Com. v. Germann

• Decision Date: 30 March 1993
• Citation: 621 A.2d 589,423 Pa.Super. 393
• Parties: COMMONWEALTH of Pennsylvania v. John E. GERMANN, Appellant.
• Court: Pennsylvania Superior Court

Page 589

621 A.2d 589

423 Pa.Super. 393

COMMONWEALTH of Pennsylvania v. John E. GERMANN, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 19, 1992.

Filed Jan. 15, 1993.

Reargument Denied March 30, 1993.

Robert F. Pappano, Asst. Public Defender, Brookhaven, for appellant.

Louis G. Stesis, Asst. Dist. Atty., Media, for Com.

Before OLSZEWSKI, BECK and KELLY, JJ.

OLSZEWSKI, Judge:

John Germann appeals from the judgment of sentence entered against him in the Court of Common Pleas of Delaware County following his conviction for possession of a controlled substance, ¹ possession of drug paraphernalia, ² operation of a vehicle without inspection, ³ and violation of the use of a certificate of inspection. ⁴ Germann was sentenced on February 13, 1992, to imprisonment of 30 days to 6 months on the possession conviction and a consecutive 12 months' probation on the drug paraphernalia conviction. On appeal, Germann contends that the trial court erred in denying his motion to suppress physical evidence. We agree, and find that evidence seized during a search of Germann's vehicle should have been suppressed as the product of an illegal search and seizure.

The facts adduced by the trial court are supported by the record, and we adopt those findings here:

On March 29, 1991, at approximately 8:15 a.m. Officer Matthew Egan of the Media Police Department was on routine patrol in the area of State Street and Providence Road. (N.T. 10/29/91, at 2-3.)

While on patrol, Officer Egan observed the defendant, John Germann, operating a gray Datsun 280Z automobile that was in poor condition and with what appeared to be false or fraudulent inspection stickers. (N.T. 10/29/91, at 2-3.)

Officer Egan turned on his overhead flashing lights and pulled the Defendant over in the 200 block of East State Street in order to view the inspection sticker. Upon further visual examination, Officer Egan determined that both the state inspection sticker and the state emission sticker were fraudulent and therefore illegal. (N.T. 10/29/91, at 10-13.) At that point, Officer Egan asked the defendant for his operators license [sic] and registration. (N.T. 10/29/91, at 10.) The defendant gave Officer Egan his documents after which the defendant was asked to step from the vehicle. (N.T. 10/29/91, at 12.)

Officer Egan conducted a search of the Defendant's vehicle that yielded two more illegal inspection stickers, Topps, [sic] rolling papers and multiple glassine baggies, one of which contained a white powder suspected to be cocaine. (N.T. 10/29/91, at 15-17.) It was later determined that the substance contained in the baggie was indeed cocaine. (N.T. 10/29/91, at 18.) The defendant was placed under arrest and his vehicle was towed. Prior to towing the vehicle, and pursuant to a normal procedure of the Media Police Department, an inventory search of the vehicle was conducted by Officer Egan. (N.T. 10/29/91, at 22-23.) This inventory search did not reveal anything of note. (N.T. 10/29/91, at 23.)

Trial court opinion, at 1-2.

Following the preliminary hearing and arraignment, Germann filed a motion to suppress and a hearing was held on October 29, 1991, before the Honorable Anthony R. Semeraro. Germann claimed that the search conducted by Officer Egan was impermissible as it was not incident to a valid arrest and was not supported by probable cause. Judge Semeraro ruled that the evidence was admissible. A trial was held and Germann was convicted. Post-trial motions were denied. This appeal followed.

Germann does not challenge the trial court's finding that his vehicle was lawfully stopped for displaying a fraudulent inspection sticker in violation of 75 Pa.C.S.A. § 4703 of the Motor Vehicle Code. Accordingly, the issues presented for our review are: (1) whether the search of Germann's automobile was justifiable as an automobile search based on probable cause; or, (2) whether the evidence seized would inevitably have been discovered pursuant to a valid inventory search. Initially, we note that the our role in reviewing an order granting or denying a motion to suppress is:

to determine whether the record supports (1) the suppression court's findings, and (2) the legitimacy of the inferences and legal conclusions drawn from those findings ... [w]hen the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Martinson, 368 Pa.Super. 130, 533 A.2d 750 (1987) (citations omitted).

