Petition — Pennsylvania v. Mimms
Supreme Court brief1977
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Supreme Court, U. Se
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IN THE | MICHAEL RODAK, JR. CLERK
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 197_
nw. £ZO7~ 1830
COMMONWEALTH OF PENNSYLVANIA,
PETITIONER
V
HARRY MIMMS,
RESPONDENT
PETITION FOR WRIT OF CERTIORARI
T0
THE SUPREME COURT OF PENNSYLVANIA
GAELE McLAUGHLIN BARTHOLD
AssISTANT District ATTORNEY
MARK SENDROW
CHIEF, Motions Division
STEVEN H. GOLDBLATT
Deputy District ATTORNEY FOR LAW
F, EMMETT FITZPATRICK
District ATTORNEY
240 Centre Sauare WEST
PHILADELPHIA, PENNSYLVANIA 19192
INDEX
OPINIONS BELOW
JURISDICTION
QUESTION PRESENTED
CONSTITUTIONAL PrRoviSIONS INVOLVED
STATUTORY PRovISION INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT
THE PENNSYLVANIA Supreme CourT’S RULING,
THAT_POLICE OFFICERS ARE PROHIBITED BY
THE FOURTH AND FOURTEENTH AMENDMENTS FROM
ORDERING MOTORISTS OUT OF THEIR CARS AFTER
A STOP FOR A TRAFFIC VIOLATION, UNJUSTI-
FIABLY DISREGARDS THE CLEAR NEED FOR POLICE
OFFICERS TO TAKE REASONABLE AND MINIMAL
PRECAUTIONS FOR THEIR OWN SAFETY. IN
VIEW OF THE DE MINIMUS NATURE OF THE
INTRUSION ON A CITIZEN'S FREEDOM OF MOVEMENT,
THE COURT INCORRECTLY WEIGHED THE PUBLIC
AND PRIVATE INTERESTS INVOLVED AND CREATED
AN UNREASONABLE RESTRICTION ON POLICE
WHICH NEEDLESSLY INCREASES THEIR RISK
OF DEATH OR SERIOUS INJURY.
CONCLUSION
APPENDICES TO THE BRIEF
Appenpix A: OPINION OF SuPREME CouRT OF
PENNSYLVANIA
Appenpix B: ORDER OF THE SuPREME CouRT OF
PENNSYLVANIA DENYING PETITION FOR
REARGUMENT
Appenpix C: Opinion oF SuPERIOR CourRT OF
PENNSYLVANIA
Appenpix D: RELEVANT PHILADELPHIA PoLIce
DEPARTMENT STATISTICS
12
la
10a
lla
18a
TABLE OF CITATIONS
FEDERAL CASES
ADAMS -Y 4 oHLLIAMS, 407 U.S. 143, 92 S.Ct. 1921
CARPENTER V. S16Ler, 419 F.2p 169 (8TH Cir,
COOPER ¥« (GALIFORNIA, 386 U.S. 58, 87 S.Ct.
GUSTAFSON Ya .bLORIDA, 414 U.S, 260, 94 S.Cr.
TERRY Yq Ouro, 392 U.S. 1, 88 S.Ct. 1868
UNI TER STATES YaoPRIGNQNI-PONCE, 422 U.S. 873,
UNITED STATES. Y: Jonnson, 463 F.2p 70 (10TH
LIR,
I
UNITER STATES. Y: Jonnson, 422 F.2p 1239 (D.C.
UNITER RTATE SAV» ROBINSON, 414 U.S, 218, 94
UNITER STATES OY: SecF, 410 F.2p 984 (10TH
l
UNITER STATES. Y: Ware, 457 F.2p 828 (7TH
PENNSYLVANIA CASES
Pa. __, 370 A.2p
COMMONED Hayy),
OMOEA THSYA.DD SIG CiG75s; SUPERIOR Cr.
OTHER CASES
PeopLe v. WOLF, + by: 28 opt” Habe s? 766,
II
7, 10, ll
ll
10
ll
8
ll
ll
4, 7, ll
ll
TABLE OF CITATIONS
(CONTINUED)
CONSTITUTIONAL AND STATUTORY PROVISIONS
UniTED STATES CONSTITUTION, AMENDMENT XIV
Unrtep States CONSTITUTION, AMENDMENT IV
Ar of oss 2 Je SUN»
Act OF Aprit 29, let 189h, et Bor S122) 3 AS
HREM Yb" Las,
OTHER AUTHORITIES
ENNSYLVANIA, AT !ABLE
PENNSYLVANIA STATE POLICE, UNIFORM CRyMe REE ORT:
RIME IN
PENNSYLVANIA STATE POLICE, UNIFORM Cryme REEQRT:
RIME IN PENNSYLVANIA, AT !ABLE
II!
1
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 197_
No.
COMMONWEALTH OF PENNSYLVANIA,
PETITIONER
V.
HARRY MIMMMS,
RESPONDENT
PETITION FOR WRIT OF CERTIORARI
TO
THE SUPREME COURT OF PENNSYLVANIA
THE PETITIONER, THE COMMONWEALTH OF PENNSYLVANIA, RESPECT-
FULLY PRAYS THAT A WRIT OF CERTIORARI ISSUE TO REVIEW THE JUDGMENT
AND OPINION OF THE PENNSYLVANIA SUPREME COURT ENTERED ON FEBRUARY
28, 1977, IN THE ABOVE-CAPTIONED CASE,
OPINIONS BELOW
THE OPINION BELOW OF THE PENNSYLVANIA SuPREME CouRT, WHICH
IS UNOFFICIALLY REPORTED AT 379 A,2p 1157 (1977), 1s set ouT
IN THE APPENDIX. (THIS OPINION HAS NOT YET BEEN PUBLISHED IN
THE OFFICIAL STATE REPORTS.) ALSO INCLUDED IN THE APPENDIX IS
THE OPINION OF THE PENNSYLVANIA SUPERIOR COURT WHICH IS
OFFICIALLY REPORTED AT 232 Pa, Superior Ct. 486 (1975),
JURISDICTION
THE ORDER OF THE PENNSYLVANIA SuPREME COURT WAS ENTERED
ON Fepruary 28, 1977. A TIMELY APPLICATION FOR REARGUMENT, WHICH
WAS THEREAFTER FILED BY PETITIONER, WAS DENIED ON Marcu 28, 1977,
THIS PETITION FOR CERTIORARI WAS FILED WITHIN NINETY (90) pays
OF THAT DENIAL. THE JURSIDICTION OF THIS CoURT IS INVOKED
PURSUANT TO 28 U.S.C. $1254(1),
QUESTIONS PRESENTED
ARE THE FouRTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION VIOLATED IF POLICE OFFICERS, ROUTINELY AND
SOLELY FOR REASONS OF SELF-PROTECTION, ORDER MOTORISTS,
WHO HAVE BEEN LEGALLY DETAINED FOR A TRAFFIC OFFENSE, TO
GET OUT OF THEIR VEHICLES WHILE DETAINED?
IN VIEW OF THE DE MINIMUS NATURE OF THIS INTRUSION, DID
THE PENNSYLVANIA SUPREME COURT INCORRECTLY WEIGH THE PUBLIC
AND PRIVATE INTERESTS INVOLVED AND NEEDLESSLY INCREASE
THE RISKS FACED BY THE LAW ENFORCEMENT OFFICERS OF THE
COMMONWEALTH?
CONSTITUTIONAL PROVISIONS INVOLVED
Unittep States CONSTITUTION, AMENDMENT
FourRTEEN, SECTION ONE.
ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND
SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED
STATES AND OF THE STATE WHEREIN THEY RESIDE. No STATE SHALL
MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGE OR
IMMUNITIES OF CITIZENS OF THE UNITED STATES; NOR SHALL ANY
STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT
DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN ITS JURIS-
DICTION THE EQUAL PROTECTION OF THE LAWS,
UniTED STATES CONSTITUTION, AMENDMENT
Four,
THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND
SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE,
BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION,
AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND
THE PERSONS OR THINGS TO BE SEIZED,
STATUTORY PROVISION INVOLVED
pen 38,1988) Patt sa e1SDE Re Anebed,
shes 1979, P.L. _. flo. 166 $1, 75 P.S,
THE OPERATOR OF ANY VEHICLE OR ANY PEDESTRIAN CHARGED WITH
A VIOLATION OF ANY SUMMARY PROVISIONS OF THIS ACT [THE PENNSYL-
VANIA VEHICLE Cope], SHALL STOP UPON REQUEST OR SIGNAL OF
ANY PEACE OFFICER, WHO SHALL BE IN UNIFORM, AND SHALL EXHIBIT
HIS BADGE OR OTHER SIGN OF AUTHORITY, AND SHALL, UPON REQUEST,
EXHIBIT HIS REGISTRATION CARD, OR OPERATOR'S LICENSE CARD,
OR LEARNER'S PERMIT, OR OTHER MEANS OF IDENTIFICATION IF
A PEDESTRIAN, AND SHALL WRITE HIS NAME IN THE PRESENCE OF
SUCH PEACE OFFICER, IF SO REQUIRED FOR THE PURPOSE OF ESTA-
BLISHING HIS IDENTITY,
STATEMENT OF THE CASE
PROCEDURAL HISTORY
RESPONDENT, Harry flIMMS, WAS CHARGED IN THE CouRT OF
Common PLEAS OF PHILADELPHIA County, AS OF OcTOBER SESSIONS,
1970, No. 746, WITH VIOLATING THE UNIFORM FIREARMS ACT AND
CARRYING A CONCEALED DEADLY WEAPON. THESE CHARGES WERE LODGED
AS A CONSEQUENCE OF HIS ILLEGAL POSSESSION OF A .33 CALIBER
REVOLVER. A PRE-TRIAL MOTION TO SUPPRESS PHYSICAL EVIDENCE
(THE REVOLVER) WAS HEARD AND DENIED BY THE HONORABLE EDWARD
BRADLEY ON DecemBer 13, 1971. TRIAL WAS HELD BEFORE THE
HONORABLE JAMES T, McDERMOTT, SITTING WITH A JURY, ON Marcu 14,
1972, and March 15, 1972. AT ITS CONCLUSION, RESPONDENT WAS
FOUND GUILTY ON BOTH COUNTS OF THE INDICTMENT. FOLLOWING
THE DENIAL OF POST-VERDICT MOTIONS, RESPONDENT WAS SENTENCED
TO ONE AND ONE-HALF (1-1/2) To THREE (3) YEARS IMPRISONMENT
ON THE CHARGE OF UNLAWFULLY CARRYING A FIREARM WITHOUT A
LICENSE. SENTENCE WAS SUSPENDED ON THE CHARGE OF CARRYING
A CONCEALED DEADLY WEAPON,
A DIRECT APPEAL WAS TAKEN TO THE SUPERIOR CouRT OF
PENNSYLVANIA WHICH AFFIRMED THE CONVICTION. COMMONWEALTH V.
Mimms, 232 Pa. Superior Ct. 486, 335 A.2p 516 (1975).
(APPENDIX, LNERA AT PP. lla-17a.) FOLLOWING THE GRANT OF
A PETITION FOR ALLOWANCE OF APPEAL, THE SUPREME COURT OF
PENNSYLVANIA REVERSED THE CONVICTION IN AN OPINION ISSUED ON
Fepruary 28, 1977. CommonweartH v. Mimms, Pa. __, 370 A.2p
1157 (1977). (APPENDIX, INFRA AT PP. la - 9a.) AN APPLICATION
FOR REARGUMENT, WHICH WAS FILED BY THE COMMONWEALTH ON
Marcy 14, 1977, WAS DENIED oN Marcu 28, 1977.
Facts
RESPONDENT’S CONVICTION AROSE FROM HIS UNLAWFUL POSSESSION
OF AN OPERABLE, UNREGISTERED, AND LOADED .33 CALIBER REVOLVER
(N.T. 6, 17, 5). THe WEAPON WAS FOUND ON HIS PERSON AFTER
HE WAS STOPPED BY THE POLICE FOR OPERATING A VEHICLE WITH AN
EXPIRED LICENSE TAG (N.T. 3, 12). AT THE TIME THE VEHICLE WAS
STOPPED BY OFFICERS KurTz AND MILBY OF THE PHILADELPHIA PoLIcE
DEPARTMENT, IT WAS OCCUPIED BY RESPONDENT AND ONE OTHER PERSON
(N.T. 2-3, 4, 12). When OFFicer KurTZ APPROACHED THE AUTO-
MOBILE ON THE DRIVER'S SIDE, HE IMMEDIATELY ASKED RESPONDENT
TO STEP FROM THE VEHICLE (N.T. 3-4). THE OFFICER TESTIFIED
AT TRIAL THAT HE ROUTINELY MAKES SUCH A REQUEST AFTER
ANY VEHICULAR STOP FOR A TRAFFIC VIOLATION (N.T. 10). His
REASON FOR TAKING SUCH ACTION IS TO PREVENT ANY PERSON,
WITH WHOM HE WOULD HAVE TO COME IN CLOSE PROXIMITY, FROM TAKING
“MORE ADVANTAGE” OF HIM BY VIRTUE OF THAT PERSON’S POSITION
INSIDE THE CAR (N.T. 19),
WHEN RESPONDENT STEPPED FROM THE CAR, OFFICER KuRTZ
NOTICED A LARGE BULGE ON RESPONDENT’S HIP UNDER HIS SPORTS
COAT. FOR REASONS OF SELF PROTECTION, HE THEN FRISKED
RESPONDENT AND REMOVED FROM HIS WAISTBAND THE SUBJECT REVOLVER
(N.T, 4, 9, 19), RESPONDENT’S ARREST FOLLOWED.
BY WAY OF DEFENSE, BOTH RESPONDENT MIMMS AND HIS PASSENGER
TESTIFIED THAT MIMMS HAD NOT EITHER PREVIOUSLY SEEN, OR
HAD ON HIS PERSON, THE CONFISCATED REVOLVER (N.T. 25, 31, 41,
42), THE JURY CHOSE TO DISBELIEVE THEIR VERSION OF THE
INCIDENT AND CONVICTED [lIMMs,
“N.T.” REFERS TO THE TRIAL NOTES OF TESTIMONY.
f
REASONS FOR GRANTING THE WRIT
THE PENNSYLVANIA SUPREME COURT'S RULING, THAT POLICE
OFFICERS ARE PROHIBITED BY THE FOURTH AND FOURTEENTH
AMENDMENTS FROM ROUTINELY ORDERING MOTOR STS OUT OF
THEIR CARS AFTER A STOP FOR A TRAFFIC VIOLATION, UN-
sath Br gy THE CLEAR NEED FOR POLICE OFFICERS
N'SAFETY. IN VIEW OF TE. De MIITAS.RATURE ‘OF THE
INTRUSION ON A CITIZEN’S FREEDOM OF MOVEMENT, THE
COURT INCORRECTLY WEIGHED THE PUBLIC AND PRIVATE
INTERESTS INVOLVED AND CREATED AN UNREASONABLE RESTRIC-
TION ON POLICE WHICH NEEDLESSLY INCREASES THEIR R
OF DEATH OR SERIOUS INJURY, et
THE QUESTION PRESENTED BY THIS CASE IS WHETHER POLICE
OFFICERS, CONSISTENT WITH THE FOURTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, MAY ROUTINELY, AND SOLELY
FOR THEIR OWN PROTECTION, ORDER MOTORISTS FROM THEIR CARS
AFTER MAKING A LEGAL TRAFFIC STOP,
IN THIS CASE TWO PHILADELPHIA POLICE OFFICERS, JOHN KuRTZ
AND LESTER MILBY, STOPPED AN AUTOMOBILE OPERATED BY RESPONDENT
MIMMS TO ISSUE A TRAFFIC SUMMONS FOR DRIVING WITH AN EXPIRED
LICENSE TAG, AS HE APPROACHED THE DRIVER (Mimms), OFFICER
KURTZ DIRECTED HIM TO GET OUT OF THE AUTOMOBILE, AND ASKED
HIM TO PRODUCE HIS OWNER’S CARD AND DRIVER’S LICENSE. WHEN
MIMMS STEPPED FROM THE VEHICLE, OFFICER KURTZ NOTICED A LARGE
BULGE ON Mimms’ HIP UNDER HIS SPORTS JACKET. KURT2 IMMEDIATELY
FRISKED MIMMS AND REMOVED FROM HIS WAISTBAND A LOADED .38
CALIBER REVOLVER,
THE ULTIMATE QUESTION, IN RESOLVING THE PROPRIETY OF
ANY ACTION CHALLENGED AS VIOLATIVE OF THE FouRTH AMENDMENT,
IS WHETHER THE ACTION TAKEN WAS REASONABLE. COOPER VY.
