Commonwealth v. Street and Street. Commonwealth v. Cella

• Decision Date: 10 December 1923
• Citation: 3 D.&C. 783
• Parties: Commonwealth v. Street and Street. Commonwealth v. Cella.
• Court: Pennsylvania Supreme Court

Page 783

3 D.&C. 783

Commonwealth v. Street and Street. Commonwealth v. Cella.

District Court of Pennsylvania.

December 10, 1923.

Intoxicating liquors — Unreasonable searches and seizures — Const., art. i, sect. 8 — Act of March 27, 1923 — National Prohibition Act of Oct. 28, 1919.

1. Both the State legislation and the common law furnish authority to police officers to stop and, with or without warrant, to search motor-vehicles for contraband or other instrumentalities of crime.

2. The authority thus referred to is valid and lawful, and does not contravene the constitutional rights of citizens against unreasonable searches and seizures; the search of a motor-vehicle may not be unreasonable within the meaning of the Constitution, although a similar search of a stationary or permanent habitation might, under otherwise identical circumstances, be wholly unreasonable.

3. Even, however, if such search and seizure be unconstitutional, and, therefore, invalid, the physical evidence secured thereby as well as the testimony of the officers in regard to its discovery are competent evidence upon the trial of the criminal cause, and will not be excluded because of any alleged illegality in the method by which such evidence and testimony were obtained.

4. The Court of Quarter Sessions, which has jurisdiction on the trial of an indictment for the transportation and illegal possession of intoxicating liquors, also has jurisdiction to entertain a petition alleging that the searches and seizures of trucks, driven by defendants, were in violation of their constitutional rights, and praying that the District Attorney, Director of Public Safety, their assistants, detectives, etc., be restrained from offering in evidence at the trial any of the articles seized, and from testifying to the facts learned by them through such searches and seizures.

5. Officers of the law, being informed that beer was about to be transported from Philadelphia to New York in certain trucks, stopped the trucks. One of the drivers having admitted that his truck contained beer, the officers asked that all the trucks be opened, and discovered that each contained sixty half-barrels of beer, which was found to contain from 2.25 to 2.35 per cent. by volume of alcohol. The drivers of the trucks had not been violating any of the traffic regulations or committing any breach of the peace. The trucks were all closed in such a way that the contents were not visible, nor was there any odor of beer observable until after the search had proceeded. The officers had no search warrants or warrants of arrest. The defendants were arrested and subsequently indicted for the transportation and illegal possession of intoxicating liquors. When the cases were called for trial, the defendants presented petitions in each case, alleging that the searches and seizures of the trucks and their contents were in violation of their constitutional rights, and praying that the court restrain the District Attorney, Director of Public Safety, their assistants, officers and detectives, from offering at the trial any of the evidence or articles seized, and from testifying to any facts learned by them at the time of the search and seizure: Held, (1) That the Court of Quarter Sessions had jurisdiction to determine whether the trucks had been seized in violation of the defendants' constitutional rights; (2) that the search and seizure of the trucks without a warrant was not unreasonable within the meaning of the Constitution of Pennsylvania, art. i, § 8, which provides that the people shall be "secure in their persons, houses, papers and possessions from unreasonable searches and seizures," although a similar search of a stationary or permanent habitation might, under otherwise identical circumstances, be wholly unreasonable; (3) that, even if the search and seizure were invalid, the physical evidence secured thereby and the testimony of the officers in regard to its discovery would be competent upon the trial of the indictments; and (4) that the petitions should be dismissed.

Prohibition Enforcement Act of March 27, 1923, P. L. 34, and the National Prohibition Act, considered.

Petition to enjoin use in evidence of property seized in violation of defendants' constitutional rights. Q. S. Phila. Co., Sept. Sess., 1923, Nos. 690, 691 and 631.

Joseph K. Willing, Charles E. Fox, Assistant District Attorneys, and Samuel P. Rotan, District Attorney, for Commonwealth.

Henry M. Stevenson, for defendants.