In denying Germann's motion to suppress evidence, the trial court first determined that probable cause existed to justify the search of Germann's vehicle. While searches and seizures conducted in the absence of a warrant are generally considered unreasonable under the Fourth Amendment, the trial court noted that "there is an established departure from the warrant requirement for certain automobile searches." Trial court opinion, at 6. This departure is based on the practical problems in obtaining a warrant associated with the inherent mobility of the automobile, and on the diminished expectation of privacy relating to their open construction, their function, and their subjection to state regulation. Id. We note, however, that our Supreme Court has warned that "the general requirement that a warrant be obtained is not lightly to be dispensed with, and the burden is on those seeking an exemption from the requirement to show a need for it." Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970) (quoting Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)).

Our courts have sanctioned the warrantless search of a vehicle, stopped for an ordinary traffic offense, only in those cases where independent probable cause was established to justify the search. We have persistently admonished, however, that stopping an automobile or arresting a driver for an ordinary traffic offense, does not, without more, permit a warrantless search of the vehicle. Dussell, supra; Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991). The validity of a warrantless automobile search incident to a summary offense depends on the reasonable cause the seizing officer has to believe that the contents of the automobile offend the law; not the right to arrest. Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971); Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988) (collecting cases).

To justify [a warrantless] search, even though a movable vehicle is involved, an officer must have independent probable cause to believe that felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.

Bailey, at 300, 545 A.2d at 947 (citations omitted) (emphasis added). The evidence required to establish "probable cause" must be more than a mere suspicion or good faith on the part of the police officer. Dussell, 439 Pa. at 396, 266 A.2d at 662 (citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)).

In Bailey, we sanctioned the warrantless search of a vehicle after the driver had been stopped for violating the speed limit. As appellant reached for identification from his pocket, the officer observed a clear plastic bag containing a white substance which the officer believed to be a controlled substance. This observation, coupled with the fact that the officer detected a "chemical-type" smell, established probable cause to search the passenger area and trunk. Bailey at 296, 545 A.2d at 945; see also Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991) (probable cause to search vehicle stopped for motor vehicle violation arose after police detected odor of marijuana and beer emanating from defendant's vehicle); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (probable cause to search vehicle stopped for routine traffic violation arose after police observed marijuana seeds and leaves inside the vehicle).

In Trunzo, supra, we concluded that the officer had probable cause to search the defendant's trunk for alcohol, following defendant's arrest for underage drinking. We found that the officer had reason to believe that evidence of a crime was concealed within the vehicle after his initial investigation yielded that defendant was nineteen years old, had the smell of alcohol on his breath, and was standing at the open door of the driver's side of the vehicle. Moreover, the officer had received several complaints of underage drinking at the inn where the defendant was located and was responding to a call from a constable reporting that there was a problem.

Applying the standard enunciated in these cases to the present case, we conclude that the trial court erred in finding that there was independent probable cause for police to search Germann's vehicle after stopping him for an ordinary traffic violation. The trial court predicated its probable cause finding upon Officer Egan's observation that the fraudulent stickers discovered on Germann's vehicle purported to expire that month, and that the vehicle was in very poor condition. (N.T., 10/29/91, at 7-18.) Officer Egan concluded that the vehicle would therefore be unable to pass a valid inspection. Id. Accordingly, Egan surmised that additional fictitious inspection stickers would have to be affixed to the car's windshield within a matter of days and it was likely that these stickers would be inside Germann's vehicle. Id.

In support of its finding that Officer Egan had independent probable cause to search Germann's vehicle, the trial court relied on Commonwealth v. Duell, 305 Pa.Super. 431, 451 A.2d 724 (1982). In Duell, police stopped defendant for making an illegal turn. As defen...