Com. v. One 1958 Plymouth Sedan

• Decision Date: 15 November 1962
• Citation: 186 A.2d 52,199 Pa.Super. 428
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. ONE 1958 PLYMOUTH SEDAN, in Possession of McGonigle.
• Court: Pennsylvania Superior Court

Page 52

186 A.2d 52

199 Pa.Super. 428

COMMONWEALTH of Pennsylvania, Appellant, v. ONE 1958 PLYMOUTH SEDAN, in Possession of McGonigle.

Superior Court of Pennsylvania.

Nov. 15, 1962.

Application for Allocatur Granted March 8, 1963.

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

Louis Lipschitz, Philadelphia, for appellee.

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

ERVIN, Judge.

On December 16, 1960 two enforcement officers of the Pennsylvania Liquor Control Board were stationed on the Admiral Wilson Boulevard in New Jersey, the approach to the Benjamin Franklin Bridge leading into Philadelphia, Pennsylvania. At 6:30 a. m. on the above date the officers saw a black Plymouth four-door sedan, bearing Pennsylvania registration plates, approaching the bridge. The car was quite low in the rear and the officers followed the car across the bridge into Philadelphia and on Vine Street, west of Sixth Street, in Philadelphia, the officers stopped the car, identified themselves and questioned the operator, George McGonigle. In the rear of the car and in the truck the officers found 375 bottles (31 cases) of high priced whiskey and wine not bearing Pennsylvania tax seals. The operator of the car, McGonigle, stated to the officers that he had been hired to deliver this liquor from Margate to Philadelphia for $30.00, that he knew it was unlawful but took the chance. McGonigle made no objection to the search of the automobile. The car and liquor were seized and McGonigle was arrested. The officers had neither a search nor a body warrant. A petition for the forfeiture of the car was filed in the court below and, after hearing, the petition was dismissed and it was directed that the car be returned to the owner. The court held that the seizure was founded upon evidence illegally obtained. The Commonwealth appealed.

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 deemed contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided.'

The owner of the automobile presented no evidence and there can be no question but that the automobile was being used to illegally transport untaxed liquor from New Jersey into Pennsylvania.

The Fourth Amendment to the United States Constitution prohibits only unreasonable searches and seizures.

We repeat what we said in Com. v. One 1955 Buick Sedan, 198 Pa.Super. 133, 137, 138, 182 A.2d 280, 282: '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.'

'* * * At p. 153, 45 S.Ct. at p. 285 it was further said: 'We have made a somewhat extended reference to these 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 under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interrupton or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.'

'It was further said, at pp. , 156, 45 S.Ct. at p. 286: 'The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.''

In the case of Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, a case greatly relied upon by the appellee, the Court, in the majority opinion, at page 104, 80 S.Ct. at page 172, said: 'The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure. The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband. Its shape and design might at times be adequate. The weight of it and the manner in which it is carried might at times be enough.' (Emphasis supplied)

We also add that the place where the search is made should be taken into consideration.

With these principles in mind, let us review the facts in the present case. Officer Snyder testified: 'That I had reason to believe that a late model black four-door sedan, Plymouth, was delivering liquor illegally into Pennsylvania from a dealer in South Jersey.' In cross-examination he stated that he got this information from previous observations, although he had admitted that he had never seen this car or the driver before. The 'previous observations' were not explored any further. A further exploration might have revealed more information concerning the source of the officer's knowledge. This car attracted the officers' attention because it was quite low in the rear. When the officers first observed the car, it was about to enter the Delaware River Bridge leading from the State of New Jersey to the State of Pennsylvania. A state should have the right to stop a traveler coming into the state and to search his belongings to ascertain whether he is bringing into the state any property upon which a state tax is due. The Commonwealth of Pennsylvania has a sales tax, a liquor tax and a cigarette tax, and if its officers may not stop vehicles coming into the state to ascertain whether its laws are being violated, law enforcement will be greatly impeded.

Many times travelers are stopped at state borders and their cars are searched to ascertain whether diseased vegetation is being brought into the state. Nobody complains about this or feels that his privacy is being unduly invaded. Airplane passengers are many times required to open their luggage for inspection to ascertain whether bombs are being brought upon the plane. These are concomitants of a modern civilization and are accepted by most people without objection for their own protection and best interests. Also, the search was on December 16, which was at a time when the officers might well believe illegal liquor would be transported into Pennsylvania to meet the demands of the holiday trade. If the officers had left the scene to obtain a search warrant, the evidence would undoubtedly have been lost. The back rest of the rear seat had been removed so that the liquor could be stored in the back part of the car in addition to being stored in the rear trunk. Just what the officers could observe through the windows of the car when it was stopped was not brought out in the testimony. Undoubtedly they could have seen what was on the rear seat of the car without making any search. Whether they could tell from this point of view that the liquor did not bear Pennsylvania seals, we do not know. There can be no doubt that a misdemeanor (the transportation of untaxed liquor) was being committed in their presence. Under all of the circumstances, we are of the opinion that the search and seizure were reasonable. Mr. Justice Clark, in his dissenting opinion in the Henry case, said at page 106 of 361 U.S. at page 173 of 80 S.Ct.: 'When an investigation proceeds to the point where an agent has reasonable grounds to believe that an offense is being committed in his presence, he is obligated to proceed to make such searches,...