STERN and GORDON, JJ., Dec. 10, 1923.—

On Aug. 25, 1923, at about half-past one in the morning, Ernest Street, Alvin Street and Louis L. Cella, defendants in the above cases, were each driving a five-ton truck on the Roosevelt Boulevard, in Philadelphia. Three detectives, having received information that trucks of beer were going over the Boulevard to New York, stationed themselves at Castor Road and stopped the defendants' vehicles at that point. They announced to the drivers that they were officers of the law and asked them what they had on their trucks. Ernest Street and Louis E. Cella said that they did not know; Alvin Street said, "I've got beer." Thereupon the defendants were requested to open the trucks, which they did, and it was discovered that each truck contained a load of sixty half-barrels of beer, later upon analysis found to contain from 2.25 to 2.35 per cent. by volume of alcohol.

The testimony disclosed that at and immediately before the seizure and opening of the trucks the defendants had not been violating any of the traffic regulations or otherwise committing any apparent breach of the peace, that the trucks were all closed in such a manner that the contents were not visible, neither was there any odor of beer discernible until after the search had proceeded. It is also a fact admitted by the officers that they had no warrant of arrest or of search.

The defendants were arrested and indicted for the transportation and illegal possession of intoxicating liquor. When the cases were called for trial counsel for defendants presented petitions in each of the cases, alleging that the searches and seizures of the trucks and their contents were in violation of the Constitution and of the acts of assembly of the State of Pennsylvania, and praying that the court restrain the district attorney, the director of public safety, and their assistants, officers and detectives, from offering at the trial any of the evidence or articles seized as aforesaid, and from testifying to any facts learned by them at the time of said searches and seizures or in consequence thereof. The trial judge continued the trial of the cases until the prayer of the petitioners should be disposed of as a preliminary proceeding, and it is these petitions which are now before the court for consideration.

Counsel for the defendants conceded at the bar of the court in argument that the petition must fall as to the defendant Alvin Street, because, he having stated that he had beer on his truck, this admission in itself amounted to such reasonable and probable cause of belief that the law was being violated as to justify the officers in seizing and searching the truck. On the other hand, it is apparently conceded by the Commonwealth that, as to the two other defendants, the mere fact that when asked by the officers whether they would open the trucks, they said, "yes," and proceeded to do so, does not constitute such a voluntary acquiescence on their part as to amount to a waiver of their constitutional rights. This concession on the part of the Commonwealth is justified by the established principle that where an officer politely, decently and without physical threat has assumed to act in his official capacity, a peaceful citizen who does not forcibly resist the action, even though he knows the officer to be exceeding his authority, is held not to have acquiesced in the unlawful search or arrest: United States v. Slusser, 270 Fed. Repr. 818; United States v. Rembert, 284 Fed. Repr. 996, and cases there cited.

It is to be noted that the defendants' petitions do not ask that the seized liquor be returned. Defendants admit that, whether the search and seizure were lawful or unlawful, the liquor itself is contraband and the defendants have no property rights therein. The beer, by virtue of the National Prohibition Act (41 Stat. 305, Act of Oct. 28, 1919, ch. 85, title II, § 25) and the corresponding act in our own State (Act of March 27, 1923, § 11a, P. L. 34), was forfeited the moment the defendants embarked upon the unlawful transportation, and, therefore, under no possible view of the case, have they any right to a return of the property seized. Moreover, there is no law requiring or justifying the return of property to any one whose possession of it constitutes a crime or whose use of it is only for the purpose of committing a crime: Rosanski v. State, 140 N. E. Repr. (Ohio) 370; People v. Case, 190 N. W. Repr. (Mich.) 289; People v. Bowen, 198 N. Y. Supp. 306; State v. Chuchola, 120 Atl. Repr. (Del.) 212; United States v. Kaplan, 286 Fed. Repr. 963; United States v. Fenton, 268 Fed. Repr. 221; United States v. O'Dowd, 273 Fed. Repr. 600; United States v. Dziadus, 289 Fed. Repr. 837; Pasch v. People, 209 Pac. Repr. (Colo.) 639; United States v. Alexander, 278 Fed. Repr. 308.

The Commonwealth, in its answers to the petitions, raises the question of the jurisdiction of the court, contending that the prayer is for an order in the nature of an injunction which can be made only by a court of equity. There exists, however, abundant authority for the proposition that the Court of Quarter Sessions which is charged with the trial of the cause can determine, and indeed alone can determine, the relevancy of the evidence presented for its consideration, can control the disposition of documents and other physical articles submitted or proposed to be submitted as evidence, and can direct the district attorney and other...