*1 Pennsylvania, Appellant, COMMONWEALTH LYONS, Jr., Appellee. J. John Pennsylvania. Superior Court Nov. Submitted July Decided *2 Com., Colville, for Attorney, Pittsburgh, District Robert E. appellant. Radakovich, appellee. for Pittsburgh,
Raymond JACOBS, WATKINS, Judge, President Before HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge: this from an order appeal has taken Commonwealth gambling parapherna- certain suppressing of the lower court The evidence lia, and numbers sheets. namely poolmaking following and in his car appellant’s person was discovered on violations. There for various Motor Vehicle Code his arrest is the court’s order no real being dispute basis and has effect purely legal on a being challenged respect out of court with the Commonwealth putting will allow the charged, appeal. violations we gambling (1973); Blevins, 309 A.2d Commonwealth v. Brandt, Pa.Super. Commonwealth Deren, (1976); Pa.Super. we with the agree Since error, the evidence was in suppressing that the court’s order case for trial. The relevant we will and remand the reverse facts are as follows. 17, 1976 several May
At 4:20 A.M. on approximately in two parked Police were Pittsburgh uniformed Officers lot when ob- parking they cars in a store patrol grocery in the di- wrong his automobile served appellee Both cars patrol rection on street. adjacent, one-way an side of it to a halt on the pursued brought the vehicle and street, continued to run. When one although engine produce operator’s his of the officers asked not, which he could registration, license and motor vehicle his glassy, were eyes the officer observed slurred, his breath bore the odor of alcohol. speech his car and The officer therefore ordered arrest, not walk noting that he could him under placed appel- of the officers then into got One staggering. without so that turn off the and lock the doors ignition lee’s car to time the for the At that night. the car would be secure front numbers in view on the slips plain officer observed the num- seizing the car. with Contemporaneously seat of car, engaged were securing bers slips whether he had identifi- any to determine frisking appellee on his cation, slips person, or additional numbers weapons in his All slips pocket. discovered more whereupon they rice which is soluble slips paper readily were made of water. *3 sup- recitation of these facts the court
Upon hearing the
reasoning
the
neither the
pressed
slips,
all
numbers
was
person
nor the search of his
appellee’s
search of
car
and
a warrant
to the Fourth
justifiable
pursuant
without
Amendments of the Federal Constitution.
Fourteenth
asser-
appellee’s
court did not
reach
additional
specifically
of the
tion that his
under the Constitution
Common-
rights
were also violated.
Pennsylvania
wealth of
court
At the outset it should be noted that
Supreme
did not have the benefit of the United States
Mimms,
v.
434 U.S.
Pennsylvania
Court’s recent decision
106,
330,
(1977) when it made its
98
145
from his car and
ordered
properly
Having
arrest,
is
next
whether the
him
under
placed
engine
car to
off the
appellee’s
could enter
turn
police
were
course,
constitutionally
if the
doors. Of
lock the
gambling
car, they
could seize
entitled
enter
Coolidge v.
then came into
view.