CaLIFoRNIA, 386 U.S, 5%, 61; 87 S.Ct. 78%, 799 (1967).
THE PENNSYLVANIA SuPREME COURT, RELYING ON THIS CourT’S
*)
7
DECISION IN [ERRY Vv. On1o, 392 U.S. 1, 16-19, 83 S. Cr.
1868, 1877 (1968), HELD IN THE INSTANT CASE THAT A POLICE
OFFICER CAN NOT REASONABLY ORDER A MOTORIST FROM HIS CAR,
AFTER A TRAFFIC STOP, UNLESS THE OFFICER CAN “POINT TO
SPECIFIC AND ARTICULABLE FACTS WHICH, TAKEN TOGETHER WITH RATIONAL
INFERENCES FROM THESE FACTS, REASONABLY WARRANT THE INTRUSION, “2
THE PENNSYLVANIA Supreme CourT’S RELIANCE ON JERRY
vy. OH1O, SUPRA, IN THE FACTUAL CONTEXT PRESENTED HERE IS
TOTALLY MISPLACED. JERRY, AS THE PENNSYLVANIA SUPREME CouRT
NOTED, DEALT WITH “THE EXIGENCIES OF FACE-TO-FACE STREET CON-
FRONTATIONS BETWEEN A POLICE OFFICER AND A CITIZEN”. IN JERRY
THE QUESTION PRESENTED WAQ WHETHER OR NOT, IN A FACE-TO-FACE
CONFRONTATION BETWEEN A POLICE OFFICER AND A CITIZEN, A POLICE
OFFICER COULD FRISK THAT CITIZEN FOR HIS OWN PROTECTION. THE
QUESTION HERE PRESENTED IS WHETHER OR NOT A POLICE OFFICER, HAVING
MADE A LAWFUL STOP OF A MOTORIST, MAY INSIST, FOR HIS OWN PRO-
TECTION, THAT THE LAWFUL CONFRONTATION BE EACE-TO-FACE.> It
~
THE PENNSYLVANIA SUPREME Court iN SUPPRESSING THE REVOLVER
ffeELteD OLELY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
NIT§R TATES CONSTITUTION. IN ITS OPINION, THE COURT STATED,
ECAUSE WE CONCLUDE THAT APPELLANT'S REVOLVE WAS
SEIZED IN A NER WHICH VIOLATER THE FOURTH AMEND-
MENT TO THE CONSTITUTION OF THE UNITED STATES, WE
REVERSE THE UPEBIOR OURT AND REMAND THE CASE FOR
A NEW TRIAL. OOTNOTE OMITTED
COMMONWEALTH V. Mimms, supRA, 370 A.2p at 1158,
7
4
166, ‘ AUTHORIZES THE POLICE
BRIEELY DETALM THE OPERATOR OF A MOTOR VEHICLE WHO VIOLATES
Y OF T RY PROVISIONS OF THE AcT. | MIMMS YIOLATER
sip co |
J 4
SB°B.7. 788) Salta, as amended, P8°P,S, S501 CAS).
3
BithStoe ive ppwetpvanee Worn Yevtecs ‘Zone they OF Dept
oe PETALS a9 angus ULY 56 by frp
8
IS CLEAR FROM THE RECORD THAT OFFICER Kurtz REQUIRED MIMMS
TO STEP FROM HIS CAR SOLELY TO ESTABLISH A FACE-TO-FACE
CONFRONTATION AND TO FORECLOSE MIMMS FROM BEING ABLE TO
‘"AKE ANY UNOBSERVED MOTIONS. REQUIRING THE FACE-TO-FACE
CONFRONTATION SERVED ONE PURPOSE ONLY, SELF-PROTECTION.
WHILE THE POLICE OFFICER COULD NOT ARTICULATE ANY SPECIFIC
OBSERVABLE FACTS ABOUT MIMMS TO SUGGEST A NEED FOR SELF PRO-
TECTION, SUCH A NEED IS NEVERTHELESS OBVIOUS, PERTINENT
STATISTICS INDICATE THAT ROUTINE TRAFFIC STOPS INVOLVE AT LEAST
AS MUCH DANGER TO POLICE OFFICERS AS ARRESTS FOR VIOLENT CRIMES. 4
THIS COURT HAS SPECIFICALLY NOTED THE RISKS INCURRED BY POLICE
OFFICERS WHEN REQUIRED TO APPROACH VEHICLES. ADAMS Vv. WILLIAMS,
47 U.S, 143, 92 $.Cr. 1921 (1972):
FIGURES REPORTED BY THs FepeRAL Bureau oF INVEsTI-
GAT] QM INDICATE THAT 125 POLICEMEN WERE MURDERED
IN l, WITH ALL BUT FIVE QF THEM HAVING BEEN
ILLED BY GUNSHOT WOUNDS. FEDEF.AL BUREAU OF
5ST IGATION W ENFORCEMENT BULLETIN, FEBRUARY
» P, 55, ACCORDING TO ONE STUDY, APPROXIMATELY
OF POLICE SHOOTINGS OCCURRED WHEN A POLICE
FFICER APPROACHED A SUSPECT SEATED IN_AN AUTOMOBILE,
RISTOW, ine
4 4 ‘ RIM, ‘ » AND ‘ ’ ’
Ip. at 148-149, n. 3, 92 S.Cr. at 1924, nN. 3.2
q
ly Uy Top STAIES ¥. ROBINSON "14 U.S, 218, 234, 94 S.CT. 467,
6 » THIS LOURT SPECIFICALLY DECLINED TO ACCEPT THE
ARGUMENT THAT TRAFFIC VIOLATIONS INVOLVE LESS SEE Ak TO
GUSTAFSON V- Fronina, HO DoSc BeBe On Sots: BBE (Ab99) .
5
THE EXTENT OF THE RISK FACED BY POLICE OFFICERS SOLELY IN THE
ON 5s of BQUTINE TRAFFIC STOPS AND PURSUITS IS CLEAR,
N PF LAW ENFORCEMENT OFFICERS IN THE OMMONWEAL TH
OF ENNSYLVANIA WERE ASSAULTED N 1975, 4,044_sucH ASSAULTS
OCCURRED, OF THESE TOTALS, 3.1 PERCENT» AND 4,7 PERCENT
ESPECTIVELY, INVOLVED ROUTINE TRAFFIC STOPS OR PURSUITS.
HESE FIGURES ARE SIGNIFICANT WHEN COMPARED WITH THE PER-
CENTAGE OF ASSAULTS WHICH OCCURRED IN OTHER SITUATIONS:
OOTNOTE CONTINUED ON NEXT PAGE
IT IS READILY APPARENT THAT EVERY TIME A POLICE OFFICER
APPROACHES A VEHICLE HE IS POTENTIALLY PLACING HIS LIFE
ON THE LINE. IT IS EQUALLY APPARENT THAT TO REQUIRE A POLICE
OFFICER IN THIS SITUATION TO BLINDLY ACCEPT THIS DANGER
WITHOUT TAKING THE MOST MINIMAL OF PRECAUTIONS IS TOTALLY
UNREASONABLE. BY THE TIME A POLIGE OFFICER IN THIS SITUATION
CAN ARTICULATE SPECIFIC FACTS WHICH WARRANT A CONCLUSION THAT
HIS LIFE IS IN DANGER, IT WILL ALL TOO OFTEN BE TOO LATE
TO AVOID THE DANGER (E.G, I ORDERED HIM FROM THE CAR WHEN
HE POINTED HIS .58 REVOLVER AT MY HEAD),
(FOOTNOTE 5 CONTINUED)
1975 1976
1, Traffic Stop on PursuitT....... 47% 8.1%
: P P
- serene. og ie
; P P
> Fe seer! on ik
eS: 0 ae a ee eee 1.3%
5. INVESTIGATION oF Suspicious PERSONS
Gl CeeeePesc oc te ttt ee ke ee 5.1%
6, AMBUSH, ‘ ' ’ . . . ‘ : ‘ ' ' ' ’ ' ' ), 3% 5%
7, entacty DeRANGED Persons. . . 3.9% 11%
(UNIFORM CRIME REPORT : CRIME IN PENNSYLVANIA, 1976; anp UNIFORM
RIME EPORT : (RIME N PENNSYLVANIA ; FOMPILED BY YHE
ENNSYLVANIA STATE POLICE, TABLES 244 AND 29 RESPECTIVELY.)
