Com. v. Czajkowski

• Decision Date: 14 June 1962
• Citation: 198 Pa.Super. 511,182 A.2d 298
• Parties: COMMONWEALTH of Pennsylvania v. John CZAJKOWSKI, Appellant.
• Court: Pennsylvania Superior Court

Page 298

182 A.2d 298

198 Pa.Super. 511

COMMONWEALTH of Pennsylvania v. John CZAJKOWSKI, Appellant.

Superior Court of Pennsylvania.

June 14, 1962.

Application for Allocatur Denied Aug. 13, 1962.

Alvin D. Capozzi, Capozzi & Apple, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Dist. Atty., Pittsburgh, for appellee.

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

RHODES, President Judge.

Defendant has appealed from a conviction and sentence on a charge of burglary. The conviction rested in part on circumstantial evidence which showed that defendant's car was observed at the scene of the crime. Furthermore, paint chips and burglary tools were found by the police in defendant's car parked in front of the police station following defendant's arrest. At the trial on June 7, 1961, defendant moved to exclude such evidence for the reason that it was allegedly obtained under circumstances amounting to an unreasonable search and seizure. The court below refused to exclude the evidence, and subsequently overruled defendant's motions for new trial and in arrest of judgment based on such grounds. On appeal defendant raises the single question that the conviction, based on illegally obtained evidence, cannot be sustained under the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, handed down on June 19, 1961.

Appellant made no preliminary motion. He first objected to the evidence allegedly obtained through an unreasonable search and seizure when offered by the Commonwealth at the trial. The decision in Mapp v. Onio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, holds only that evidence obtained as the result of an unreasonable search and seizure cannot be used as the basis for conviction in a state court. The Mapp case does not purport to prescribe the procedure by which the legality of evidence obtained through search and seizure can be raised. The Supreme Court of the United States has expressly stated it is incumbent upon the states to establish their own procedure in civil and criminal matters consistent with due process. 'The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States.' Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 91 L.Ed. 172, 175. See Kariher's Petition (No. 1), 284 Pa. 455, 470, 131 A. 265; Eiffert v. Pennsylvania Central Brewing Company, 141 Pa.Super. 543, 549, 15 A.2d 723.

It is clear that objection to evidence allegedly illegal as having been obtained through an unreasonable search and seizure should be made promptly. The practice under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. is reviewed by Mr. Justice Frankfurter in the recent case of DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (March 19, 1962). The gist of the federal practice appears to be that the motion to suppress evidence allegedly obtained illegally through an unreasonable search and seizure should be made prior to trial unless defendant was not aware of the grounds for the motion. ¹ It is necessary to decide at this time the procedural point of whether defendant's objection to the questioned evidence was timely and proper as we agree with the court below that the search and seizure involved were not unreasonable, and that the evidence objected to on this ground was not inadmissible.

Whether a search and seizure were, or were not, unreasonable, must be determined from the circumstances in each particular case. Com. v. Hunsinger, 89 Pa.Super. 238, 241; Com. v. Dugan, 143 Pa.Super. 383, 386, 18 A.2d 84; United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653; Com. v. Richards, Pa.Super., 182 A.2d 291. The undisputed evidence produced at the trial by the Commonwealth established the following facts: albert's Department Store on Route 8, Shaler Township, Allegheny County, was burglarized on Saturday night, January 9, or early Sunday morning, January 10, 1960, and about $1,150 in cash and miscellaneous items were stolen. A police officer patrolling the vicinity observed a green Oldsmobile in a peculiar position on the parking lot of a tavern located about 100 yards south of the department store. The Oldsmobile was empty and parked at the curb facing the highway some distance from the tavern. This was about 12:30 a. m. Returning about 3 a. m., the officer noticed the same car parked in the same position with a man in it. As he passed northward, the officer saw the car lights being flashed on and off. Turning around, the officer then saw two men in the Oldsmobile as he passed it about two minutes later. Thereafter, the Oldsmibile was observed leaving the lot and moving northward to a point opposite the department store and stopping parallel with its parking lot when, as the officer again passed, he saw three men in the car. From the license number observed by the officer, it was determined that the Oldsmobile was registered in the name of appellant. Subsequently, on Monday, January 11, 1960, appellant was apprehended and, accompanied by an officer, drove his automobile to the police station where he was placed under arrest. While appellant was being questioned the police examined his car which was parked outside the police station. Material from the car floor and sear was identified at trial by experts as pieces of firewall and an inner plate of the safe which had been opened during the burglary. Other incriminating evidence was found in the car. Eleven screwdrivers and two chisels were also found in the car, together with paint chips on one screwdriver identified as coming from a small safe involved in the burglary. The above evidence was admitted over appellant's objection.

An officer may arrest without a warrant where he had probable cause and reasonable grounds to suspect defendant has committed a felony. Com. ex rel. Bandi v. Ashe, 367 Pa. 234, 238, 80 A.2d 62; Com. ex. rel. Miller v. Myers, 187 Pa.Super. 565, 568, 146 A.2d 145; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Under the circumstances observed by the police, including the presence of appellant's car at the scene and time of the robbery, the officers clearly had probable cause and reasonable grounds to arrest appellant without a warrant.

A search incident to a lawful arrest is reasonable within the meaning of the constitutional mandate. United States v. Rabinowitz, supra, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 654; Draper v. United States, supra, 358 U.S. 307, 314, and cases cited footnote 6, 79 S.Ct. 329, 3 L.Ed.2d 327. An officer making a valid arrest may search the prisoner's car and take from it any articles which were the fruits or facilities of the crime. Com. ex rel. Spencer v. Ashe, 364 Pa. 442, 445, 71 A.2d 799; Com. ex rel. Schuch v. Burke, 174 Pa.Super. 137, 140, 100 A.2d 122. An automobile as a vehicle of transport which moves about readily is in a distinct category on the question of a reasonable search and seizure. Search of an automobile without a warrant is lawful where probable cause exists, and where the facts and circumstances would lead a reasonably prudent person to conclude that the law is being violated. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280...