plain
which
paraphernalia
443,
2022,
91
1. held that an search it been has simply driving may if be unreasonable arrest for under the influence Econoline, locking the car was a viable alternative. Re One 433, Ariz. P.2d illegal despite argue Appellee being his was does not that frisked discovery slips poolmaking in his sheets car. the numbers and only and not entered his car found He maintains had the justified they gambling in paraphernalia, not have been would removing papers pocket. from his remand that we should argues the dissent juncture
At this the Pennsylva- consider might that the lower court in order We, not consider. claims it did previously nia constitutional if place, In the first however, with this disagree approach. the lower court’s supported Constitution Pennsylvania affirm the order, invoke it in order to we could suppression in the court decision, issue was raised since that court’s Error Digest, Appeal 3 Vale Pa. & generally below. See for event, this case remanding In 854(2) any § is singularly court suppression further consideration at the developed previ- were fully The facts inappropriate. that the possibility and there is no hearing, ous have violated might from his car ordering appellee such Whether rights. constitutional Pennsylvania violation is when the traffic exists protection a or light stop sign, a red or going through merely speeding, street is not way on a one wrong way probable Here the had instant case. legally physical- was both to believe that cause or no driver’s license the car. He had unable to drive ly intoxicated. card, obviously and he was vehicle registration op- prohibited Under such circumstances further, no alternative leaving the car any erating Therefore, constitu- any themselves. but to secure the car frivolous, and our clearly facts is tional on these argument which gesture is a useless for such remanding argument merit nevertheless, arguable we see some would, imply to the question. reasons, the Court of the order of
For the foregoing and the case is réversed Allegheny County Common Pleas of trial. is remanded for
HOFFMAN, J., concurring dissenting opinion, files a JACOBS, Judge, joins. President in which WATKINS, Judge, participate President did not former of this case. the consideration or decision HOFFMAN, concurring dissenting: Judge, Commonwealth, contends that lower Appellant, the. suppress physi- motion to court erred in granting *5 court erred the lower I Because conclude evidence. cal claims and constitutional federal appellee’s of in its analysis contained in for relief appellee’s grounds failed to consider I, 8 of the Article upon predicated § to suppress his motion for consideration Constitution, I remand would Pennsylvania claims. state of appel- stopped officers 17, 1976, Pittsburgh police May On him charged driving in his automobile lee while he was alcohol,1 driving under the influence driving with while After the signs.3 license,2 and violation of traffic without a station, also they police to the police transported bookmaking4 gam- poolselling him with charged filed a motion to 28, 1976, appellee June devices.5 On bling was obtained allegedly which evidence suppress physical state constitu- his federal and in violation of averred that because In rights. particular, appellee tional warrant, the search not have a search did Further, illegal. were and vehicle appellee’s person him and improperly arrested illegally that the argued him from his vehicle. ordered a on 2,1976, hearing lower court conducted August
On adduced at that facts were following motion. The 17, 1976, m. on May At 4:25 a. hearing: approximately travelling a car officers observed Pittsburgh police stopped street. The car one-way on a wrong way his produce operator’s operator, appellee, and asked the to do so. card. was unable registration Appellee license and 58, 1037; 29, 1959, Code, April 75 P.S. § P.L. Vehicle Act of 1. The and renumbered since has been amended 1037. The Vehicle Code § appeal. giving The Act of to the instant date of the incident rise 1977; 1, 1, 17, 1976, 162, 81, July 75 Pa. C.S. P.L. No. eff. § June prohibits of alcohol. under the influence 3731 now § Code, supra; is now 601. This section 75 P.S. § 2. The Vehicle 1501, in 75 Pa. C.S. 1512. §§ covered 1028(a). Code, supra; This section is now P.S. § The Vehicle 3. in 75 Pa. 3111. § covered C.S. 334, 1; Code, No. § P.L. Act of December 4. The Crimes Pa. C.S. § Code, supra; § 5. The 18 Pa. C.S. Crimes *6 conversation, police opinion the formed the this brief During intoxicated. based their conclusion They of and the odor speech, glassy eyes, slurred appellee’s on Following Pittsburgh police standard alcohol on his breath. a license or produce when an is unable to practice operator of the card, get out owner’s the officers asked vehicle, police the the appellee staggered car. As of under the influence driving him under arrest for placed without a him with They charged alcohol. also signs. traffic One posted license and violation vehicle, engine, turned off the then the officers entered The car, appellee. the keys the and returned secured vehicle he noticed as he entered the officer testified that numbers, names, and pluses various and small with papers Thinking papers seat. minuses located on the driver’s and material, the officer removed them were bookmaking at the scene who identified colleague them to a showed then The latter officer bookmaking as material. papers pock- into shirt and reached patted appellee down might officer believed which the detecting papers et after Instead of identifica- a form of identification. have been paraphernalia. other tion, gambling the officer discovered station to the transported appellee then and bookmaking poolselling where he was with charged devices. gambling the lower court foregoing testimony, hearing
After found in the motion to the sheets suppress granted appellee’s It reasoned on appellee’s person. car and the found papers federal actions violated that because the had to be the fruits of those actions rights, This followed.6 suppressed. appeal lower court erred contends that the The Commonwealth poolsell- evidence of suppress motion to granting appellee’s specifically, bookmaking gambling. More ing on the found papers first claims Commonwealth pre-trial may appeal from a It is settled that the Commonwealth requirements only suppressing if two are satisfied: order evidence law, pure question appeal and the must involve a substantially handicap prosecution. effectively terminate or must
149 seized. It that after the legally argues driver’s seat were stopped appellee for various Vehicle Code police lawfully Swanger, violations. Commonwealth v. Pa. (1973), arresting justifiably officer entered and, vehicle, engine
vehicle to turn off the
while in the
saw
the driver’s seat in
view. The
gambling
plain
material on
lower court did not have the benefit of the recent decision in
Mimms,
U.S.