Tne DANGERS FACED BY OFFICERS MAKING TRAFFIC STOPS IN THE
ITY OF HILADELPHIA 1S ALSO EMONS TRATED BY STATIST IGS
PROVIDED BY THE PHILADELPHIA FOtaCE DEPARTMENT. IN 6,
Ul OF THE 2,547 REPORTED ASSAULTS ON POLICE OFFICERS,
i OR 7.2 PERCENT) INV BD YHICLE INVESTIGATIONS.
N THE FIRST QYARTER OF 5 , €2 ouT OF THE 523 REPORTED
ASSAULTS (oR 11,9 PERCENT) OCCURRED DURING A VEHICLE
INVESTIGATION. (See APPENDIX, INFRA AT PP. ]8a-19,.)
10 1]
) Tuts Court IN JERRY RECOGNIZED “THE . . . IMMEDIATE
INTEREST OF THE POLICE OFFICER IN TAKING STEPS TO ASSURE Unitep States v, Ware, 457 F.2p 828 (7TH Cir. 1972); Uniten
HIMSELF THAT THE PERSON WITH WHOM HE IS DEALING IS NOT ARMED STATES Vv. JOHNSON, 442 F.2p 1239 (D.C. Cir. 1971); CARPENTER
WITH A WEAPON THAT COULD UNEXPECTEDLY AND FATALLY BE USED VY. SiGier, 419 F.2p 169 (8TH Cir. 1969); Unitep States
> AGAINST HIM.” (Ip, AT 23), THE LOGICAL BASIS OF THIS V.SELE, 410 F.2p 984 (10TH Cir. 1969); Peopie v, WOLe,
CouRT’S DECISION WAS THAT IT WOULD BE CLEARLY UNREASONABLE 60 Tt. 250, 326 N.E.2p 766, CERT. DENIED, 423 U.S. 946
TO REQUIRE POLICE OFFICERS TO TAKE UNNECESSARY RISKS IN (1975),
THE PERFORMANCE OF THEIR DUTIES. IN FACT, THIS COURT STATED AS WAS NOTED IN THE CONCURRING OPINION FILED IN THE
> THAT THIS WAS THE CENTRAL JUSTIFICATION FOR UPHOLDING THE PENNSYLVANIA SUPREME CouRT, MIMMS :
P ‘ HAD IN FACT ALREADY BEEN ‘SEIZED.’ HE WAS PROPERLY
ENTIRE STOP AND FRISK PROCEDURE. DETAINED By FF ICER eit A VIOLATION OF
4 THE Motor VEHICLE Cop FREEDOM OF MOVEMENT
IT IS CLEAR THAT UNDER A JERRY-TYPE ANALYSIS IT IS WAS THUS LAWFULLY RESTRICTED UNTIL THE OFFICER
TOTALLY REASONARLE FOR A POLICE OFFICER TO ORDER A LAWFULLY HAD FINISHED HIS BUSINESS. REQUIRING A MOTORIST
TO LEAVE HIS VEHICLE UNDER THESE CIRCUMSTANCES
> STOPPED MOTORIST FROM HIS CAR WHILE COMPLETING THE STOP. EVEN 1s, IN MY VIEW, OF NO CONSTITUTIONAL MOMENT,
HE DE MINIMUS NATURE OF THE INTRUSION IS CLEARLY
IF AN OFFICER MUST ARTICULATE REASONS TO JUSTIFY SUCH ACTION, OUTWEIGHED BY THE PUBLIC INTEREST IN INSURING
THE STATISTICALLY PROVEN DANGERS WHICH A POLICE OFFICER THE SAFETY OF OUR LAW ENFORCEMENT PERSONNEL.
COMMONWEALTH Vv, Mimms, , -
FACES WHEN MAKING A TRAFFIC STOP SATISFY THIS REQUIREMENT. - supra, AT 370 A.2p 1161-1162 (nix,
, UNITED STATES Vv, BRIGNONI-PONCE,
> ALTERNATIVELY, NOTHING IN JERRY SUGGESTS THAT, ONCE A CITIZEN | Js CONCURRING). SEE ALSO -
HAS BEEN LAWFULLY STOPPED, SOMETHING FURTHER MUST BE SHOWN 422 U.S. 873, 95 S.Ct. 2574 (1975).
TO JUSTIFY A POLICE OFFICER'S INSISTENCE THAT THE ENSUING
CONFRONTATION BE FACE-TO-FACE FOR HIS OWN PROTECTION, ~
c THE STANDARD IMPOSED BY THE FOURTH AMENDMENT IS ONE OF
REASONABLENESS. SINCE ORDERING A MOTORIST FROM A CAR AFTER
A LAWFUL STOP CONSTITUTES AT MOST A MINIMAL ADDITIONAL INTRUSION
UPON A CITIZEN'S FREEDOM OF MOVEMENT, THE REQUEST IS CLEARLY P 5
P ASSUMING ARGUENDO THAT THE OFFICER ACTED PROPERLY IN REQUIRING
7 REASONABLE, AND THUS CONSTITUTIONAL, WHEN THE INTERESTS MIMMS TO GET OUT OF HIS CAR, My Is CLEAR THAT THE SUBSEQUENT
FRISK WAS ALSO LAWFUL. Once OFFICER KURTZ SAW THE SUSPICIOUS
ANNER SUGGESTED IN JERRY
AT ISSUE ARE BALANCED IN THE MANNE BULGE UNDER MIMMS’ SPORTS COAT, REASON AND COMMON SENSE,
vy, Oul0, SUPRA, AND ADAMS v. WILLIAMS, SUPRA. SEE ALSO: TEMPERED WITH THE EXPERIENCE GLEANED FROM SEVEN YEARS ON THE
POLICE FORCE, DEMANDED THAT A QUICK AND LIMITED SEARCH BE MADE
Unitep States v. JoHNsON, 463 F.2p 79 (10TH Cir. 1972); TO DETERMINE WHETHER THE BULGE WAS CAUSED BY A WEAPON. CLEARLY,
e UNDER THE CIRCUMSTANCES, OFFICER KurTz’S DECISION TO FRISK
2 RESPONDENT WAS BOTH REASONABLE AND PROPER,
.7
e
Se
la
12 AppenDIX A
COMMONWEALTH of Pennsylvania
\@
ve
CONCLUSION
Harry MIMMS, Appellant.
a”
FoR ALL THE FOREGOING REASONS, THE COMMONWEALTH OF ee eee eee
PENNSYLVANIA RESPECTFULLY REQUESTS THAT A WRIT OF CERTIORARI a Pe HERES SU, Svres
ISSUE TO REVIEW THE DECISION BELOW, Decided Feb. 28, 1977.
Reh i Deni M h 28, 19 e
RESPECTFULLY SUBMITTED, a ee 7,
OPINION OF THE COURT
GAELE McLAUGHLIN BARTHOLD POMEROY, Justice.
Assistant District ATTORNEY \@
Two Philadelphia police officers stopped an automobile
MARK SENDROW ' for the purpose of issuing a traffic summons. Upon approach-
ing the automobile, %fficer Kurtz ordered the driver, appel-
CHIEF, MoTIONs DIVISION lant Harry Mimms, to step out of the car. After Mimms had
alighted from the vehicle, Officer Kurtz noticed a large
STEVEN H, GOLDBLATT bulge under Mimms' sports jacket. Fearful that the jacket
Deputy Distri.t ATTORNEY FOR LAW e might be covering a weapon, the police officer conducted
a frisk of appellant's outer clothing. The frisk resulted
Zz EMMETT FITZPATRICK in the discovery of a loaded .38 caliber revolver and five
live rounds of ammunition. Based on this evidence appel-
DistRIct ATTORNEY lant was indicted for carrying a concealed deadly weapon
and for unlawfully carrying a firearm without a license.
