*2 VOORT, and Before VAN der WATKINS MONTGOM- ERY, JJ.
MONTGOMERY, Judge: September
On was found guilty by appeal, argued of heroin. On it is jury possession in not suppressing lower court erred the evidence seized officers at without a search warrant. facts are not in At following dispute: approximately 23, 1976, 6:20 A.M. on the four Lancaster morning April agent Police and a female narcotics arrived at the City wife, shared and by appellant his common law Rosa The officers had arrest Cruz. warrants for both. individual, were admitted to the They third Jiminez, and directed to the Raphael bedroom where Rivera awakened, and were sleeping. Cruz Once the two were placed under arrest and were permitted to dress under the dressed, observation of officers. Once were handcuffed they *3 and taken from the apartment. with Contemporaneous, appellant being apartment, escorted from the the remaining officers conducted a search of a of pile clothes the side of the bed where had been appellant sleeping. top On the of the pile Grimm, shorts and pair Sergeant in searching the pockets, found appellant’s wallet and two plastic bottles pill containing five foil twenty packets of heroin. It is this evidence which was introduced at trial and to which appellant objects.
This court is bound the findings the suppres sion court below if those findings are the supported by record. Commonwealth v. Gray, Pa.
(1977) However, . even when considering the facts and testimony below on which the lower court are findings based, in the light most favorable to the Commonwealth as winner, verdict we cannot find the warrantless search of appellant’s apartment justified as incident to his arrest.
It is axiomatic that warrantless searches per are se unreasonable subject to a few established specifically Silo, exceptions.
(1978). One such exception is the search incident to an arrest which is limited normally to the area within the which he either might the actor from
immediate control of The valuable evidence.1 destroy or seek to weapon gain search is on the such a warrantless based justification not that the circumstances and on the fact of these exigency with arrest as is relied on by search occurs the lower court. below, was not based on the officers clearly
The search or the of evidence. safety safety for their own concern after and Cruz were hand- search was conducted No apartment. exigent led from the being cuffed and to a warrantless search. justify existed circumstance of Jiminez argues presence The Commonwealth evi- because he could have justified destroyed more, is insufficient. allegation, a bare without dence. Such were who If, as there officers suggested by prosecution, secure it there is up, remained in the to and lock have been obtained to no reason a warrant could not why explana- lawful search. Also there is no allow for a full and prior as to no search warrant was obtained why tion offered since the arrest was to arrival at made there. the evidence obtained as a result foregoing, Based on the is suppressed. search of illegal of sentence is reversed and the case remand- ed for a new trial. VOORT, J., files a dissenting opinion. *4 VOORT, Judge, dissenting:
I
with the
United States
respectfully disagree
majority.
Chadwick,
1,
2476,
(1977)
433
97 S.Ct.
Thus, I would that as long hold as complained search is made of the immediate area within the arrestee’s control, and is with the is valid.
I judgment would affirm the of sentence. Pennsylvania v.
Percy FAVORS, Appellant.
Argued June Filed Dec.