Commonwealth v. DeJesus

• Decision Date: 19 September 1973
• Citation: 310 A.2d 323,226 Pa.Super. 79
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Enrique DeJESUS.
• Court: Pennsylvania Superior Court

310 A.2d 323

226 Pa.Super. 79

COMMONWEALTH of Pennsylvania, Appellant, v. Enrique DeJESUS.

Superior Court of Pennsylvania.

September 19, 1973.

Robert S. Gawthrop, III, Asst. Dist. Atty West Chester, for appellant.

John R. Merrick, Kenneth Square, for appellee.

WATKINS Judge.

This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Chester County suppressing the evidence after an indictment of the defendant-appellee, Enrique DeJesus, for violation of the Uniform Firearms Act. The Commonwealth cannot prove a case without the suppressed evidence and this appeal by the Commonwealth followed.

The facts are as follows: On September 23, 1972, at approximately 12 midnight, the Chief of Police of Avondale Borough was on patrol when he was approached at a gasoline station lot by a car occupied by young people. The spokesman for the group Chet Munson, Jr., a resident of Avondale but unknown to the officer, complained of a vehicle that was following them closely and trying to drive them off the road. The car complained of was parked in the same lot about fifty (50) feet from the Munson vehicle.

The officer approached the parked car in the company of a fellow officer and flashed his light into the window as he was approaching the car some distance away. The flashlight disclosed two occupants in the car moving about as if they were trying to hide something and 'scrooching down' so that they could not be seen. The officer continued to approach the car still flashing his light and asked the driver to get out and show his cards. The officer beamed his light into the car and from his position outside of the car saw something shiny which he reached in and removed. It was an unregistered, fully loaded revolver.

The court below suppressed the evidence on the theory that the police officer did not have the right to position himself outside the parked car where the flashlight disclosed the revolver. He relied heavily on the recent case of Commonwealth v Swanger, Pa., 300 A.2d 66. This case was re-argued before the Supreme Court and re-affirmed in an opinion by Mr Justice Eagen, adopted and filed on July 2, 1973, 453 Pa. 107, 307 A.2d 875.

In the Swanger case, supra, the stopping of the car was without any reason except a 'routine check' by the officer and the court held that:

'It is axiomatic, however, that only Unreasonable seizures are proscribed by the Fourth Amendment. Therefore, appellant's 'seizure' would not be constitutionally impermissible if it could be shown that it was reasonable.'

The Court further said that:

'The crux of our decision that a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of the Motor Vehicle Code, goes to the Commonwealth's argument the police need no justification to stop the vehicle. We rule before the government may single out one automobile to stop, there must be specific facts justifying this intrusion. To hold otherwise would be to give the police absolute, unreviewable discretion and authority to intrude into an individual's life for no cause whatsoever.'

However, the instant case does not involve the stopping of a vehicle for a 'routine check'. A citizen in a parked car complained to the police about a vehicle already voluntarily parked in the same lot fifty (50) feet away, for following his car for some miles closely and attempting to force the car off the road. As the officer testified, the complainant said: 'He tried to bump me in the rear and come along side as if to push him off the road.' There is no question in this case at all of stopping a car with or without reason. The complaint by the citizen clearly makes out probable cause for the officer to proceed further in the investigation of a probable violation of the Criminal Code or the Motor Vehicle Code.

The court below characterized the actions of the defendant in his findings of fact as follows:

'6. The occupants of that car were observed moving around in the seats in a suspicious manner.'

But the court went on to find:

'Under all the circumstances the Commonwealth cannot find protection in the doctrine of plain view, since the officer did not have the right to be in the position that was required to afford the opportunity for plain view.'

Under such an interpretation a police officer has no right or duty to even approach a parked automobile even after receiving a complaint from a citizen alleging violation of the law. The vehicle was already voluntarily parked and the officer had been supplied with evidence by a citizen-complaint seeking the protection of the law. The complaint would indicate a crime had been committed or at least there was a violation of the Motor Vehicle Code. Certainly, the complaint of Munson gave the officer the duty to at least approach the...