240 CENTRE SQUARE WEST A motion to suppress was denied, and after a trial, at which
PHILADELPHIA, PENNSYLVANIA 19102 the revolver was introduced into evidence, Mimms was con-
victed on beth counts. The Superior Court affirmed the
ey conviction,* and we granted allocatur. Because we conclude
that appellant's revolver was seized in a manner which
violated the Fourth Amendment to the Constitution of the
United States, we reverse,the Superior Court and remand
the case for a new trial.
1
o Commonwealth v. Mimms, 232 Pa.Super. 486, 335 A.2d 516
(1975). The Superior Court affirmed the conviction by
a four to three vote; the division, however, was occasioned
by another issue not here considered.
2
Because we reverse the case on this basis, it is unnecessary
for us, to reach the other issues raised by appellant on this
aR appeal. Those issues are as follows: (1) the Municipal
Court of Philadelphia, not the court of common pleas, had
subject matter jurisdiction over the offenses charged; (2)
the trial court erred in allowing testimony from a defense
witness that both he and appellant were Muslims; (3) the
district attorney in his summation exceeded the bounds of
permissible argument; (4) the trial judge erred when he ex-
pressed to the jury his opinion as to the credibility of
3 witnesses.
2A
The Fourth Amendment to the United States Constitution
provides that "the right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated. ..." The
broad mandate of the amendment serves to protect an individual's
reasonable expectation of privacy from unjustifiable govern-
mental intrusions. See Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed. 889 (1968); Katz v. United States,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Common-
wealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). The
protection thus afforded is not limited to persons in the
shelter of their homes, but extends as well to the occupants
of a moving vehicle. Commonwealth v. Murray, supra;
Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974);
Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973);
Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973);
Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970).
The question presented is whether the governmental intrusion
which occurred in this case--an order to leave the automobile
and a limited search for weapons--may be justified cog-
sistently with the standards of the Fourth Amendment.
The Commonwealth does not seek to justify Officer
Kurtz's frisk for weapons on the ground that the traffic
violation for which appellant's automobile was stopped
supplied probable cause to search the occupants of the
vehicle. We have previously held that such a violation
does not, indeed, supply justification. See Commonwealth
v. Dussell, supra. Nor does the Commonwealth contend
that the search was made incident to a lawful full-custody
arrest based upon probable cause. See United States v.
Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed. 2d 427
(1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488,
38 L. Ed.2d 456 (1973). Rather the Commonwealth asserts
that the frisk was initiated only after Officer Kurtz had
reasonable grounds to believe that appellant was armed and
dangerous and was limited in scope to a pat-down of appellant's
outer clothing. As a consequence, the Commonwealth urges,
3
The Fourth Amendment applies to the States through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed2d 19081 (1961).
4
The automobile was being operated with an expired license
tag. The maximum penalty which could have been imposed
for this offense was a fine of $10. Act of April 29,
1959, P.L. 53, §511 as amended, 75 P.S. §511.
'@
3A
the stop and frisk was justified under the pronouncements of
the Supreme Court of the United States in Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 29 L.Ed.2d 829 (1968)
In Terry, the Supreme Court gave recognition to the
fact that the exigencies of face-to-face street confrontations
may require police response even when probable cause to search
or to seize property or persons is lacking. See also, Adams
v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d
612, 616 (1973). These exigencies may require a police officer
to detain a person whom he suspects of criminal activity and to
frisk the person whom he has detained when he has reasonable
grounds to believe that the person is armed and dangerous.
The Court in Terry acknowledged that action of this sort by
the police may constitute governmental interference with an
individual's reasonable expectation of privacy and that such
intrusions are often made without warrants or probable cause.
The Court held, nonetheless, that such "carefully limited
searches" are reasonable within the meaning of the Fourth
Amendment in certain narrow circumstances:
"We merely hold today that where a police officer
observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom
he is dealing may be armed and presently dangerc ve,
where in the course of investigating this behavior
he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel
his reasonable fear for his own or others’ safety,
he is entitled for the protection of himself and
others in the area to conduct a carefully limited
To be distinguished are cases wherein a search of a suspect's
person is made incident to a full-custody arrest based upon
probable cause. See United States v. Robinson, 414 U.S.
218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (driver of auto-
mobile arrested by police officer having reason to believe
that the vehicle was being driven after the operator's
license to drive had been revoked); Gustafson v. Florida,
414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) (Semble).
These decisions make it clear that “the limitations placed
by Terry v. Ohio, supra, on protective searches con-
ducted in an investigatory stop situation based on less than
probable cause are not to be carried over to searches made
incident to lawful custodial arrests." Gustafson v. Florida,
supra, at 264, 94 S.Ct. at 491. The Commonwealth in the
case before us relies on no such arrests as occurred in
Robinson and Gustafson.
4a
search of the outer clothing of such persons in an
attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapons seized
may properly be introduced in evidence against the
person from whom they were taken." 392 U.S. at
30-31, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.
The Court made it clear that "in justifying the particular
intrusions the police officer must be able to point to specific
and articulable facts which, taken together with rational
inferences from these facts, reasonably warrant the intrusion."
Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Accord
Commonwealth v. Murray, supra; Commonwealth v. Boyer,
supra; Componwesith v. Jeffries, 454 Pa. 329, 311 A.2d
914 (1973)
; Commonwealth v. Dussell, supra; Common-
wealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). The
question before us, then, is whcther Officer Kurtz has been
able to point to such “specific and articulable facts."
The precise point of our inquiry must be whether Officer
Kurtz's action was justified at its inception. Terry v.
Ohio, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d 905.
Certainly the fact that a weapon was discovered as a result
of the search cannot serve as its justification. See, e.g.,
Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902,
20 L.Ed.2d 917, 934 (1968). Even were we to assume that the
observable bulge under Mimms' coat justified a limited search
for weapons, our inquiry would still not be at an end. The
initiation of Officer Kurtz's intrusive action was the order
to appellant to get out of his car. If that order cannot be
constitutionally justified, then the fruits of the resulting
frisk were likewise unconstitutionally obtained.
In Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233
(1973) this Court held that the police had no right to order
a passenger out of an automobile after the police had stopped
it for going through a red light; although the infraction
occurred in a “high crime" area, the police could point to no
objective observable facts to support a suspicion that
criminal activity was afoot or that the occupants of the
vehicle posed a threat to police safety. Similarly in the
instant case, Officer Kurtz could point to no such observable
facts. He testified that he did not see the bulge under
appellant's coat until after appellant had stepped out of
the car, and that there was nothing unusual or suspicious
about the behavior of Mimms or his passenger which led Kurtz
to issue his order. Rather, the officer indicated that it
is his practice to order all drivers out of their vehicles
whenever he makes a stop for a traffic violation and that
the order was issued to appellant sc! ly b cause of this
practice.
The dissenting opinion of this writer in Jeffries did
not disagree with the Court's statements concerning the
law, but with the application of the law to the facts of
that case. 454 Pa. at 328, 311 A.2d 914 (dissenting
opinion of Pomeroy, J.).
SA
We are not unsympathetic to the plight of the police
officer who must approach potentially dangerous people in
the daily enforcement of our traffic laws. The Fourth
Amendment, however, mandates that invasions of the personal
liberties of the occupants of motor vehicles be justified
by a reasonable appraisal of the objective facts of the
given situation. “Anything less would invite intrusion
upon constitutionally guaranteed rights based on nothing
more substantial than inarticulable hunches." Terry v. Ohio,
392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. In the
case at bar, the stop and frisk in question was not initiated
on the basis of an objective appraisal of the given circum-
stance but rather on a policy of ordering all drivers stopped
for traffic violations out of their vehicles. Such an indis-
criminate procedure violates the Fourth Amendment and the
fruits obtained as a result thereof may not properly be used
at trial against che accused. Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The order of the Superior Court is reversed and the case
remanded for a new trial.
NIX, J., filed a concurring opinion in which O'BRIEN, J
joins.
