Commonwealth v. Anderson

• Decision Date: 15 September 1966
• Parties: COMMONWEALTH of Pennsylvania v. Henry L. ANDERSON, Appellant.
• Court: Pennsylvania Superior Court

222 A.2d 495

208 Pa.Super. 323

COMMONWEALTH of Pennsylvania v. Henry L. ANDERSON, Appellant.

Superior Court of Pennsylvania.

September 15, 1966.

Petition for Allowance of Appeal Denied Nov. 21, 1966.

Lenard H. Sigal, Philadelphia, for appellant.

Benjamin H. Levintow, Gordon Gelfond, Joseph M. Smith, Asst. Dist Attys., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before ERVIN P.J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.

WATKINS Judge.

This is an appeal from the judgment and sentence of the Court of Oyer and Terminer, Quarter Sessions of the Peace and Jail Delivery, of Philadelphia County. The appellant-defendant Henry L. Anderson, was charged with the felonious possession of narcotic drugs. He waived his right to a jury trial and after entering his plea of not guilty, was tried before the Honorable George W. Griffith, specially presiding. He was adjudged guilty; motions in arrest of judgment and for a new trial were denied; and he was sentenced to a term of not less than two and one-half years nor more than ten years in the State Correctional Institution at Philadelphia.

Prior to trial, he filed a motion to suppress evidence on the ground of unlawful arrest, search and seizure. The matter was heard by the Hon. Charles L. Guerin, who, after hearing the testimony, dismissed the motion. The same motion was renewed and substantially the same testimony was heard by the trial judge and the motion to suppress was denied.

The question on appeal is whether a new trial should be granted because of the denial of the motion to suppress and the admission of alleged illegally obtained evidence in violation of the appellant's constitutional rights. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1960).

The facts are: That at or about 2:05 A.M., on November 16, 1964, two cruising police officers saw an automobile being operated erratically and with its lights at high beam. They stopped the car to determine the condition of the driver. The officers, after talking to the appellant, found that although he had been drinking, in their opinion, he was not intoxicated. One of the officers recognized him as a known narcotics violator and as they were examining his owner's and operator's cards and talking to him, with the use of a flash light, they noticed a cylindrical shaped object wrapped in brown paper protruding from under the front seat. There was a passenger in the car who was alleged to be a garage attendant who was to have parked the appellant's car after he arrived home. The appellant did not testify either at the trial or at the hearing to suppress the evidence. Neither did the passenger.

The only testimony as to what took place that early morning was given by the two police officers. They testified that they asked him to accompany them to the District Police station for investigation. They testified that he was not placed under arrest at that time nor did they seize the package involved. The appellant consented to their request and drove his automobile to the police station and locked it before accompanying the officers into the station. After about 'five to ten minutes' the appellant was asked and consented to a search of his car and assisted the officers in making the search. They found nothing by the search but the package which they had seen at the time the car was stopped. This package was found to contain narcotic instruments and drugs. The officers then placed the appellant under arrest.

The action of the police officers in stopping the appellant's automobile was proper for the protection of highway users. Com. ex rel. Bowers v. Rundle, 200 Pa.Super. 496, at page 499, 189 A.2d 910, at page 912 (1963), where this Court said: 'They had not only the right but the duty, to halt the truck which was being operated without lights. In the act of checking the license of the operator and the vehicle registration card they observed the cases of whiskey in open view. The mere looking at an object which is plainly visible does not constitute a search, nor does its taking constitute a seizure'. True, in the instant case, the cylindrical package did not disclose its contraband nature as the whiskey did but taken together with officer's knowledge that the appellant was a known narcotics violator, he could infer its contraband contents to give him reasonable cause to investigate its contents.

However the officers acted with great prudence. They could have arrested the appellant for a vehicular code violation then and there, but having seen the suspicious package decided to complete the investigation at the police station. To let the automobile go would invite the destruction of the contraband and the courts have made a distinction as regards reasonableness of search between buildings and motor vehicles.

'The term 'search' as applied to searches and seizures is an examination of a man's house, buildings or of his person, with a view to the discovery of contraband or some evidence of guilt to be used in the prosecution of a criminal action: 79 C.J.S. Searches and Seizures § 1, page 775.

'A seizure contemplates a forcible dispossession of the owner and is not a voluntary surrender: People v. Defore, 242 N.Y. 13, 150 N.E. 585.

'In Haerr v. United States, 240 F.2d 533, a case factually similar to the instant case, federal officers were questioning occupants of an automobile and observed the defendant trying to hide boxes and then observed him throw the boxes from the automobile. The officers picked up the boxes and found marihuana, and the Court found that there was no search and seizure. It is generally held that the mere looking at that which is open to view is not a search: United States v. Lee, 274 U.S. 559 (47 S.Ct. 746, 71 L.Ed. 1202); Ellison v. United States, 3 Cir. (93 U.S.App.D.C. 1), 206 F.2d 476. In the Ellison case, at page 478, the Court said: 'If an officer sees the fruits of crime--or what he has good reason to believe to be the fruits of crime--lying freely exposed on a suspect's property, he is not required to look the other way, or disregard the evidence his sense bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him. " Com. v. Calvarese, 199 Pa.Super. 319, 322, 185 A.2d 657, 659 (1962).

At this stage of the proceedings prior to the consensual search and the arrest there was no violation of the appellant's constitutional rights.

'In passing upon the 'reasonableness' of a search and seizure, a preliminary, and most important, question is whether Mapp requires that state courts determine the 'reasonable...