# Commonwealth v. Ruckinger > Superior Court of Pennsylvania · March 29, 1976 · 239 Pa. Super. 520 URL: https://www.frixlaw.com/law-library/cases/9649854 ## Case - **Full name:** Commonwealth v. Ruckinger, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** March 29, 1976 - **Citations:** 239 Pa. Super. 520; 362 A.2d 317; 1976 Pa. Super. LEXIS 2117 - **Precedential status:** Published - **Opinion:** Dissent by Price - **Judges:** Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649854 ## Opinion text Dissenting Opinion by Price, J.: In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court of the United States defined and articulated the principles to be applied where the issue is whether statements and other evidence obtained after an illegal arrest or search should be excluded. The fact situation there presented and the differences in the circumstances of Toy’s declarations versus Wong Sun’s declarations have become classic. Unfortunately, even though there defined and articulated, Wong Sun has not removed the area of dispute and disagreement in the application of those principles. Indeed, the case of Brown v. Illinois, 422 U.S. 590 (1975), quoted extensively by the majority, is just another illustration of the difficulty in the application of those principles in this area of our law, and while some light is shed upon our problem as posed in this appeal, the answer, to me, is not so clear as may be suggested by the majority opinion. While the majority discusses Brown, supra, at length, it seems to me that in spite of this discussion in point of fact the majority adopts the “but for” test. Mr. Justice Blackmun, speaking for the majority in Brown , said: “While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule.” 422 U.S. at 603 . *532 Mr. Justice Powell, joined by Mr. Justice Rehnquist, in his concurring opinion sets forth the extremes of the rule of exclusion and then makes this observation: “Between these extremes lies a wide range of situations that defy ready categorization, and I will not attempt to embellish on the factors set forth in the Court’s opinion other than to emphasize that the Wong Sun inquiry always should be conducted with the deterrent purpose of the Fourth Amendment exclusionary rule sharply in focus. See A.L.I. Model Code of Pre-Arraignment Procedure, Art. 150, p. 54 et seq. and Commentary thereon, p. 375 et seq. (Prop. Off. Draft 1975). And, in view of the inevitably fact-specific nature of the inquiry, we must place primary reliance on the ‘learning, good sense, fairness, and courage’ of judges who must make the determination in the first instance. Nardone v. United States, 308 U.S. 338, 342 (1939). See ante, at 604 n.10.” 422 U.S. at 612 . In reviewing this case it appears to me that the facts presented and discussed by the lower court place it in that wide range of situations that “defy ready categorization” discussed by Mr. Justice Powell and it is here that my assessment differs from that of the majority and hence this dissent. There can be, and is, no argument advanced concerning this arrest. It was unlawful and was clearly, and properly, held to be so by the lower court. However, it should be noted that all illegal arrests are not per se flagrant abuses of police initiative. The lower court judge observed and found that the information at issue, that is, the content of appellant’s call to his father, was publicly conveyed and open to public hearing. The officer overhearing the information did not engage in any undercover or underhanded conduct in overhearing the conversation. There was nothing illegal about the method employed, such as electronic eavesdropping, to hear this conversation. The appellant made no objection. The information came to the officer through normal observation and hearing. The majority notes that it is more *533 likely that the officer purposely listened to the telephone conversation and rejects the argument that the officer incidentally overheard it. Albeit an illegal arrest, appellant was in custody and the officer was present; therefore, whether the officer purposely or incidentally overheard does not, to me, help in the placing of this case in any clearer posture. I am much more impressed with the lower court’s finding that the officer’s conduct was not truly intrusive and that the information came to him through normal observation and hearing. Also, the lower court found that the information was voluntarily revealed. It seems also that there are elements to the arrest itself that, while still illegal, offer extenuating circumstances that justify the conclusion that this case is in that category of cases where there was some indicia of probable cause and that the arrest was not effectuated as a pretext for collateral purposes. First, the Lock Haven police in Clinton County were certainly not seeking appellant for the Mason burglaries in Blair County, and it is doubtful that they were even aware of the crime on which appellant now stands convicted at the time of the arrest. It is therefore clear to me that the arrest was not an official subterfuge to the seeking of evidence as to this crime. The argument, of course, is double-edged, and the other side may well be that, absent specific probable cause, the arrest must be the proverbial fishing expedition. The answer to that lies in the consideration of the situation, accurately detailed by the majority, surrounding the arrest. The time was 12:50 a.m. in a commercial area of Lock Haven. Appellant was in an automobile traveling at a slow rate of speed. While Lock Haven is a fine community, its downtown area, unlike Philadelphia and other larger cities, does not bustle and hustle at that hour of the morning. The operation of this car came, rightfully so, under the watchful eye of an alert Lock Haven policeman. Further erratic action by the stopping, *534 parking and vacating of the car in this area of the city prompted this officer to check further and search the area for the occupants of the car. He came upon appellant who cooperated fully with the officer. 1 Immediately thereafter, the officer received information about a second man in the area who had been apprehended with a firearm, and knowing that there had been others in the car with appellant, placed appellant in custody. This is not, to my view, the type of police conduct that can be characterized as a flagrantly abusive violation of Fourth Amendment rights and thus does not call into use the deterrent purpose of the exclusionary rule. The police action was not “willful” nor “negligent” as I would apply those terms. In high crime areas of our larger cities we have approved police action that has less supportive facts than those we now face. To condemn this police conduct in a low crime area of a smaller town where presence in a relatively deserted commercial area of the city can raise even graver doubts in the minds of those charged with society’s protection does violence to the spirit and concept of Wong Sun and Brown . Appellant’s telephone call was sufficient attenuating occurrence to dissipate the taint and I would, therefore, affirm the judgment of sentence. Watkins, P.J., and Van der Voort, J., join in this dissenting opinion. . Indeed appellant cooperated fully throughout the period of the illegal arrest. Although he stoutly denied any wrongdoing, this attitude was maintained throughout the hour or so of his interrogation, and is reflected in the openness of his telephone call. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649854. Public record. Not legal advice.