Com. v. Kilgore

• Decision Date: 23 November 1994
• Citation: 650 A.2d 462,437 Pa.Super. 491
• Parties: COMMONWEALTH of Pennsylvania v. Randy Lee KILGORE, Appellant.
• Court: Pennsylvania Superior Court

Page 462

650 A.2d 462

437 Pa.Super. 491

COMMONWEALTH of Pennsylvania v. Randy Lee KILGORE, Appellant.

Superior Court of Pennsylvania.

Argued May 11, 1994.

Filed Nov. 23, 1994.

Allen H. Smith, York, for appellant.

Glenn S. Coffey, Asst. Dist. Atty., York, for Com., appellee.

Before WIEAND, SAYLOR and CERCONE, JJ.

WIEAND, Judge:

Randy Lee Kilgore was tried by jury and was found guilty of delivery of cocaine and possession of cocaine with intent to deliver. Post-trial motions were denied, and Kilgore was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than eight years. On direct appeal from the judgment of sentence, Kilgore challenges trial and pre-trial rulings made by the trial court.

With the aid of Scott Winter, a suspect in another criminal matter, arrangements were made by state police to purchase from Kelly Jo Kilgore, the former wife of the defendant, Randy Lee Kilgore, an "eighth kilo" (approximately four and one-half ounces) of cocaine in the parking lot of the Brogue General Store in Chanceford Township, York County, on July 6, 1991. At or about 7:00 p.m. on that date, Winter and Kelly met in the parking lot, where Winter informed Kelly that he had a buyer waiting "up the road" and wanted an ounce of cocaine. The "buyer" wanted to examine this cocaine, he said and, if he were satisfied, Winter would buy an additional three and one-half ounces on his behalf. Winter then paid Kelly the sum of $1,300.00 from funds which had been supplied by the police, and Kelly got back in her car and drove away to get the cocaine.

While under surveillance by police in an unmarked car, Kelly drove to the home of her father, approximately a mile away. There, she exited her car and met her husband, Randy Kilgore. Both were observed as they walked toward a pickup truck which had been parked in the driveway. The surveilling policeman then lost sight of the Kilgores as he passed the home and turned his vehicle around out of sight of the home. When he returned, he saw the Kilgores walking away from the truck. Kelly then got into her car and returned to the Brogue General Store, where she delivered approximately an ounce of cocaine to Winter. He signalled the waiting police, who then moved in and placed Kelly under arrest. A search of her person produced a small quantity of cocaine and drug paraphernalia, but she did not have the $1,300.00 dollars which Winter had paid to her or the additional cocaine which Winter had expressed a desire to purchase.

Police then went to the home of Kelly's father, Otis Brown, where Trooper Kurt Voggenreiter went to the back door. The back door was open, and through a screen door he could see the interior of the kitchen. When he saw someone run from the kitchen, he announced the presence of police and entered. He found Randy Kilgore in the living room and placed him in the custody of other police personnel who had entered the kitchen. With the consent of Otis Brown, the owner, the premises were then searched, but neither cocaine nor the money paid to Kelly Kilgore during the prior cocaine transaction was discovered.

Without a warrant or consent of the owner, other police conducted a search of Randy Kilgore's truck, which was parked at the rear of the residence. They found several small bags of cocaine in a beverage cup on the front floor of the truck. The cocaine was later determined to weigh approximately three and one-half ounces. Randy Kilgore was then arrested and placed in the back of a police vehicle. He later told police that the money they were seeking was under the living room carpet. There they found $2,100.00, which included $1,300.00 in pre-recorded bills which had been paid to Kelly Kilgore.

The trial court refused to suppress the cocaine found in Randy Kilgore's truck, and this, it is argued on appeal, was error. Our standard of review of this issue was stated in Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993), as follows:

In conducting appellate review of the ruling of the suppression court, this Court:

'must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.'

Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). See also: Commonwealth v. O'Shea, 523 Pa. 384, 395, 567 A.2d 1023, 1028 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); Commonwealth v. Hughes, 521 Pa. 423, 438-439, 555 A.2d 1264, 1271-1272 (1989).

Id. at 473, 632 A.2d at 1320.

With respect to searches of motor vehicles, the Pennsylvania Supreme Court has said, in Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985), the following:

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978), there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the "diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations." Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); see also, South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1979). Accordingly, as stated by this Court in Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971):

To justify ... a [warrantless] search ..., an officer must have independent probable cause to believe that a 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.

Id. at 101, 275 A.2d at 52; see also, Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972) citing Chambers v. Maroney, [399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ] supra; Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971); Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970) citing Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Thus, where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible.

Id. at 7-8, 493 A.2d at 1349. See also: United States v. McGlory, 968 F.2d 309, 343 (3d Cir.1992); United States v. Salmon, 944 F.2d 1106, 1123 (3d Cir.1991), cert. denied, Washington v. United States, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); Commonwealth v. Germann, 423 Pa.Super. 393, 398-399, 621 A.2d 589, 592 (1993).

"The level of probable cause necessary for a warrantless search of an automobile is the same as that needed to obtain a [search] warrant." Commonwealth v. Talley, 430 Pa.Super. 351, 357, 634 A.2d 640, 643 (1993); Commonwealth v. Pleummer, 421 Pa.Super. 51, 56, 617 A.2d 718, 721 (1993), allocatur denied, 536 Pa. 622, 637 A.2d 282 (1993). In Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991), the Pennsylvania Supreme Court explained:

In this Commonwealth, the standard for evaluating whether probable cause exists is the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). Applying that test to the within case, the veracity and basis of knowledge of those persons supplying hearsay information must be examined to determine whether there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Commonwealth v. Baker, supra, 513 Pa. at 26, 518 A.2d at 803.

Id. at 272-273, 585 A.2d at 990. "Once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of a vehicle and inadequate time to obtain a search warrant render a warrantless vehicle search proper even when the accused is in police custody." Commonwealth v. Elliot, 416 Pa.Super. 499, 504, 611 A.2d 727, 729 (1992), allocatur denied, 534 Pa. 646, 627 A.2d 177 (1993). After probable cause exists, the police are not required to watch over or immobilize a vehicle while a search warrant is obtained. See: Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383-184 (1988); Commonwealth v. Camacho, 425 Pa.Super. 567, 578-580, 625 A.2d 1242, 1248-1249 (1993).

The suppression court found that police had probable cause to search appellant's truck. The...