Com. v. Dressner

• Decision Date: 27 February 1975
• Citation: 232 Pa.Super. 154,336 A.2d 414
• Parties: COMMONWEALTH of Pennsylvania v. Gerald DRESSNER, Appellant.
• Court: Pennsylvania Superior Court

Page 414

336 A.2d 414

232 Pa.Super. 154

COMMONWEALTH of Pennsylvania v. Gerald DRESSNER, Appellant.

Superior Court of Pennsylvania.

Feb. 27, 1975.

Petition for Allowance of Appeal Denied July 7, 1975.

Lenard H. Sigal, Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge.

This appeal arises from the lower court's finding appellant guilty of the illegal possession of narcotics, for which a sentence of six to twelve months was imposed. Appellant Dressner now challenges the refusal of the lower court to suppress the evidence produced by the search of his automobile, arguing that the warrantless search was not a product of a valid consent.

In August of 1971, the Internal Affairs Bureau of Philadelphia Police Department received information from another arrested policeman that appellant, Sergeant Dressner, was involved in the mishandling of confiscated narcotics which resulted in their sale by police by drug addicts. Because of this information, two inspectors for the IAB were sent to Dressner's home to bring him downtown for questioning. Their superiors also instructed the inspectors to assure that Dressner brought his automobile with him since they had reason to believe he had concealed two packets of heroin in a magnetic key case in his car.

When the inspectors arrived at Dressner's home they found him babysitting his children. After they explained the situation to Dressner, he agreed to drive downtown to answer questions. He then procured the services of a babysitter and drove his car to IAB headquarters.

After some brief questioning, the inspectors asked Sergeant Dressner if he would mind if they searched his automobile. He said he would not mind, and moved his car into the garage area of the building and opened the trunk. After searching the car somewhat less than rigorously, the inspectors were unable to find any contraband. Dressner and the two inspectors then returned upstairs. During this period of time, the IAB determined that they should try another more thorough search of the car. Once again they asked Deressner if he would mind if they searched his car, and once again he consented. Again he drove his car into the garage and unlocked the trunk.

Because it was cluttered with lamp parts and fixtures, the trunk had not been intensively searched the first time. On this second search, however, the inspectors completely emptied the trunk With the aid of Dressner himself. One inspector then climbed into the trunk and ran his hand along crevices near the fenders and tail-light assembly. The inspector then felt a plastic bag lodged down in one of the aperturnes by the tail-light. When the other inspector removed the bag, they discovered that it contained 6 bundles--each bundle consisting of twenty-five packets of heroin. Sergeant Dressner was then placed under arrest.

The law has recognized that custody is an important circumstance in determining whether a consent was voluntarily given. See generally Annotation, 9 A.L.R.3d 858 (1966). Thus, the voluntariness of a custodial consent will not be lightly inferred. United States v. Ellis, 461 F.2d 962 (2d Cir. 1972), cert. denied 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115. However, despite the fact that the voluntariness of a custodial consent is suspect, no one fact has talismanic significance, and voluntariness may be established by the Commonwealth if all the facts and circumstances indicate that the consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Furthermore, this Court is properly reluctant to examine the facts and circumstances De novo without giving due weight to the advantage the hearing court has had by observing the demeanor of the witnesses and the defendant. As some courts have stated with specific regard to reviewing custodial consents 'The trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal. He has the advantage of seeing and hearing the witnesses so that he cannot only evaluate their credibility but also can gain a 'feel' of the case which the cold record denies to a reviewing court.' State v. King, 44 N.J. 346, 209 A.2d 110 (1965). See also United States v. Page, 302 F.2d 81 (9th Cir. 1962); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970).

In evaluating the voluntariness of a custodial consent, the courts have sensibly looked at a variety of factors which indicate a voluntary decision by the suspect to forego the letter of his Fourth Amendment rights. Many of those factors are present in the instant case and clearly demonstrate the validity of Dressner's consent herein.

First, it has been frequently held that when a suspect has aided an investigation or search, as by providing a key, his consent was very likely voluntarily given. Robinson v. United States, 325 F.2d 880 (5th Cir. 1964); United States v. Katz, 238 F.Supp. 689 (D.C.N.Y.1965); James v. State, 223 So.2d 52 (Fla.1969); State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966); State v. King, supra.