S.Ct.
(1977)
L.Ed.2d 331
in which the United
Supreme
States
held
Court
that the Fourth Amendment to the United States
Constitution,
to the states
the due
applied
through
proc-
as
Amendment,
ess clause of the Fourteenth
does not forbid a
officer who has
pulled over a traffic offender to order
*7
the offender out of his car. While Mimms does not consider
the question
of whether a
officer can then enter the
it,
case,
vehicle to secure
I would hold that in the instant
the
officer acted
in
reasonably
entering the vehicle for the
purpose
turning
engine,
doors,
of
off the
the
locking
returning the
to the
After
keys
operator.
ordering appellee
state,
out of the vehicle and observing appellee’s stuporous
the officer
concluded that
was
justifiably
appellee
physically
incapable
securing
of
his own vehicle. The officer then
entered the vehicle to
this
function.
perform
caretaking
The
conceivable
only
entering
alternative to
the vehicle
would have been to leave the unlocked car on the side of the
56,
Bosurgi,
(1963);
Commonwealth v.
411 Pa.
charges requisite prejudice is irrelevant to the determination that the case, charge. particular has been In the demonstrated as to a instant therefore, showing prejudice of is not diminish- Commonwealth’s merely proceed prosecution in ed because it can unhindered its of charges outstanding against independent on the other him any appealability of the determination as to the order. 150 running. Clearly, this would have engine
road with the been senseless. automobile, a is
Once
inside the
officer
lawfully
v.
objects
plain
to
in
view. Harris
United
entitled
seize
234,
992,
1067
States,
(1968);
390
88
19 L.Ed.2d
U.S.
S.Ct.
Jackson,
632,
(1975),
Commonwealth
582
v.
Pa.
A.2d
999,
432,
denied,
In the police ap- of the Vehicle Code. When the for violations identification, to for motor ask vehicle proached appellee the appellee’s glassy eyes, speech, noted slurred they These fur- alcohol on his observations aroma of breath. appellee cause make a custodial arrest of nished probable of under influence driving for misdemeanor of the the A.2d 700 Guerry, alcohol.7 in Barkley, supra. v. did (1976); lawful, custodial was incident this appellee. fact arrest It the of appellee’s that the conducted search arrest the further person gambling paraphernalia, and encountered bookmaking and charge for the of poolselling basis Robinson, United States v. gambling. supra.8 the erred in I have concluded that lower court Although rights officers violated holding Amendments guaranteed under the Fourth and Fourteenth Constitution, I not reverse the the United States would Pa.R.Crim.P.; Appendix 101(2), provides: Rule 19 P.S. which See by: proceedings be . in cases shall instituted “Criminal court felony or without when the offense is a 2. an arrest misdemeanor committed in the a warrant making presence officer difficulty concluding . . .” no the arrest . We have driving under influence of alcohol committed the misdemeanor of in appellee stopping making presence of the officers arrest. After street, one-way they wrong in on for direction a clearly in a intoxicated state. See Commonwealth observed Levesque, 469 Pa. justified person as could not been The search of have stop Rule 51 to the lawful for the Vehicle Code violations. incident A.