Commonwealth v. Reicherter

463 A.2d 1183, 317 Pa. Super. 256, 1983 Pa. Super. LEXIS 3684

• Court: Supreme Court of Pennsylvania
• Decided: August 5, 1983
• Docket: 859
• Status: Published

Opinions

WICKERSHAM, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County on convictions of carrying firearms on public streets or public property in Philadelphia and firearms not to be carried without a license (18 Pa.C.S. §§ 6108, 6106). We affirm. .The pertinent facts are as follows.

On December 18, 1979, appellant George Reicherter was detained by Philadelphia police officers as he was riding, in a friend’s truck, away from his residence immediately before a search of the residence by federal and city authorities was to begin. Reicherter was frisked at that time by a Philadelphia detective and a Colt pistol .was found on his person. Reicherter was charged with firearms violations; he subsequently moved to suppress the pistol,- which motion was denied. Reicherter was tried in Municipal Court and found guilty of carrying firearms on public streets or public property in Philadelphia and of firearms not to be carried without a license and fined $200 plus $50 costs. An appeal and trial de novo in the Philadelphia County Court of Common Pleas followed with the same verdicts and sentence. Post-verdict motions were filed and denied. This appeal followed.

Appellant Reicherter frames the first two issues involved as follows:

Did the Commonwealth fail to articulate a justification for the stopping and frisking of the appellant for weapons which led to the discovery of the Colt revolver?

Did the Commonwealth’s possession of a search warrant for the appellant’s residence justify his arrest and the search incident to that arrest which yielded the Colt revolver?

Brief for Appellant at 2.

Reicherter argues that the police had no probable cause to stop and search him and that the seized weapon must, therefore, be suppressed.

The Supreme Court recently held in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), that when police officers executing a valid search warrant encountered the’ owner of the premises to be searched descending the front steps outside the premises, they were justified in requiring him to re-enter the house for the duration of the search. As the Supreme Court stated: “Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded oh probable cause implicitly carries with it the limited authority to •detain the occupants of the premises while a proper search is conducted.” 452 U.S. at 705, 101 S.Ct. at 2595 (footnotes omitted).

The Supreme Court reasoned as follows:

Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’s house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Indeed, we may safely assume that most citizens—unless they intend flight to avoid arrest—would elect to remain in order to observe the search of their possessions. Furthermore, the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention.

Moreover, because the detention in this case was in respondent’s own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.

452 U.S. 701-02, 101 S.Ct. at 2593-94 (footnotes omitted).

Reicherter’s situation does not differ significantly from the situation discussed by the Supreme Court above. Although Reicherter was initially stopped by the police while several blocks from his apartment while the defendant in Michigan v. Summers, supra, was stopped on the front steps of his residence, this is not a difference such as would require a different result: in both cases some transportation of relatively short duration was required to return the defendant to the residence to be searched.

The frisk of Reicherter’s person, in the course of which the handgun that led to the instantly considered charges was discovered, was also properly conducted. Detective Chishlsom, the officer who frisked Reicherter, was aware that Reicherter’s residence was to be searched for narcotics and had previously observed Reicherter in possession of a shotgun. The Supreme Court held in Michigan v. Summers, supra, “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence____ The risk of harm to both the police and the occupants is minimized if the officers exercise unquestioned command of the situation.” 452 U.S. at 702-03. Based on the circumstances present here, the police had a reasonable belief that Reicherter was armed and their frisk of him was fully justified. In any event, as Reicherter was arrested at the time he was placed in the police car for return to his residence (Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982)), and as the arrest was proper, the search is justified as incident to lawful arrest. Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980).

Appellant Reicherter phrases his next question involved as follows:

Did the court err in allowing, over objection, the Commonwealth to prove the contents of the search warrant by the testimony of a witness, rather than by the document itself?

During the suppression hearing, the lower court allowed Detective Chishlsom to testify that the search warrant for Reicherter’s home permitted a search for narcotics and weapons. Reicherter objects that the best evidence rule is applicable here and that the warrant itself, and not mere testimony about it, should be the exclusive evidence of its contents.

Detective Chishlsom, however, referred to the existence of the search warrant only to detail his justification for frisking Reicherter. “Probable cause for a warrantless arrest must be determined on the basis of the knowledge of the arresting officer at the time of the arrest.” Commonwealth v. Riley, 284 Pa.Super. 280, 286, 425 A.2d 813, 816 (1981). The actual contents of the warrant are not the key issue here; instead it is Detective Chishlsom’s knowledge at the time of arrest that is important. We note that “the evidentiary ruling of the trial court allowing ‘secondary evidence’ should not be reversed except for a grave abuse of discretion” (Ledford v. Pittsburgh and Lake Erie Railroad, 236 Pa.Super. 65, 75, 345 A.2d 218, 224 (1975)). We find no such grave abuse here.

Reicherter states his final issue as:

Did the municipal court err in failing to grant the defendant’s petition for a de novo suppression hearing?

Reicherter argues that he should have been granted a second suppression hearing because he had not been provided with a copy of the search warrant before the hearing and was unable to point out that, contrary to Detective Chishlsom’s belief, the warrant did not mention any weapons to be searched for at Reicherter’s residence. Reicherter maintains that this fact would “have shown that the search warrant did not provide any justification for the arrest and frisk of the appellant.” Brief for Appellant at 17.

We find more than enough justification for the frisk of Reicherter quite apart from the police officer’s mistaken belief that the search warrant described weapons to be seized and, therefore, reject this argument.

Judgment of sentence affirmed.

SPAETH, J., files a concurring opinion.