Commonwealth v. Zock
454 A.2d 35
Pa. Super. Ct.
1983
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*3 HOFFMAN, PRICE, and JJ. Before CAVANAUGH PRICE, Judge: Zock, a new Steven appellee, granted

The court below marijua- possession him guilty a found jury trial after na intent with deliver. The new trial was granted because evidence admitted against Zock was the allegedly product illegal of an search by police officers.

On May Pennsylvania two State Police Troopers went to the residence of William Jackson for the purpose of serving an arrest on him for a drug charge. Upon arrival, Zock, Trooper Mechling appellee observed whom he knew, walking rapidly into Jackson’s residence. Trooper Rain was met at the front by Stephen door who L’Angelo Trooper advised Rain that he was in charge premises of the and that not at L’Angelo Jackson was home. permitted officers to enter premises search for Jackson. bedroom,

In an upstairs troopers plain found view twenty-two plastic bags, clear each containing about one pound marijuana. The officers seized the marijuana, car, placed it and premises, secured the order- ing approximately persons ten in the gather house to on porch—terrace a front area. Corporal Lynn arrived to aid officers, and Rain was Trooper dispatched to for a apply search warrant to search the remainder of the premises. Lynn positioned himself to watch one Mechling door and positioned himself to only watch the other door. While premises were thus secured pending arrival of a search warrant, appellee, Trooper friend of asked Mechling, for Mechling permission up to clean the yard. Mechling granted Zock’s request. thereafter,

Shortly several of the remaining individuals gathered around Trooper Mechling kept his attention. Mechling then noticed running away from the officers *4 and into the woods. saw that Mechling carrying Zock was suitcases, three one of which he recognized having as been in the bedroom from which the in marijuana plain view had been seized. The officer chased and Zock in apprehended the woods. Mechling noticed that there awas ladder lead- ing to a second floor bedroom at the rear of building the from which Zock had run the toward woods. Zock and the three porch—terrace suitcases were returned to the to area the Trooper await arrival of Rain with the search warrant. returned, Rain Trooper When warrant was served and were The opened. suitcases suitcases contained a total plastic six clear one twenty pound bags of marijuana. then arrested for Appellee possession with intent to marijuana. deliver

After the court below refused his motion to suppress the suitcases, in marijuana found found guilty jury Subsequently, a trial. the lower court granted a new trial reconsidering determining after that the contents suppressed. of the suitcases should have been The court found the search of the suitcases to be outside premises. the warrant issued for the Jackson It was also determined that there were no exigent circumstances to excuse the obtaining second warrant before searching taken from Zock. to attempts justify the officers’ ac- grounds.

tions on two The first contention is that required suitcase search would not have a warrant because it was conducted incident to a lawful disagree. arrest. We However, the second is allegation the search was it permissible because was within the ambit of the warrant premises. agree

issued to search the Jackson We and for this reason reverse the of a grant new trial.

We first address the contention that the search warrant, proper would be even if not authorized aby because it was incident to a lawful arrest. Warrantless searches of areas immediately accessible to an arrestee are permitted protection for the of the officer or arresting prevent the destruction or concealment of evidence. Com monwealth v. 489 Pa. A.2d Long, present Under the circumstances Trooper Mechling had cause to probable believe the suitcases Zock was run ning illegal off with contained evidence of drug trafficing. Levesque, See Commonwealth v. 469 Pa.

(1977). Nevertheless, the limit of the trooper’s authority if, such a situation is to seize the as under suitcases circumstances he does not find present necessary it protect conduct an immediate search to himself or prevent *5 94 35-36).

the destruction of evidence. R.R. Once under {See control, normally may not be searched un- police luggage has been issued. United less a search warrant See States 1, 2476, Chadwick, 97 53 L.Ed.2d 538 v. 433 U.S. S.Ct. (1977). search of the have bags A warrantless would been case, in the the facts of which are similar present unlawful 753, Sanders, 442 99 S.Ct. to those of Arkansas v. U.S. 2586, (1979) in 61 L.Ed.2d 235 that: had it exclu- luggage

the officers had seized control at the time of the search. within their sively slightest danger there was not the Consequently, its contents could have removed luggage] or been [the could before a valid search warrant be obtained. 762, (quotation at at 2592 marks and citation Id. 99 S.Ct. Chadwick, omitted). v. 433 U.S. at Accord United States 32, 15, 2485, Timko, 491 Pa. 97 at Commonwealth v. S.Ct. 37-38, 620, (1980). 417 A.2d 622-23 The Commonwealth for a asserting exemption requirement when an establishing the burden of its actions search warrant bears Sanders, exemption. supra, come Arkansas v. within 752, 2034, 395 89 23 v. U.S. S.Ct. California, Chimel 36, (1969), 869, 24 L.Ed.2d 685 reh den. 396 U.S. 90 S.Ct. Timko, (1969), 124 The supra. L.Ed.2d carried the of establishing Commonwealth has not burden arrest, in light the search was valid as incident to a lawful luggage during rule that seized an general lawfully arrest, placed wholly police and thereafter within control only can searched after warrant is obtained.1 be Recently, Supreme expanded the United States Court 1. probable based on cause to search an automo- warrantless searches bile, probable permits holding cause a warrantless search of that such contents, including luggage all of a car’s and other containers found 798, Ross, the car. United States v. 456 U.S. 102 S.Ct. 72 L.Ed.2d however, Court, Ross, noted the distinction between probable cause to search a car in which where had located, Chadwick, (and happened the instant to be and cases such as case) only probable particular police have cause to search in which cases, luggage. expecta- In the latter there is no lessened articles of any exigency privacy, in the characteristics tion of nor other inherent justify personal luggage, a warrantless search after a that can 815-16, at 72 L.Ed.2d at lawful seizure. U.S. at 102 S.Ct. We thus the contention reject that even if not autho *6 warrant, by rized the search was valid as incident to a lawful arrest. The Commonwealth’s second contention is valid, the search however: was authorized because it was within the of a for the premises warrant issued from the bags. which absconded with

