Com. v. Timko
| Decision Date | 24 July 1980 |
| Citation | 417 A.2d 620,491 Pa. 32 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Robert George TIMKO, Jr., Appellant. |
| Court | Pennsylvania Supreme Court |
Alan Ellis, Robert C. Fogelnest, Philadelphia, for appellant.
Robert F. Banks, First Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
In March 1975, appellant, Robert Timko, was tried by the Court of Common Pleas sitting without a jury in Lycoming County on charges of possession of marijuana with intent to deliver, possession of marijuana, possession of an unlicensed firearm, and disorderly conduct. Timko was found guilty of possession of marijuana and possession of an unlicensed firearm. After post-verdict motions were filed, judgment was arrested on the weapon charge, and a sentence of one year's probation was imposed on the possession conviction. The Superior Court affirmed the order, 1 and we granted Timko's petition for allowance of appeal.
The sole issue presented is the propriety of a search by police of the contents of a zippered valise seized from Timko's automobile 2 during the following sequence of events:
While driving a police vehicle during the early evening on September 16, 1974, Officer Williams of the Williamsport Police Department observed Timko operating a Volkswagen van in an erratic manner. While making a turn, Timko's van almost struck one vehicle, then drifted across the center line nearly striking Officer Williams' vehicle. As he passed Officer Williams' car, Timko looked out of an open window in his vehicle and directed an obscene gesture at him. The policeman turned and pursued Timko intending to arrest him for reckless driving. Moments later, Timko parked his van but struck vehicles to the front and rear of his own in the process. When Officer Williams approached Timko on foot, Timko rolled up his window and locked himself inside the van. When requested to show his license and registration, he responded with an obscene refusal. Officer Williams observed several boxes marked "shotgun shells" in the van and returned to his police vehicle to call for assistance.
Soon, other police officers arrived at the scene. Timko continued his refusal to tender identification except for momentarily flashing a card in the window in such a manner that the officers were unable to read it. After addressing further obscenity to the policemen, Timko started the motor of his van. While he was attempting to pull out of the parking space, police officer Jett was trying to pry open the van door using a tire iron. As Officer Jett pried, Timko looked at him and then reached for a zippered brown valise sitting atop another article in the back seat of the van. Having seen boxes marked "shotgun shells" in the vehicle and suspecting Timko was reaching for a weapon in the valise, Officer Jett smashed the van window open with the tire iron. Within a short period of time, he unlocked the door, helped pull Timko from the van, and retrieved the brown bag. Before being led away to the police car, Timko was frisked and handcuffed while standing next to the driver's seat door of the van. While this was happening, the police opened and searched the seized brown valise. It contained two packages of marijuana with a total weight of five hundred and forty-five (545) grams and a loaded revolver.
Timko maintains the fruits of the warrantless search of his zippered valise should have been suppressed. We agree.
Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979) (citation omitted). Against this strong preference for having the justification for and scope of a search reviewed by a neutral judicial officer, stand "a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted). In this case, the Commonwealth urges the search of Timko's zippered bag did not require a warrant because it was a search incident to arrest; 3 a search conducted to protect the safety of the officers; 4 a search of a mobile automobile; 5 or, an inventory search of an automobile. 6 We shall discuss these contentions seriatim.
United States v. Chadwick, supra, 433 U.S. at 15, 97 S.Ct. at 2485. In such a situation, absent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible.
In the case before us, the trial court found that Timko was standing beside his van, on the driver's side, being frisked when the brown bag was seized. Regrettably, the record is unclear about the exact sequence of events surrounding the search, but it does strongly suggest that Timko was under the control of the police officers, possibly handcuffed, at the time of the search and that the bag was under the exclusive control of the police officers at the time of the search. On this record, the Commonwealth has not established the search was incident to an arrest. Cf. Commonwealth v. Long, --- Pa. ---, 414 A.2d 113 (1980).
The Commonwealth asserts the exigencies of the situation were such that an immediate search was necessary to protect the safety of the officers. While the events leading up to the search were such as would lead a reasonable policeman to believe the zippered bag might contain a weapon, nothing further occurred to justify an immediate warrantless search. For example, there is no suggestion the bag contained explosives or some other item which might in some way endanger the police officers or others, nor is there a suggestion the bag or its contents were in danger of concealment or destruction.
The Commonwealth argues the location of the zippered bag in a motor vehicle made it subject to the so-called "automobile exception" to the requirement for a search warrant. Chambers v. Maroney, supra. That exception is based on the inherent mobility of automobiles with consequent practical problems in obtaining a warrant 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. United States v. Chadwick, supra. In the case of luggage, no such considerations operate to diminish the citizen's expectation of privacy. A piece of luggage is not mobile once it is taken into police custody, and it is ordinarily a place in which personal belongings are stored or transported. Arkansas v. Sanders, supra. Thus, a zippered valise, analogous to personal luggage, may not be searched without a warrant simply because it has been seized from an automobile.
Finally, the Commonwealth argues the search of the valise was similar to an inventory search which could have been performed at a later time. This argument is without merit. See Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976); United States v. Markland, 489 F.Supp. 932 (D.Conn.1980).
A party asserting an exemption from the requirement for a search warrant bears the burden of establishing his actions come within the exemption. Arkansas v. Sanders, supra; Chimel v. California, supra; Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). In this case, the Commonwealth has not met that burden.
The order of the Superior Court is vacated, the order of probation is set aside, and a new trial is granted.
I believe there exist several compelling justifications for upholding the validity of the seizure and search of appellant's valise and the admissibility of the contents of that valise. I would therefore affirm the order of the Superior Court.
The majority opinion states "absent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible." (Emphasis added.) While I have no fundamental quarrel with this statement of the law, I think the application of that law mandates the admissibility of the contents of the valise. Not only are "exigent circumstances" present, but it is my firm conviction that appellant could not have had a reasonable or legitimate expectation of privacy in his valise under the circumstances of this case.
The fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable governmental invasions of legitimate expectations of privacy. Rakas v. Illinois, 439 U.S. 128, 142-143, 150-151, 99 S.Ct. 421, 430, 434, 58 L.Ed.2d 387 (1978); United States v. Chadwick, 433 U.S. 1, 7, 11, 97 S.Ct. 2476, 2481, 2483, 53 L.Ed.2d 538 (1977). Therefore, the threshold inquiry is whether or not any legitimate expectations of privacy have been invaded if not, the protections of the Fourth Amendment are not triggered. Rakas v....
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...exigency that justifies a search in the absence of a warrant—a search incident to an arrest. The White court, citing Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), explained that a warrantless search may be permissible as a search incident to an arrest. However, the court reaffirme......
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