# Petition — Pennsylvania v. Mimms > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2062%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 106 ## Text Supreme Court, U. Se wm FILED w& } JUN 23 1977 q i \ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2062%3A1. Public record. Not legal advice.