Appellee Zock and the court below have correctly noted a search premises that warrant issued for the or effects of a particular person police cannot be extended by officers to include a search of not things belonging to or person. under the control of that Commonwealth v. Pla tou, 29, (1973) 455 Pa. 312 A.2d 32 cert. denied 417 976, 3183, U.S. 94 41 L.Ed.2d Platou, S.Ct. 1146 In id., officers awith warrant to search the premises an also belonging individual searched suitcases to a guest who to happened present they be when arrived. In Platou the police were told by guest that the suitcases belonged to him, and not to a resident of the premises. present The Platou, however, case is clearly distinguishable be police cause the were never informed that the property belonged to other than the anyone premises. owner They initially saw the suitcases in a bedroom from which had in they plain time, seized At marijuana view. that and at all until arrived, times the search warrant the officers could properly assume the suitcases part were a of the premises. Sellers, Jackson In Commonwealth v. 236 Pa. 191, Superior (1975), Ct. we stated that after obtaining a search warrant for the premises police are expected to search and any bags pocketbooks around, lying drawers, as well as dresser and clothing. closets “It would preserved 588. The Court thus the rule that a warrant must be searched, particular luggage noting obtained before such items of are person’s expectations privacy personal luggage that "a are sub- automobile,” 811, stantially greater than in an 456 U.S. at 102 S.Ct. at 2165, Chadwick, (quoting 72 supra), L.Ed.2d at 585 United States v. stating practical problems and further that “the associated with the temporary luggage during period necessary detention of of time significantly obtain a warrant are less than those associated with the 811, 2166, detention of an automobile.” 456 U.S. at 102 S.Ct. at L.Ed.2d at 585. for the duty dereliction of officers fail to have been a part were of the inspect objects apparently areas and which and under the control of covered premises Sellers, occupant].” Pa.Superi [the at in the present at 344 A.2d 691. or Ct. case, Sellers, handbag presumptively subject like the police: “could deter logically to search because have part general that of the contents pocketbook mined at at 344 A.2d 691. Pa.Superior of the room.” 236 Ct. for the required lug A search warrant would be separate clearly if the were first notified gage only not to of the guest to a a resident bags belonged Platou, Therefore, in the instant as in premises, supra. case, if to the that the expressly Zock had stated officers *7 his, a warrant have been suitcases were second would bags. for a search the required contends, however, by merely attempting Zock that from he premises, the suitcases secured to abscond with owner, a act” their by identified himself “nonverbal as so a search of premises longer justified the warrant no that it is from clear that bags. disagree, the We because far with the suitcases identified him as running away Zock’s that not own quite possible owner. It is Zock did or their at time he luggage any except the when possess may the Zock instead have running from house. been away owned attempting help drugs, believing to friend who advantage of his prevent discovery by taking he could their It is also that friendship Trooper Mechling. possible with that any acted the mistaken belief without other on by the contraband he would incriminated connection to be in a is found. marijuana his mere house where presence further as Zock would speculate why need not We from a marijuana to remove house about to be attempt motive, troopers. appellee searched state Whatever his he the suitcas possessed not more than that any has shown from alone did not running es the house. This act while that reasonably concluding at all police preclude prem- times the suitcases were a part other relevant Platou, In ises to be searched. it was supra, “undisputed” premises that the resident of for which the warrant was issued “had no control over” the effects searched. 455 Pa. “Moreover, at 312 A.2d at 32. the police before under- taking their search were on notice that the suitcases be- longed guest].” Id. [a

Because Zock did not claim expressly drug-filled part suitcases were his and not a of the premises, the permitted officers were to assume under the circumstances premises warrant continued force and authorized a search of the bags. Thus evidence was properly admitted because it was within the a search premises. issued for the the order

Accordingly, granting appellee’s motion for a new trial is reversed the case is remanded for sentenc- ing. Jurisdiction is not retained.

HOFFMAN, J., dissenting files a statement.

HOFFMAN, Judge, dissenting: I respectfully police dissent. The here should have ob- tained a second warrant before searching appellant’s lug- After gage. appellant returned from the yard, control, under firmly and no circumstanc- exigent compelled es the immediate warrantless search as they might an Davis, automobile case. See *8 Pa.Superior (1979) (Common- Ct. prove wealth must exigent circumstances clear and convincing evidence). Moreover, the majority draws con- inferences from the trary Appellant’s same facts. nonver- bal act of the suitcases carrying being was the basis of his convicted of their possessing contents. Yet the majority enough holds that this act was not for purposes seeking to notify appellant officers that laid claim to the suitcases as his. The refused to lower court such accept reasoning, and so do I. I would Accordingly, affirm suppression the lower court’s order.