Commonwealth v. One 1955 Buick Sedan

• Decision Date: 13 June 1962
• Citation: 198 Pa.Super. 133,182 A.2d 280
• Parties: COMMONWEALTH v. ONE 1955 BUICK SEDAN. Appeal of Kenneth W. SCOTT.
• Court: Pennsylvania Superior Court

182 A.2d 280

198 Pa.Super. 133

COMMONWEALTH v. ONE 1955 BUICK SEDAN.

Appeal of Kenneth W. SCOTT.

Superior Court of Pennsylvania.

June 13, 1962.

Norris, Green, Harris & Higginbotham, E. K Nichols, Jr., Philadelphia, for appellant.

Russell C. Wismer, Sp. Deputy Atty. Gen George G. Lindsay, Asst. Atty. Gen., David Stahl, Atty. Gen Harrisburg, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

ERVIN, Judge.

A hurricane named Mapp v. Ohio, ^[1] swept over our fair land last June. The present case is one of the numerous appeals coming to our Court as part of the backlash. It now becomes our duty to endeavor to reassemble the machinery for law enforcement in our Commonwealth.

It is apparently the view of many criminal defendants, as well as their counsel, that they may use Mapp as an escape hatch to be relieved from punishment for crimes of which there can be no reasonable doubt as to guilt. The Mapp case involved a search of a woman's dwelling house and pretty rough treatment was accorded to her by the police officers. It flatly decided that evidence obtained by searches and seizures in violation of the United States Constitution is, by that same authority, inadmissible in a state court. To put it another way, the right of persons and houses to be secure from unreasonable searches and seizures, guaranteed by the fourth amendment of the Federal Constitution, was made applicable to the states through the due process clause of the 14th amendment.

This proceeding was instituted by the Pennsylvania Liquor Control Board seeking a court order for forfeiture of a motor vehicle used in the illegal transportation of white untaxed whiskey. A motion to suppress the evidence and have the motor vehicle returned to the owner was presented to the court. The court below overruled the motion to suppress the evidence and ordered the forfeiture of the motor vehicle. The owner appealed.

Two Philadelphia police officers testified they had a house in Philadelphia under observation for a period of four days (two days in each week prior to the arrest and seizure) as a result of information that there was an odor of alcohol in the area. Their observations led to the conclusion that a still was in operation at 7253 Saybrook Avenue. On the day of the arrest and seizure, September 14, 1961, while the property was under observation by the officers, the owner of the car, Scott, drove up to the property and entered. The officers knew that Scott 'had a previous record of alcohol.' The court below improperly excluded this testimony. The motor vehicle was being tried, not Scott. This evidence was admissible to show what the officers took into consideration on the question of probable cause: Husty v. United States, infra. Scott remained there about one hour during which time he made several trips from the house to the car and back again. On his last trip he carried a carton which he placed on the back seat of the car and drove away. The officers followed and stopped Scott about a block and a half away for investigation.

On the back seat of the car the officers found four one gallon jugs of a white untaxed whiskey. Scott was arrested and his car seized. The arrest and seizure were made without a warrant. After the arrest the officers secured a search warrant for premises 7253 Saybrook Avenue, where they found a still.

At the time Scott was stopped by the officers he said: 'That's all I have. That's it.' At no time did Scott object to the search of his car.

The procedure for the forfeiture of this car is provided by § 601 of the Liquor Code (as amended by the Act of April 20, 1956, 47 P.S. § 6-601, and in effect states: 'No property rights shall exist in any liquor, alcohol or malt or brewed beverage illegally manufactured or possessed, or in any still, equipment, material, utensil, vehicle, boat, vessel, animals or aircraft used in the illegal manufacture or illegal transportation of liquor, alcohol or malt or brewed beverages, and the same shall be contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided.'

The fourth amendment of the United States Constitution provides: 'The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrant 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.'

A guarantee of freedom from unreasonable searches and seizures has been construed by the Supreme Court of the United States in a number of cases recognizing the difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because a vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. See Annotation in 92 L.Ed. 221.

The leading case in this field is Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. 543, wherein Chief Justice Taft said: 'On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.'

The Carroll case was one in which Federal officers stopped and searched a car they knew to be involved in bootlegging. They had no search warrants but seized liquor found in the automobile. In that case the Supreme Court sustained the conviction of the defendants who were illegally transporting liquor in the automobile. At p. 153, 45 S.Ct. at p. 285 it was further said:

'We have made a somewhat extended reference to there statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

'Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider...