. 83 S. 10 L. to Ed. 2d Pursuant 1623, 726 Supreme Pennsylvania this mandate of had Court thorough set forth the rule that when a made search is person possessions pursuant or his arrest, an to probable the arrest must have been cause made with committing, arrested was had com or mitted, was about to Common commit crime. Negri, (1964); wealth v. 414 Pa. 198 A. 2d 21, 595 Bosurgi, Commonwealth v. 411 Pa. 304 190 A. 2d 56, (1963), cert. 11 denied, 375 Ct. U.S. 84 S. 910, 204, L. Ed. 2d 149. probable
Short arrest or cause to how- arrest, recognized necessity police thеre is well ever, of the stop, question, persons pursuant to and even detain investigation of a crime which was or about to necessity clearly be committed. This demonstrated especially crimes of this nature which are difficult tо solve. We take it well as settled that there is noth- ipso ing facto unconstitutional in the brief detention justifying citizens under circumstances not an ar- purpose inquiry for the of limited rest, in the course police investigation. Rios v. United 364 States, U.S. (1960); S. Ct. 4 L. Ed. 80 2d 1688 Busby 253, 1431, v. (9th United 296 F. 1961), States, 2d 328 Cir. cert de- 369 82 U.S. S. Ct. nied, 8 1147, L. Ed. 278. 2d Henry The case United States, U.S. 80 S. (1959), 4 Ed. 2d 168, L. Ct. cannot be read as hold- every stopping consequent ing restriction of of movement is freedom arrest. It is the business prevent prompt crime inquiry and the *5 6 suspicions indis- an action is
into or unusual street pensable police power. prearrest detention Police suspicion that the on the reasonable is based distinguished reasonable committed a crime, as recog- probable right It a or is cause to believe сause. decisional under the nized both at common law and App. Terry, Ohio law the various states. State v. 5 of (1966); v. Thom- 214 States 2d N.E. 2d 114 United 122, 1966). justifying Supp. (S.D.N.Y. In F. 771 as, 250 policeman’s right question it is and detain to suspicion deter- is of the officer’s reasonableness place, against time and events as measured minative, reasonable a of the moment. The line between what is justify suspicion questioning of and detention short police resulting illegal and what is action arrest suppression definе. resultant evidence difficult of suspicion circumstances is a reasonable under the What point was there a at which detention whether by be in each case tantamount to arrest must measured freedom en- the balance between individual and law forcement. Pennsylvania statutory
Although au has no law police thorizing stop, a detention and frisk short of ar opinion are of the that the admissi we knife was rest, although ble in evidence not seized incident seаrch adopt reasoning of to a valid arrest. We such supra; People Terry, v. 14 as State v. cases Rivera, (1964), 32 N.Y. 2d 201 N.E. 2d cert. denied. 379 441, (1965) L. 85 Ct. 13 Ed. 2d Peo ; U.S. S. 568 679, ple 45 Cal. 2d 290 P. 2d Simon, person a brief
The basis for
search or frisk
who
lawfully
questioning
detained
has been
short
ar-
personal regard
safety
rest is based
suspicious person.
detaining
A search
patting
contact or
nature
down
this
clothing
the sense
touch
outer
to detect
con-
weapon.
type
This
of search is much
in-
cealed
less privacy
vasion of
than a full search of the
*6
adopt
People
language
would he. We
the
in
Rivera,
v.
perhaps
supra,
leading
subject,
the
case on
when
this
it
right
The in evidence this case is sufficiеnt to show investigating suspect officer had reason to that de- may robbery fendant have committed the saw when he fitting approximately description the defendant, given five scene broadcast, blocks satisfy facts crime. Thesе are sufficient to suspicion” authorizing standard of “reasonable tem- investigation stop, porary and frisk. United States v. People supra; supra. v. Rivera, Thomas, sup- evidence The circumstantial was sufficient to guilty. port positively vеrdicts Defendant present being apartment in building as identified acceptable any being reason without Dam- there. apartment age locks had occurred to the within min- 45 30 minutes in case, in one utes another. cir- to only evidence convict for cumstantial need guilt beyond to show as be such reasonable doubt. 360 Wentzel, v. Pa. 61 137, Commonwealth A. 2d 309 8 A.
(1948);
31
504,
Pa.
346
v. Libonati,
Commonwealth
Su
(1943);
Pa.
v.
201
Gibson,
2d 95
Commonwealth
perior Ct.
A. 2d
193
690
573,
proof
ownership, the
question
to
As
lack
purpose
allegations
inform
to
indictments
such
particular
ishe
crime with which
an accused of the
being charged
subject
may
more
to
so
not be
prosecution
one
the same crime.
than
Seifried
(1882);
March
Pa.
Act of
200
Commonwealth,
ob-
§261. In
case no
P. L.
this
P.S.
427, §11,
jection
to
was made
the indictments
information contained
them,
went
trial
any
by doing
right
question
insuffi-
so he waived
Lingle,
Su-
120 Pa.
therein. Commonwealth v.
ciencies
perior
*7
Ct.
At trial was offered buildings an into both made entrance and that there tampering with the or had been a outer front door lock apartment with the locks an within one, building. iu What we said each Commonwealth Superior Myers, Ct. 131 Pa. 200 A. 258, 263, repeat (1938), we here: “As the evidence was sufficient attempt to break enter an show with store, specific proof ownership more intent steal, requisite Commonwealth’s not a fundamental was case.”
Judgment of sentence affirmed.
Dissenting Opinion J.: Hoffman, may agree majority officer I that a with the stop person questioning, if he for brief a on the streets “reasonably suspects” committed has that that “pat felony. may down” In addition, a danger person stopped, in from a if he believes himself deadly weapon. concealed procedures potential for abuse
However, especially approved today suggests that we should be agree circumspect reviewing I these cannot cases. suspicion satisfied that the has been test reasonable here. acting stopped,
When the defendant not was was furtively stealthily. simply wаlking on the or He was the crime. He some five blocks from the scene of street, packages bulges carrying un- no and there were no clothing. der his Closkey only been
Officer knew that a had by Negro mustache, committed the area with a wearing coat. The defendant did not a brown have wearing light-colored He was coat. In mustache. *8 correspondence only point the two de- short, scriptions Negroes. that both men were majority illegal concеdes that the line between suspicion and detention on action reasonable suspicion to define. difficult reasonable However, can- police may stop per- any that the and search not mean vicinity where a crime has been committed, son happens merely to be because there. The record nothing more. this case shows grant reverse new trial. I would