Commonwealth v. Hughes
| Decision Date | 30 June 1983 |
| Docket Number | 96 Criminal 1982 |
| Citation | 27 Pa. D. & C.3d 269 |
| Parties | Commonwealth v. Hughes |
| Court | Pennsylvania Commonwealth Court |
Motion for a new trial and in arrest of judgment.
Keith E. Bell, Assistant District Attorney for the Commonwealth
William J. Moder, III, for defendant.
Defendant, Donald Hughes, was tried non-jury and convicted of carrying a firearm without a license, receiving stolen property and driving without a valid license. Defendant was also convicted for violating a local ordinance which prohibits carrying an open bottle of liquor in a moving vehicle. That ordinance is commonly referred to as the " Open Bottle Ordinance." Defendant has filed motions in arrest of judgment and for a new trial. We find that the evidence seized during an inventory search of the defendant's automobile should have been suppressed and we, therefore, grant his motion for a new trial.
On February 7, 1982, a Saturday, at approximately 3:00 p.m. Officer Larry Knight of the Farrell Police Department was traveling west on French Street in Farrell, Pa. Officer Knight was in uniform and was driving in a marked police cruiser. At the intersection of French and Spearman Streets, Officer Knight noticed a 1974 yellow Lincoln Continental. The left front side of the Lincoln was visibly damaged. The headlight and turn signal appeared to be inoperable. A day or two prior to February 7, Officer Knight witnessed a hit and run accident involving a large yellow automobile. He thought the yellow Lincoln might be that car because the Lincoln was damaged in the same general area as was the yellow car. Officer Knight decided to follow the Lincoln as it turned onto Idaho Street from Spearman. The Lincoln contained two black males; defendant and his companion, Kenneth Martin. He followed the Lincoln for almost two blocks and noticed the driver, defendant, take a sip from a bottle wrapped in a brown paper bag. Defendant then handed the bottle to Kenneth Martin, who also took a sip. At this point, Officer Knight turned on his red lights in order to stop the Lincoln. Defendant saw the lights and stopped his car in the middle of the intersection between Wallis and Idaho Streets. Officer Knight instructed Defendant to get his car out of the intersection. He complied and pulled the Lincoln to the right curb and into a no parking zone. Officer Knight went up to the driver's side of the car and asked defendant for his license and registration cards. Officer Knight smelled the odor of alcohol and saw a bottle in a brown paper bag lying on the floor of the passenger side. The bottle contained a dark pinkish liquid consistent with wine. By this time, Officer Allen, also of the Farrell Police Department, arrived at the scene and went up to the passenger side of the car. He too noticed the bottle lying beneath Kenneth Martin's legs. He asked Martin to get out of the car and placed him under arrest for violating the " Open Bottle Ordinance." Meanwhile, defendant was unable to produce a valid license or registration card. Officer Knight then arrested defendant for failing to have a valid operator's license and for violating the Open Bottle Ordinance. Upon questioning defendant, Officer Knight learned that he was a resident of California. Kenneth Martin said he lived in Youngstown, Ohio. Officer Knight then told the two that he was going to take them down to the Farrell Police Station.
At no time did Officer Knight ask defendant what he wanted to do with the Lincoln. He also was not given the opportunity to contact a friend or relative who could come and pick up the car, nor was he allowed to move the car to a lawful parking place. Instead, Officer Knight considered the Lincoln to be an obstruction to traffic and ordered the car towed to the Farrell Police Station.
Defendant and Martin were not immediately taken before a district justice for a hearing or to post bond. See 75 Pa. C.S. A. § 6305 (1977). Instead, they were taken directly to the police station and held there while the police made several unsuccessful attempts to contact the district justice on duty for that weekend.
The Lincoln was towed to the police station by a private contractor and it arrived shortly thereafter. Officer Knight later testified at the suppression hearing that the Farrell Police Department's policy was to inventory the contents of all cars impounded and remove any valuables because they did not have a secure place to park the automobiles.
Clyde Franks, the private towing contractor, began to inventory the contents of the Lincoln. Officer Knight was also present and observed Franks' progress. While inspecting the front area of the car, he saw a pistol in the driver's ashtray in the dashboard. He immediately called Officer Knight's attention to this find. Officer Knight was unsure whether he should continue the search and decided to call Detective John Rauschenbaugh to determine if the search should continue. Detective Rauschenbaugh came down to the station and he and Officer Knight resumed the search. They removed the .22 caliber revolver from the ashtray and discovered beneath it a credit Card issued to a Richard Slavovosky. They also found a fully loaded .22 caliber clip and a credit card receipt signed by Richard Slavovosky in the ashtray. They then discovered a .38 caliber pistol underneath the floormat on the passenger side. Officer Knight also seized a black glove from the dashboard. The police also seized 24 8-track tapes, one quart of motor oil and transmission fluid, two plastic pill bottles containing pink round pills and four U.S. Mail envelopes. These items were recorded on a plain legal size piece of paper. A time was marked on the paper but we cannot tell from it whether the items seized were marked on the paper during or after the search. One thing is clear, the paper is not a form developed specifically for recording items seized during an inventory search.
Defendant filed an omnibus motion seeking, among other things, to suppress the items seized during the inventory search. The hearing judge denied the motion. He reasoned that the legality of the search was dependent upon the legality of defendant's arrest. He determined that there was authority for Officer Knight to arrest defendant and his arrest was therefore legal and the resulting inventory search was also legal. We agree with the hearing judge that the police had the authority to arrest defendant and Kenneth Martin. We do not, however, agree that the legality of the inventory search is dependent upon the legality of the arrest. We believe that the inventory was illegal because defendant was not given the opportunity, before his car was towed away, to make other arrangements for the safekeeping of his car or his possessions contained therein.
The search of defendant's car was conducted without a warrant. The search can be valid only if it falls within any of the narrow exceptions to the warrant requirement. The Commonwealth contends that the search was a valid inventory search and as such, could be conducted without either a warrant or probable cause.
The leading case dealing with inventory searches is South Dakota v. Opperman, 96 S.Ct. 3092 (1976), where the United States Supreme Court held that an inventory search of a lawfully impounded vehicle was not unreasonable under the Fourth Amendment. In Opperman, the appellee parked his car in a restricted parking zone and left it unattended. Police ticketed the car twice during the early morning hours and finally called for a tow truck. The car was impounded and taken to the impound lot. There the police noticed items of value on the back seat and back floorboard. The doors were unlocked and a police officer, using a standard form, inventoried the car's contents. He opened the unlocked glove compartment and discovered in it a bag of marijuana. Appellee was later arrested and charged with possession of this marijuana. He was convicted by a jury after the denial of his suppression motion. The Supreme Court of South Dakota reversed, holding the search violated the defendant's Fourth Amendment rights. The Supreme Court granted certiorari and reversed. The court first noted that the expectation of privacy associated with automobiles is significantly less than that associated with a home or office. The police frequently come into contact with automobiles for a myriad of reasons, most distinctly non-criminal. Police often obtain custody of vehicles pursuant to their " community caretaking functions" such as removing automobiles from the scene of an accident; seizing automobiles that may have been stolen or abandoned; and impounding automobiles that violate parking ordinances. The court stated that the authority to perform these caretaking functions is beyond challenge. The court then noted that when the police take custody of an automobile, it is customary for them to inventory its contents. This standard procedure developed in response to three distinct needs. First, the inventory will protect the owner's property while the car is in police custody. Secondly, it will protect the police from false claims of lost or stolen property. Finally, an inventory will protect the police from any potential danger.
The court summarized the reasons for its holding stating:
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