JONES, C. J., dissents.
6A
NIX, Justice, concurring.
While I believe that the judgment of sentence in this
matter must be reversed and a new trial awarded, my reasons
for reaching this result differ from the majority. I cannot
agree that Officer Kurtz's direction to appellant that he
alight from his vehicle was such an arbitrary and unreasonable
invasion of appellant's liberty as to violate the fourth
amendment.
The requirements of the fourth amendment applicable to
the instant case were set forth most recently by the United
States Supreme Court in United States v. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
"The Fourth Amendment applies to all seizures of
the person, including seizures that involve only a
brief detention short of traditional arrest.
Davis v. Mississippi, 394 U.S. 721, 89 S.Ct.
1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio,
392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d
889 (1968). "“[W])henever a police officer accosts
an individual and restrains his freedom to walk
away, he has ‘seized’ that person,” Terry v.
Ohio, supra, at 16, 88 S.Ct. [1868] at 1877,
and the Fourth Amendment requires that the seizure
be “reasonable.” As with other categories of police
action subject to Fourth Amendment constraints,
the reasonableness of such seizures depends on a
balance between the public interest, and the
individual's right to personal security free from
arbitrary interference by law officers. Terry
v. Ohio, supra, at 29-21, 88 S.Ct. [1868] at
1879; Camara v. Municipal Court, 387 U.S. 523,
536-37, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967)."
Id. at 878, 95 S.Ct. at 2578 (emphasis added).
The application of this balancing test to the instant facts
yields the conclusion that Officer Kurtz's action was reasonable.
The intrusion occasioned by requiring appellant to step out
of the vehicle was minimal. Appellant had in fact already
been "seized". He was properly detained by Officer Kurtz
for a violation of the Motor Vehicle Code. Appellant's
freedom of movement was thus lawfully resrricted until
the officer had finished his business. Requiring a
motorist to leave his vehicle under these circumstances
is, in my view, of no constitutional moment. The de minimus
1
The majority's reliance on Commonwealth v. Pollard,
450 Pa. 138, 299 A.2d 233 (1973), is tenuous at best.
(Footnote continued on next page)
7A
nature of the intrusion is clearly outweighed by the public
interest in insuring the safety of our law enforcement personnel.
(Footnote 1 continued)
Our holding in that case was clearly limited to passengers
occupying a vehicle. ("Further, as was previously noted,
appellant was not the driver of the automobile." Id.
at 142, 299 A.2d at 235.) The majority in the case at bar
ignores this distinction, and thus completely overlooks
the question left open in Pollard of whether an op-
erator's expeccation of privacy differs from that of an
occupant of a vehicle detained for a traffic violation.
Cf. United States v. Johnson, 463 F.2d 70 (10th Cir.
1972); Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969).
In People v. Wolf, 60 Ill. 230, 326 N.E.2d 766, cert.
denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280
(1975), the Supreme Court of Illinois upheld the intro-
duction of evidence obtained by a state police officer
when he opened the driver's door to inspect the serial
number of a “suspicious” vehicle detained because its
licensee plate was fastened on with wire. The court
sustained the officer's action in opening the door as
reasonable and not inconsistent with the fourth amendment
on the ground that the intrusion was minimal. See also
United States v. Ware, 457 F.2d 828 (7th Cir. 1972);
United States v. Self, 410 F.2d 984 (10th Cir. 1969).
In the case at bar, the vehicle was detained for having
an expired license plate. Presumably, Officer Kurtz
would have been justified in opening appellant's door to
inspect the vehicle identification number. In my view,
the difference, if any, in the “degree of intrusion"
occasioned by this type of conduct and that instantly
held invalid is constitutionally insignificant.
2
Risks incurred by officers required to approach parked
vehicles were noted by the United States Supreme Court
in Adams v. Williams, 497 U.S. 143, 92 S.Ct. 1921,
32 L.Ed.2d 612 (1972).
Figures reported by the Federal Bureau of
Investigation indicate that 125 policemen
were murdered in 1971, with all but five of
them having been killed by gunshot wounds.
Federal Bureau of Investigation Law Enforce-
ment Bulletin, February 1972, p. 33. According
te one study, approximately 30% of police
shootings occurred when a police officer
approached a suspect seated in an automobile.
Bristow, Police Officer Shootings--A Tact.cal
Evaluation, 54 J.Crim.L.C. & P.S. (1963).
Id. at 148-149 n. 3, 92 S.Ct. at 1924.
2
8A
I would thus hold that when appellant alighted from the car,
pursuant to the officer's instructions, the limited search for
weapons was justified by the observable bulge under appellant's
jacket. See Terry v. Ohio, supra.
I join my brethren, however, in remanding this matter for
a new trial because I believe the trial judge erred in per-
mitting the Assistant District Attorney to cross-examine a
defense witness concerning the witness" and the appellant's
religious affiliations.
Clayton Morrison, 4 passenger in the vehicle at the time
of appellant's arrest, testified for the defense that he and
not appellant had brought the revolver into the vehicle, and
that it was found not on appellant, but under the car seat.
On cross-examination, the Assistant District Attorney questioned
the witness as to his and Morrison's religious affiliations as
follows:
"Q. Tell me, are you a good friend of Harry Mimms?
"A. I am an acquaintance of him, I know him.
"Q. You know him very well would you say?
"A. Yes, sir.
"Q. Are you both Muslims?
"A. Sir?
"Objection: Sir, I move for withdrawal of a
juror.
“THE COURT: Overruled.
"Q. Are you both Muslims?
"A. Yes, sir.
"Q. In other words, when you say ‘Muslims’,
followers of the Islam faith is that right?
. Tee.”
Appellant's religious affiliations were never mentioned during
direct examination. The Commonwealth does not contend that
3
Prior to appellant's trial, Morrison had pled guilty to
charges of violation of the Uniform Firearms Act and
carrying a concealed deadly weapon.
SA
the questions were relevant to any factual matter at issue
during the trial,” but argues that the testimony was intro-
duced to show the witness’ relationship to the appellant and
put his credibility in issue. However, our legislature
has provided that:
"[n]o witness shall be questioned, in any
judicial proceeding, concerning his reli-
gious belief; nor shall any evidence be
heard upon the subject, for the purpose
of affecting either his competency or
credibility.” Act of April 23, 1909, P.L.
140, $3, 28 P.S. §313 (1958) (emphasis
added).
We have stated that no verdict which may have been brought
about or even influenced by a litigant's religious affiliations
should be permitted in a court of justice. O'Donnell v.
Philadelphia Record Co., 356 Pa. 307, 346-47 n.5, 51 A.2d
775, 793-94 n.5, cert. denied, 332 U.S. 766, 68 S.Ct. 74,
92 L.Ed. 351 (1947). This is particularly so where, as here,
the religious affiliation placed before the jury is that of a
highly controversial and extensively publicized group like the
Black Muslims. The potentially prejudicial impact of such
testimony is obvious, and its use by the Commonwealth in its
attempt to impeach Morrison was error, requiring a new trial.
Accordingly, I concur in the judgment of the Court granting
appellant a new trial.
O'BRIEN, J., joins in this concurring opinion.
In McKim v. Philadeiphia Transportation Co., 364 Pa.
237, 72 A.2d 122 (1950), this Court permitted questions
concerning a litigant's religious affiliation where it
was alleged that her injuries had prevented her from
performing her duties as a minister of the Jehovah's
Witnesses. The questions were thus permitted to obtain
“substantive information", and not for the purpose of
impeachment.
10a
APPENDIX B
Pupreme Court of Pennsylvania
Eastern District
LAURA E LITCHARD
DEPUTY PROTHONOTARY
PHILADELPHIA, 19107
March 31, 1977
irCr IVIEH
Michael R. Stiles, Esq.
Assistant District Attorney
Chief, Appeals Division =A
2300 Centre Square West shone! Ay ~y
Philadelphia, Pa. 19102 . et
Re: Commonwealth of Pennsylvania v.
Harry Minmms, Appellant
No. 45, January Term, 1976
Dear Mr. Stiles:
This is to advise that the following Order has been
endorsed on the Application for Reargument filed in the above
captioned matter:
"Petition denied this 28th day of March, 1977.
s/ Per Curiam."
