Commonwealth v. Geiger

227 A.2d 920, 209 Pa. Super. 369, 1967 Pa. Super. LEXIS 1237

• Court: Superior Court of Pennsylvania
• Decided: March 23, 1967
• Docket: Appeal, No. 154
• Status: Published

Opinions

Opinion by

Wright, J.,

On April 1, 1963, before a justice of the peace in Bucks County, a complaint was filed by a representative of the Narcotics Division of the Pennsylvania Department of Health charging that Frederick William Geiger unlawfully possessed dangerous drugs in violation of Section 4(q) of The Drug, Device and Cosmetic Act of September 26, 1981, P. L. 1664, 35 P.S. 780-4 (q). Following a hearing on June 21, 1963, Geiger was held under bail for action by the grand jury. On July 2, 1963, he filed in the court of quarter sessions a petition to suppress certain evidence which he alleged had been improperly seized as the result of an unlawful search of his person. After hearing testimony, the court below, on December 30, 1965, granted Geiger’s petition and ordered that the evidence in question should not be used. The Commonwealth has appealed.¹

The search and seizure here under consideration occurred following Geiger’s arrest for the unlawful possession of narcotics. The court below concluded “that probable cause for the arrest of the defendant has not been established”. It is the theory of the Commonwealth to the contrary that Geiger’s arrest was based on probable cause, and that the seizure of the evidence in question was valid as an incident to the lawful arrest. The controlling issue before us therefore is whether the arresting officers had probable cause to make the arrest. Our review of the record, hereinafter summarized, leads us to conclude that there was probable cause for the arrest, wherefore the order of the court below will be reversed.

On February 1, 1963, William D. Brooke, Chief of Police of New Hope Borough, received a letter from a District Supervisor of the Bureau of Narcotics of the United States Treasury Department naming Frederick W. Geiger as a suspected user of narcotics. Chief Brooke contacted Renato Della Porta, Assistant State Supervisor of the Narcotics Division of the Pennsylvania Department of Health. A check was made of drugstores in the area for the reason that, as Della Porta testified, “we have learned over the years that people who use narcotic drugs will resort to the use of exempt narcotic preparations when they are filling in between. They will use things such as paregoric, such as elixir terpin hydrate and other exempt narcotic preparations”. This check revealed that Geiger had purchased quantities of paregoric, and elixir terpin hydrate with codeine.

On or about March 20, 1963, Della Porta received word from an informant that Geiger was going to New York to pick up narcotics, and that he had left his motor vehicle at the home of Joseph J. Paulovic. This informant had been previously established as a reliable source.² The Paulovic home was then placed under surveillance. The Geiger car was parked there. On April 1, 1963, Della Porta received word from the informant that Geiger would return from New York that evening. A warrant was obtained to search the Paulovic residence in the event that Geiger would attempt to dispose of the drugs in the house. As the officers approached the Paulovic home, they observed Geiger sitting on a chair in the living room. The officers then entered, read the search warrant and placed Geiger under arrest for possession of narcotic drugs. Geiger was taken to the Solebury Township Building where a request was made that he empty his pockets. The contents of the pockets included barbiturate tranquilizer pills and a partially filled bottle of chloral hydrate. Both are dangerous drugs within the meaning of the statute.

Police officers may make an arrest without a warrant where there is probable cause to believe that the person arrested has committed a felony: Commonwealth v. Richards, 198 Pa. Superior Ct. 39, 182 A. 2d 291. Probable cause exists where the facts and circumstances within the knowledge of the arresting officer and of which he 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; moreover, the quantity of information which constitutes probable cause must be measured by the facts of the particular case: Commonwealth v. Ellsworth, 421 Pa. 169, 218 A. 2d 249. A search which is incident to a lawful arrest is valid if reasonable even though conducted without a search warrant, and the governing criterion is the total atmosphere of the case: Commonwealth v. Harris, 209 Pa. Superior Ct. 27, 223 A. 2d 881. Briefly stated, and as previously indicated, it is our conclusion that the officers acted reasonably under the totality of the facts in the instant case.

The lower court suggested that the arresting officers did not genuinely believe that they had probable cause for the arrest. We do not so interpret the record. The lower court also expressed doubt as to when the arrest took place, as well as uncertainty whether Geiger was advised that he was being arrested for possession of narcotics. We have no difficulty with this aspect of the case. Della Porta testified unequivocally that, after reading the search warrant in the Paulovic home, he placed Geiger under arrest for the possession of narcotic drugs. The fact that Geiger was arrested on that charge was confirmed by a visitor in the home, by Chief Brooke, by Joseph J. Paulovic, his wife and his son. Geiger himself testified that “Della Porta led me out by the arm”. An arrest may be accomplished by any act which indicates an intention to take the person into custody: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304.

The order of the court below is reversed with a procedendo.

1 The Commonwealth has the right to appeal from a pretrial order suppressing evidence where it appears that it will be substantially handicapped in the prosecution of the case: Commonwealth v. Fisher, 422 Pa. 134, 221 A. 2d 115.

2 The reliability of this informant was confirmed by the developments in the instant case.