(l)(b), Pa.R.Crim.P.; provides Appendix for issuance of P.S. charged is a when the offense a citation rather than an arrest summary minor offense under the Vehicle Code. Because of the offenses, “the such to the Rule asserts that nature of the Comment except extraordinary strongly circumstanc- Rule disfavors arrests proceedings summary are not insti- es.” Because criminal cases transport subsequent police station for an arrest and to a tuted the issuance of complaint, rely upon a could not the Commonwealth Robinson, supra, authority search of the States v. as for a United Robinson, supra, upon existence United turns offender. States v. ensuing justification search. of a lawful custodial arrest as the In for *9 fact, Supreme specifically reach the Court declined to “ e., stop,’ to i. where the officer of a search incident a ‘routine traffic lower court’s suppression order at this time. In his applica- tion to averred suppress, appellee only not that his federal violated, constitutional had been rights but also that had rights guaranteed violated his by Pennsylva- nia Constitution. Because the lower court granted appel- lee’s motion suppress on the theory appellee’s federal violated, constitutional had been rights it did not reach Therefore, appellee’s state constitutional claims. I would remand for of appellee’s consideration averment I, rights violated his secured Article 8 of by § Pennsylvania Constitution. The states that “there Majority is no that the possibility police ordering appellee from his car might have violated appellee’s Pennsylvania constitutional rights.” Consequently, Majority concludes that a re- mand purpose. would serve no I do not that a agree remand for an investigation of the state constitutional issues “is a gesture”. useless To the contrary, appellee’s state constitu- tional questions claims raise novel in Pennsylvania. Specifi- cally, United Supreme States Court rested its recent Mimms, decision in Commonwealth v. supra, on federal grounds, leaving open the state constitutional question. Mimms, Cf. Commonwealth v. supra (Dissenting Opinion MARSHALL, J.), (Dissenting Opinion by STE- VENS, J. in MARSHALL, which BRENNAN and join). JJ. remand, On the Pennsylvania Supreme Court reversed the judgment of sentence and ordered a new trial on an unrelat- Mimms, ed ground, 385 A.2d 334 (1978). EAGEN, In a Concurring Opinion, joined by C. MANDERINO, J., J. and Justice stated that the ROBERTS Court should amend its original order to add that Pennsylvania constitution as well as the federal constitution condemned conduct in that case. Consequently, there justices are at least three of the Pennsylvania Su- preme Court who have serious as to the questions parame- ters of lawful conduct under state law the context of ordering Vehicle Code violators out of their automobiles. simply
would issue a notice of violation and allow the offender proceed.” Robinson, supra, United States v. 414 U.S. at fn. S.Ct. at 477. *10 Inasmuch as the instant case is the first case since Mimms issue, this I am conclude to raise reluctant is, contention in the words of the frivo- Majority, “clearly the Mimms issue lous.” To the I believe that contrary, raises a of state constitutional law the significant question resolution of which more in the court appropriately belongs below. I would remand.9 Accordingly,
JACOBS, Judge, joins President this concurring dis- senting opinion.
v.
James C. GRIFFIN. Pennsylvania, Appellant, COMMONWEALTH of
v. Raymond HAMM. Pennsylvania, Appellant, COMMONWEALTH of HAMM, W. James Jr.
Superior Pennsylvania. Court of
Argued April 1977. July Decided Appellant permissible also raises the of the extent of the Mimms, body search of his incident to his arrest. As in Supreme United States Court based its decision United States v. Robinson, supra, parameters personal rights on the nature and guaranteed by the Fourth and Fourteenth Amendments of the United Shillingford, States In Constitution. 231 Pa.Su- per. (1975) (fn. 3), our Court noted that this issue remained unresolved as a remand, of state A matter law. therefore, opportunity would afford the lower court an address this issue.