Very truly yours,
co . ag ( (> * Cie
Le it ° —
Deputy Prothonotary
LEL/c
cc: Burton Spear, Esc.
West Publishing Company
Submitted 3/29/76 - J-159
Decision - 2/28/77
lla
Appenpix C
COMMONWEALTH V. MIMMS, APPELLANT.
Superior Court of Pennsy.vania
OPINION BY WATKINS, P. J., March 31, 1975:
This is an appeal from the judgment of sentence of the
Court of Common Pleas of Philadelphia County, Criminal Division,
by the defendant-appellant, Harry Mimms, after conviction by
a jury of violation of the Uniform Firearms Act and Carrying
a Concealed Deadly Weapon. Post-trial motions were denied
and the appellant was sentenced to 1 1/2 to 3 years imprison-
ment.
The case was commenced by arrest and complaint on Sep-
tember 7, 1970, and a Preliminary hearing was subsequently held
on September 16, 1970. Since the maximum penalty which could
be imposed on Carrying a Concealed Deadly Weapon and violation
of the Uniform Firearms Act charges was four (4) years and
the jurisdiction of the Municipal Court, at that time, was
limited to cases punishable by no more than two (2) years,
the case fell within the jurisdiction of the Court of Common
Pleas. So accordingly, the case against the appellant was
Presented to the Grand Jury where indictments were returned.
Pennsylvania Constitution, Article 5, Schedule 16 (r) (iii).
As amended by Act No. 45 of 1971 Sessions, affirmed July
14, 1971, Article 5 and its schedule were amended to broaden
the jurisdiction of the Municipal Court to hear cases where
the maximum sentence was five (5) years or less. 1969,
October 17, P.L. 259, §18, as amended 1971, July 14, P.L.
224, No. 45, §1, 17 P.S. §711.18.
On October 19, 1971, the President Judge of the Court
of Common Pleas (a) gave the Municipal Court exclusive juris-
diction over a certain class of cases where the maximum possible
sentence was five (5) years or less and (b) established by
regulation procedure whereby a cas2 could be certified from
the Municipal Court for trial initially in Common Pleas.
General Court Regulation No. 71-16. There is nothing in the
July, 1971 Amendment or in the Court regulation that would
permit any case to be heard in Municipal Court in which a
Grand Jury indictment had been returned based on the original
jurisdiction.
At trial, two police officers testifed that on or about
9 A.M. on September 7, 1979, while on patrol, they observed
the appellant driving west on Baltimore Avenue with an
expired license plate. The officers stopped the car to
issue a traffic summons. The appellant was asked to step out
of the automobile and produce his owner's card and operator's
license. The officers noticed a large bulge on the appellant's
hip under his sport jacket. The officer feared a concealed
deadly weapon and frisked the appellant and took from his
waistband a .38 caliber revolver with five live rounds. The
other occupant of the automobile was also frisked and a .32
caliber revolver was removed from his person.
12a
The appellant contends that the search of his person and
the seizure of the revolver violated his constitutional rights.
The Supreme Court of the United States in Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), at page
27 held:
"Our evaluation of the proper balance that has to
be struck in this type of case leads us to conclude that
there must be a narrowly drawn authority to permit
a reasonable search for weapons for the protection
of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous in-
dividual, regardless of whether he has probable cause
to arrest the individual for a crime. The officer need
not be absolutely certain that the individual is armed;
the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that
his safety or that of others was in danger. (Citations
omitted) And in determining whether the officer act-
ed reasonably in such circumstances, due weight must
be given, not to his inchoate, and unparticularized
suspicion or ‘hunch’, but to the specific reasonable
inferences which he is entitled to draw from the facts
in light of his experience."
What the Court was actually saying was not “what a reasonably
prudent man in the circumstances would be warranted in the belief
that his safety ... is in danger", but rather, what a reasonably
prudent police officer would be warranted to believe, other-
wise police experience referred to in the above citation would
have no bearing. Either test could be properly applied in
the instant case.
As a general proposition the arrest of the driver of an
automobile for an ordinary traffic offense does not, without
more, permit # warrantless search of an automobile. Common-
wealth v. Dussell, 439 Pa. 392, 266 A. 2d 659 (1970), but
when, eas in the instant case, a police officer in the perfor-
mance of his duty stops a car to enforce a traffic violation
for failure to have a current license tag, and when requesting
the driver to step out of the car and exhibit his owner's
card and driver's license, he becomes aware of a situation
that may prove dangerous to his person, his right to frisk
to remove the danger, arises.
The Commonwealth concedes that the only reason the car was
scopped was the absence of a current license plate. However,
the subsequent search and frisk of the person was not the
subject of an ill-founded hunch or whimsical on the part of
the officer as the appellant contends, nor did the search
constitute harrassment in any sense. The narrow basis of the
frisk or search was strictly and solely for the officers’ own
13a
protection. Such searches are encouraged by the Supreme
Court of the United States for the protection of law enforce-
ment officers. Terry v. Ohio, supra; Adams v. Williams,
407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
Frightening statistics form the foundation for the
authorization of self-protective searches by police officers:
"Figures reported by the Federal Bureau of In-
vestigation indicate that 125 policemen were mur-
dered in 1971, with all but five of them having been
killed by gunshot wounds. Federal Bureau of Inves-
tigation Law Enforcement Bulletin, Feb., 1972, p. 33.
According to one study, approximately 30% of police
shootings occurred when a police officer approached
a suspect seated in an automobile. Bristo, Police Of-
ficer Shootings--A Tactical Evaluation, 54 J. Crim.
L.C. & P.S. 93 (1963)." Id. at 148-149, n. 3.
The appellant contends that a question asked concerning
his religious background was fundamental error. This occurred
on cross-examination and was as follows:
"Q. Tell me, are you a good friend of Harry Mimms?
"A. I am an acquaintance of him, I know him.
"Q. You know him very well would you say?
"A. Yes, sir.
"Q. Are you both Muslims?
"A. Sir?
"Objection: Sir, I move for withdrawal of a juror.
"THE COURT: Overruled.
"Q. Are you both Muslims?
"A. Yes, sir.
"Q. In other words, when you say ‘Muslims’, follow-
ers of the Islam faith is that rignat?
™ Tae."
Clayton Morrison who so testified was the only witness
called by the appellant on his behalf. This questioning was
designed to show bias in favor of the appellant in that they
were close friends and members of the same religious sect.
The defendant took advantage of this fact to have the point
made that adherents of the sect have an obligation to testify
truthfully. The contention is without merit.
Ilia 15a
concealed deadly weapon. ? Post-trial motions were denied;
The charge was as a whole fair and impartial P.L.E., this appeal followed.
Criminal Law, $721.7. The Court reviewed the testimony on
both sides and the appellant complains about an isolated On cross-examination the Assistant District Attorney
statement concerning credibility of the police. But the Court was allowed to ask Morrison the following questions:
went on to say: "On the other hand, you may say that they
had no reason, that they just wanted to say that he did it. "Q. Tell me, are you a good friend of Harry Mimms?
Or they found two guns in the car and they thought it was
easier to say that he had a gun on him than to say they found "A. Yes, sir.
them under the dashboard. In any event, members of the jury,
it is for you to say. And you just say by unanimous verdict." "Q. You know him very well, would you say?
The appellant contended that the gun was found in the car,
while the police testified that they took the gun from his "A. Yes, sir.
person. It is evident that the jury believed the testimony
of the Commonwealth. "Q. Are you both Muslims?
Judgment of sentence affirmed. "A. Sir?
[Counsel for appellant]:
DISSENTING OPINION BY HOFFMAN, J.:
"Objection, sir. I move for withdrawal of a juror.
Appellant contends that the lower court erred in allowing
a defense witness to testify, on cross-examination, that "THE COURT: Overruled.
both he and appellant were of the Muslim faith.
[By the Assistant District Attorney]:
At approximately 9 a.m. on September 7, 1970, Philadelphia
police officers John Kurtz and Lester Milby observed appellant "Q. Are you both Muslims?
driving west on Baltimore Avenue in an automobile bearing
an expired license tag. The officers stopped the car in order "A. Yes, sir.
to issue a summons. Officer Kurtz asked the appellant to step
out of his car. Officer Kurtz testified that when appellant "Q. In other words, when you say 'Muslims,' fol-
stepped out of the car, he noticed a large bulge on appellant's lowers of the Islam faith, is that right?
hip under his jacket. He then frisked appellant, and seized
a loaded .38 caliber revolver from appellant's waistband. "A. Yes."
