APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, D.C. Crim. No. 75-320.
Seitz, Chief Judge, Hunter, and Garth, Circuit Judges. Seitz, Chief Judge, dissenting.
This appeal requires us to determine whether the District Court erred in refusing to suppress certain evidence admitted at the appellant Embry's trial. Our determination depends upon the lawfulness of the police pursuit of Embry, and Embry's arrest and subsequent "search" after he fled from the presence of the police who were conducting a street frisk (of another person). We agree with the District Court that, under the stipulated facts, the evidence (heroin) was properly admitted at trial.
All of the facts on which Embry was convicted and which give rise to this appeal were stipulated by Embry, his counsel and the government.*fn1 The stipulation, in pertinent part, follows:
2. If called to testify, Inspector William A. Moore, Officer in Charge of the Number Two Precinct for the City of Pittsburgh Police Department, would testify:
(a) That on Wednesday, October 1, 1975, at approximately 8:30 A.M. he received a telephone call from a personal friend who was the principle (sic) of a local elementary school. That during the course of this telephone call he was advised that a large crowd was gathered in the area of Jerry's Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania, and the school children were having difficulty getting to the elementary school. That pursuant to this telephone call he personally ordered police vehicles to disperse a crowd in the area of Jerry's Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania. That this area is known to him, based on his experience as a police officer, to be a high crime area.
3. If called to testify, Sergeant Harry Miller, Pittsburgh Police Department, Pittsburgh, Pennsylvania, would testify that:
(a) On Wednesday, October 1, 1975, at approximately 8:30 A.M. he was on duty with Officer James Diskin. That while in a police vehicle, he and Officer Diskin responded to a police dispatch instructing them to disperse a crowd at Jerry's Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania. That at approximately 8:40 A.M. he and Officer Diskin arrived at the locale and observed three males crossing Centre and two males remaining outside the Bar.
(b) That at approximately 8:45 A.M. he exited the vehicle to question one of the two male adults, who he believed to be George Brooks, a robbery suspect. That he grabbed the individual he believed to be Brooks and said loudly "Lets see what you have". That he began to "pat down" of Brooks' person. That immediately the other male began to run from the scene. The other male was later identified as the defendant Terry L. Embry.
(c) That he, assisted by Officer Diskin, immediately pursued the defendant Embry on foot. That he chased Embry to a vacant lot at the rear of 86 Arthur Street, a total distance of several city blocks. That as he chased Embry into the aforementioned vacant lot he observed Embry bring his right hand toward a jacket that he was wearing, and throw with his right hand what appeared to be a rolled shaped ball of aluminum foil to the ground. That he observed the defendant Embry after discarding the aforedescribed object fall to the ground in heavy weeds and attempt to hide from he and Officer Diskin and that he went to retrieve the package while Officer Diskin handcuffed the defendant and he retrieved the object he had observed the defendant Embry had thrown to the ground and discovered that it was a plastic bag containing a large number of silver foil packets of suspected heroin. That he and Officer Diskin at approximately 8:50 A.M. arrested the defendant Embry. That he retrieved the plastic bag containing the silver foil packets of heroin approximately four feet from where the defendant Embry was hiding and apprehended. That he observed no other individuals in the location of defendant Embry's arrest and seizure of the heroin. That the weather was clear during the early morning of October 1, 1975.
(d) That he, assisted by Officer Diskin, searched the defendant Embry incident to the arrest and found on his person, $160.00 in United States Federal Reserve Notes, most of it gathered in $22.00 folds. That he maintained custody of the evidence and assisted by Officer Diskin transported Embry to the Number Two Pittsburgh Police Precinct.
(e) That he, while at the Number Two Police Station, processed the evidence, witnessed by Officer Diskin. That he determined that the plastic bag contained 92 approximately 1/4 inch by 1 1/2 inches square packets of heroin, a brown speckled powder. That he then placed and sealed the plastic bag of the 92 "half spoonful" quantity of heroin inside a Pittsburgh Police envelope and identified it according to normal police procedures. That he maintained the $160.00 as evidence according to usual police procedures. That he surrendered custody of the evidence to Officer Diskin for the purpose of transporting the evidence to the Pittsburgh and Allegheny County Crime Laboratory.
(f) That based on his experience as a police officer in the City of Pittsburgh and on October 1, 1975, the going street price for a packet or "half spoon" of heroin was twenty-two to twenty-seven dollars. That based on his experience as a police officer in the City of Pittsburgh and on October 1, 1975, the aforementioned 92 "half spoons" of heroin was packaged in the manner commonly utilized in the illegal street distribution of drugs.
Although Embry had been apprehended by the Pittsburgh (City) police and had initially been charged with a narcotics violation by the Commonwealth, that charge was dismissed and Embry was never prosecuted by the Commonwealth for other than the summary offense of traffic obstruction.*fn2 The dismissal of the Commonwealth charges occurred after Embry had been indicted on October 9, 1975 by a federal grand jury for possessing "with intent to distribute approximately 27.051 grams of heroin in violation of § 841(a)(1) of Title 21, U.S. Code." Thereafter, Embry moved before the District Court for the Western District of Pennsylvania to suppress "The items confiscated and set forth in the Criminal Complaint "*fn2a (sic) (emphasis added), charging that those items had been confiscated without a valid search warrant, that they were not in possession of the defendant, and that they were seized pursuant to an illegal arrest.
After a hearing, the District Court Judge denied Embry's motion to suppress the heroin which had been seized by the police. A memorandum opinion was filed. In that memorandum, the District Court properly held that the federal court was not bound by the Pennsylvania Supreme Court decision in Commonwealth of Pennsylvania v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). The District Court also held that the heroin, having been discarded by Embry, was in "plain view" and was therefore subject to seizure by the police.
Embry, relying principally on Commonwealth v. Jeffries, supra, argues that "under all the circumstances known to the police officers at the time appellant began to flee from the scene, the police officers lacked sufficient justification, under prevailing constitutional standards, to pursue and undertake a search of appellant." (Appellant's Brief page 7).
Essentially Embry contends that the initial pursuit was unlawful and that, therefore, every action that followed (arrest, "search," seizure of heroin) ...