Second, the education, intelligence and experience of the consenter should be considered, including those characteristics apparent from the defendant's demeanor at the suppression hearing. United States v. Alberti, 120 F.Supp. 171 (D.C.N.Y. 1954); United States v. Katz, supra. Thus, if the defendant's background indicates his understanding of investigating procedures or his understanding of his constitutional rights, the fact that he was in custody when he consented will not receive controlling weight. Hubbard v. Tinsley, 350 F.2d 397 (10th Cir. 1965) (knowledgeable in investigatory procedures); Grillo v. United States, 336 F.2d 211 (1st Cir. 1964), cert. denied 379 U.S. 971, 85 S.Ct. 669, 13 L.Ed.2d 563 (attorney); Tatum v. United States, 321 F.2d 219 (9th Cir. 1963) (private investigator).

Third, if the facts indicate that the consenter believed the evidence to be so well concealed that it probably would not be discovered, his consent was probably voluntarily given. Grice v. United States, 146 F.2d 849 (4th Cir. 1945); Application of Fried, 68 F.Supp. 961 (D.C.N.Y.1946), rev'd on other grounds 161 F.2d 453 (2d Cir. 1947), cert. denied 331 U.S. 858, 67 S.Ct. 1751, 91 L.Ed. 1865. State v. King, supra; Combs v. State, 237 Md. 428, 206 A.2d 718 (1965); Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264 (1964); People v. Brown, 205 Cal.App.2d 188, 22 Cal.Rptr. 835 (1962); People v. Robinson, 149 Cal.App.2d 282, 308 P.2d 461 (1956); People v. Overton, 293 Mich. 44, 291 N.W. 216 (1940); State v. McLennan, 40 Idaho 286, 231 P. 718 (1925); Davis v. State, 226 So.2d 257 (Fla.1969).

Fourth, the fact of some prior cooperation by the consenter which produced no incriminating evidence indicates the voluntariness of his consent. United States v. Katz, supra.

And finally, a consent will be held valid where it can be shown that the consenter was advised of his constitutional rights prior to giving his consent. Sleziak v. State, 454 P.2d 252 (Alaska 1969), cert. denied 396 U.S. 921, 90 S.Ct. 252, 24 L.Ed.2d 202; State v. McPeak, 243 N.C. 243, 90 S.E.2d 501 (1955), cert. denied 351 U.S. 919, 76 S.Ct. 712, 100 L.Ed. 1451.

Not one, but all of those factors which indicate the voluntariness of a consent were present in the instant case. The only literal omission was a statement by the inspectors advising Dressner of his constitutional rights. However, Sergeant Dressner was an experienced policeman who doubtless had full knowledge of the constitutional rights which attach to one who has become the focus of a criminal investigation. As the Circuit Court stated in Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir. 1968):

'To advise a person with experience or training in this field that he has the right to refuse consent would be a waste of words.' See also Schneckloth v. Bustamonte, 412 U.S. at 864, 93 S.Ct. 2041. ¹

Indeed, the only factor which tended to indicate an involuntary consent was the attendant custodial element. ² In the face of the overwhelming evidence indicating a voluntary consent, it would be gross error for this court to reverse the hearing court's denial of appellant's motion to suppress. In fact, such a result can stand only upon the ground that it is impossible for a custodial consent to be voluntary--a position that no jurisdiction in this country has heretofore taken.

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.

HOFFMAN, Judge (dissenting).

The appellant claims that he is entitled to relief from a criminal conviction of illegal possession of narcotics because the judge at the suppression hearing erroneously denied his motion to suppress physical evidence seized from appellant's automobile.

In August, 1971, the Internal Affairs Bureau of the Philadelphia Police Department ('IAB') was conducting in investigation of the mishandling of narcotics by members of the police department. During the investigation, the police arrested Carl Johnson, a police officer, who alleged that appellant, a fellow officer, had on previous occasions withheld narcotics. Pursuant to his superior's orders to pick up the appellant, Inspector Charles Fragassi and an I.A.B. lieutenant brought appellant to I.A.B. headquarters at 3rd and Race Streets in Philadelphia. The officers requested specifically that appellant and the lieutenant drive to headquarters in the appellant's automobile.

Once at headquarters, appellant was placed in an office and advised that Johnson had informed the police about appellant's illegal retention of seized drugs. Thereafter, one of the investigating officers asked appellant whether he would permit a search of his automobile, parked on the street outside of headquarters. Appellant...