Officer Milby testified that he then frisked appellant's
passenger, Clayton Morrison, and found a .32 caliber revolver.+
In Pennsylvania, the legislature has specifically pro-
vided that "[n]o witness shall be questioned, in any judi-
At trial in the Philadelphia Common Pleas Court, both cial proceeding, concerning his religious belief; nor shall
appellant and Morrison testified as defense witnesses, and any evidence be heard upon the subject, for the purpose of
maintained that Morrison had brought both revolvers into affecting either his competency or credibility." Act of
the car. Morrison testified that the .38 revolver had April 23, 1909, P.L. 140, §3, 28 P.S. §313. Here, the
been under the car seat, and not on appellant's person,
at the time of the stop.
3 ;
On March 15, 1972, a jury found gppellant guilty of a Act of June 24, 1939, supra, n. 2, §416, as most recently
violation of the Uniform Firearms Act“ and carrying 4 amended February 25, 1972, P.L. 79, No. 27, $1, 18 P.S.
$4416; repealed by the Act of December 6, 1972, supra,
@ n. 2, §5(a), effective June 6, 1973; superseded by the
i Act of December 6, 1972, supra n. 2, §1, 18 Pa.C.S. §§907
Prior to appellant's trial, Morrison had pleaded guilty to 908.
charges of violation of the Uniform Firearms Act and carrying
a concealed deadly weapon. .
Pennsylvania's statute had been described as "a model of
. clarity” which "settles most of the questions left unsettled
Act of June 24, 1939, P.L. 872, §628, as amended; former a yes oe ee eee
18 P.S. $4628, repealed by the Act of December 6, 1972, P.L. .
1482, No. 334, $5(a), effective June 6, 1973; substantially
reenacted by the Act of December 6, 1972, supra, §1, 18 Pa.
C.S. $$6101 through 6119.
Commonwealth was clearly using the common religious affiliation
of appellant and Morrison as a means of impeaching Morrison's
credibility. Indeed, the lower court states in its opinion
that the testimony was introduced "to show the witness’
relationship with the defendant and put his credibility in
issue." (Emphasis supplied.)
Evidence concerning the religious beliefs of witnesses can
be admitted only where its relevance to the issues of the
case is so great as to outweigh any possibility of prejudice.°
Thus, in McKim v. Philadelphia Transportation Co., 364 Pa.
237, 72 A. 2d 122 (1950), three plaintiffs in a personal injury
action had specifically alleged in their complaints that their
injuries had prevented them from performing their duties as
ministers. On direct examination, one of the plaintiffs testi-
fied that she received an expense allowance when she was able
to perform a certain amount of work as a minister of the
Jehovah's Witnesses. On cross-examination, however, the
plaintiffs objected to all questions concerning the circum-
stances of their ordination or the duties which they performed
as ministers. The lower court overruled these objections
and the Supreme Court affirmed, noting that "[t]he purpose
{of the questions objected to] was to obtain substantive
information necessary to supply deficiencies in the testimony
given by plaintiffs in direct examination; if the answers
to these questions, properly allowed in cross-examination,
played any part in judging credibility, that effect was inci-
dental ...." 364 Pa. at 241, 72 A. 2d at 123. The Court
added that “[i]f the purpose of the cross-examination had
apparently been to create prejudice against the parties because
of their religious beliefs, the learned trial judge would
undoubtedly have sustained the objections." 364 Pa. at 241,
72 A. 2d at 123-124.
Here, the religious beliefs of appellant and his witness
were completely irrelevant to any issue involved in the
trial. They were never mentioned or alluded to anywhere on
direct examination.©® If the Commonwealth wished only to
(Footnote 4 continued)
in other states ..." McCormick, Handbook of the Law
of Evidence, §48 at 102 (2d ed. E. Cleary 1972). The
various state statutes are collected and discussed in 3A
Wigmore, Evidence §936 (Chadbourn rev. 1970).
5
See McCormick, Handbook of the Law of Evidence, supra,
n. 4, §48 at 101.
6
The fact that defense counsel on redirect examination had
Morrison testify that Muslims were under an obligation to
(Footnote continued on wext page)
17A
demonstrate appellant's friendship with Morrison, it could
have done so without invading the privileged area of religion.
Instead, it appears that the Commonwealth deliberately sought
to place before the jury the fact that appellant and the
only other defense witness belonged to a highly controversial
religious group.
The blatant means by which the religious affiliation of
appellant and his witness have been injected into this
case bring to mind the words of former Chief Justice MAXEY
in O'Donnell v. Philadelphia Record Co., 356 Pa. 307,
346-347, n. 5, 51 Aw 2d 775, 793-794, mn. 5 (1947) (dissenting
opinion), cert. denied, 332 U.S. 766: “This is the first
time the writer ever heard of any attorney injecting into a
case the religious affiliations of either a litigant or 5s
witness .... If a witness' religious belief cannot properly
be injected into a judicial proceeding, a litigant’s religious
belief certainly cannot be .... When plaintiff's counsel
asked [defendant's chief executive] as to his knowledge of
O'Donnell's religious affiliation and stated that affiliation,
the trial judge should have immediately declared a mistrial.
No verdict which may have been brought about, or even in-
fluenced by a consideration of a litigant's religious affili-
ations should be slloweg to stand in a court of justice."
(Emphasis in original.)
As appellant's trial turned solely on the credibility of
himself and his witness, and as their credibility was im-
properly impeached on religious ground contrary to the letter
and intent of the Act of April 23, 1909, supra, I believe
that appellant must be granted a new trial.
JACOBS and SPAETH, JJ., join in this dissenting opinion.
(rootnote 6 continued)
tell the truth could hardly amount to an opening of the
door on the issue of religion. The Commonwealth intro-
duced the issue of religion only after the defense had
completed its last direct examination, and defense
counsel's question on redirect, after his motion for a
mistrial had been denied, was only an attempt to minimize
the effects of the Commonwealth's improper cross-examination.
Justices STERN and PATTERSON concurred in this dissent.
The Majority in O'Donnell did not discuss this issue,
perhaps because it had not been specifically raised on
appeal as an assignment of error.
18a
Appenpix D POLICE DEPARTMENT
seh CITY OF PHILADELPHIA | ooo ous
Rm. 212
May ll, 1977
Mr. Mark Sendrow
Assistant District Attorney
2300 Centre Square West
Philadelphia, Pa. 19102
Dear Mark:
In reply to your request, attached please find
statistics indicating the number of incidents in which
police were assaulted during the course of conducting
vehicle investigations in Philadelphia during 1976 as
well as the first three months of 1977.
Also, the importance of the traffic investigation
stop from the view of the police officer's safety was
outlined in your original brief, which indicated the
number of law enforcement officers killed in recent
years conducting car stops, also indicates the critical
need for limited search approaches.
If you need any additional data please call upon
me.
Sincerely,
wo Ht 2 Vren___-
JAMES C. HERRON
Chief Inspector
Staff Services Bureau
JCH:bl
Attach. RECEIVED
MAY 1 6 1977
PHILADELPHIA, PENNSYLVANIA 19106
January
February
March
April
May
June
July
August
September
October
November
December
Totals:
19a
ASSAULTS ON POLICE
VEHICLE INVESTIGATION AS ASSAIILTS
ANNUAL 1976 1ST THREE MONTHS 1977
A. B. Cc. A. B. Cc.
Vehicle' Percent- Vehicle Percent-
Total Investi- age Total Investi- age
Assaults gations BofA Assaults gations BofA
Reported Only (%) Reported Only (%)
179 14 7.8% 151 15 9.9
226 29 12.8% 161 21 13.0
192 17 8.9% 211 26 12.3
170 20 11.8%
184 13 7.1%
266 17 6.4%
219 12 5.5%
153 3 2.0%
178 ll 6.2%
215 5 2.3%
193 18 9.3%
172 10 5.8%
2347 169 “7.28 523 62 11.9
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.