Commonwealth v. Collini
Commonwealth v. Collini
Opinion of the Court
The appellant, Joseph Collini, was convicted, after a trial without a jury, of possession of controlled substances and of possession of controlled substances with intent to deliver, and criminal conspiracy.
On June 24, 1975, at approximately 3:21 p. m., Upper Darby police patrolling in an unmarked car and not in uniform observed a vehicle driven by appellant commit traffic violations.
Appellant’s pre-trial motion to suppress the evidence of drugs found on appellant’s person and in his home, and his statement, was denied, the hearing judge concluding that, as to appellant, there had been probable cause for the arrest and that all items of evidence and the statement had been lawfully obtained.
We first consider whether the stop by the police of appellant’s vehicle for a Vehicle Code violation, without more, provides sufficient basis for the subsequent search of appellant’s person. In order to clarify our discussion of this issue, we shall assume arguendo that there was no arrest for possession of a controlled substance.
The instant case is readily and fundamentally distinguishable from Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). In Gustafson a local police officer in a Florida community saw the petitioner’s car, which had out-of-state license plates, weave across the center line of the road several times.
During a full search of the petitioner’s clothing, the officer discovered a cigarette box. He removed the box from the petitioner’s pocket, opened it, and found therein marijuana cigarettes. The petitioner was subsequently convicted of unlawful possession of marijuana. The United States Supreme Court affirmed the conviction, holding that “upon arresting petitioner for the offense of driving his automobile without a valid operator’s license, and taking him into custody, [the officer] was entitled to make a full search of petitioner’s person incident to that lawful arrest.” The court further stated that the fact of custodial arrest gave rise to the authority to search.
For a summary offense under the Vehicle Code, the defendant may be arrested without a warrant only as provided in the Vehicle Code. .
[Pa.R.Crim.Proc. 51A(l)(c) (1975).]
§ 6304 Authority to Arrest Without Warrant
(a) Pennsylvania State Police — A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.
(b) Other Police Officers — Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer making the arrest. .
75 Pa.C.S. § 6804.
In the case at bar, the officer had no probable cause to believe that appellant had been driving while under the influence of alcohol or a controlled substance; arrest is precluded under Section 6304(a) by the fact that the officer was not a member of the Pennsylvania State Police, and under Section 6304(b) by the fact that appellant is not a nonresident of Pennsylvania.
We next consider whether there were within the perception of the officer at the time of the stop circumstances such as would justify a search limited to a “pat-down” or “frisk” of the kind upheld by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The police officer’s ordering appellant to leave his vehicle was not an unreasonable intrusion. Pennsylvania v. Mimms, supra. In Mimms, police officers stopped defendant’s car for a Vehicle Code violation. One of the policemen told respondent to get out of his car. When he did so, the officer saw a large bulge under his jacket. Fearing that the bulge was a weapon, the officer frisked respondent and discovered a loaded revolver. Respondent’s convictions for carrying a concealed deadly weapon and unlawfully carrying a firearm without a license were affirmed by the United States Supreme Court. The Court held that the officer’s instructions following a lawful stop for the traffic violation to respondent to leave his car were justified as a reasonable intrusion upon respondent’s privacy on the grounds of the interest of the State in protecting its police officers. The court then concluded that the issue of the propriety of the search of respondent was controlled by Terry. The Court found that the facts available to the officer at the moment of the seizure or the search, that is, the sight of the bulge under respondent’s jacket, would have warranted a man of reasonable caution in the belief that the action taken (i. e., the frisk) was appropriate. See 392 U.S. at 21-22, 88 S.Ct. 1868. In the instant case, the search of appellant conducted by the officer following his order that appellant leave his vehicle was unreasonable. The facts available to the officer at the moment of the search would obviously not have warranted a reasonably cautious man in the belief that a
We turn now to consideration of whether the arrest of appellant for possession of a controlled substance was lawful, and whether the evidence seized from his. home and his subsequent statement to the police must be suppressed.
The stop of appellant’s car was legal because for a summary violation of the Vehicle Code. If a police officer has a legal right to be where he is when he sees contraband, he may seize it, under the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 466-68, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Davenport, 453 Pa. 235, 243-44, 308 A.2d 85, 89-90 (1973). An officer may also search, incident to a valid arrest, “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034-2040, 23 L.Ed.2d 685 (1969); Commonwealth v. Davenport, supra, 453 Pa. at 244-45, 308 A.2d 85.
In Commonwealth v. Kelly, 250 Pa.Super. 122, 378 A.2d 484 (1977), allocatur granted December 14, 1977, relied upon by appellee, we affirmed the conclusion of the lower court that the facts perceived by the arresting officer before the arrest for possession of a controlled substance constituted probable cause therefor. In the instant case, it is clear that the arresting officer was not in possession of facts such as would lead a reasonable man to believe that the offense of possession of a controlled substance had been committed. There was nothing, other than the officer’s subjective belief, to indicate that the item he seized from the interior of appellant’s vehicle was anything but a block of wood. The extent of the officer’s experience and training in drugs was a three-week course at the Philadelphia Police Academy, the content of which was not detailed at the suppression hearing. The officer had no special knowledge of peyote. At the hearing, samples of peyote were introduced as a defense exhibit. The peyote bore no resemblance at all to the block of wood seized from appellant’s vehicle. The block of wood measured one inch by one inch by three inches, was reddish brown and had a wood grain. The peyote was dull brown, between one-quarter and one-half inch thick and circular, having approximately the same diameter as a five-cent
Because not based on probable cause, the arrest of appellant was illegal. Therefore, the search of appellant’s person and vehicle pursuant to the arrest was illegal, and all evidence uncovered thereby must be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973). We conclude also that appellant’s consent to the search of his home, the evidence obtained thereby, and the appellant’s subsequent incriminating statement to the police are fruit of the illegal arrest and must be suppressed under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1973). Wong Sun does not require that all evidence obtained subsequent to illegal action on the part of law enforcement authorities be excluded. It must be determined “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint,” Id. at 488, 83 S.Ct. at 417; Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977); Commonwealth v.
Whether challenged evidence has been sufficiently purged of taint must be determined from the totality of the circumstances in each case. Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975). Additionally, where the defendant is in custody, the State has a heavy burden to show that the consent to search was voluntarily given. Commonwealth v. Smith, 470 Pa. 219, 368 A.2d 272 (1977).
In the instant case, appellant’s giving his consent to the police search of his home was not an act of free will sufficient to dissipate the taint of the illegal arrest. At the time he executed the consent form, appellant had been in police custody continuously from the time of his arrest, a period of more than one hour. He had been subject to
As noted above,
Similarly, appellant’s incriminating statement to the police must be excluded. The statement was made while appellant was under arrest, after more than three hours of continuous police custody. Since the Commonwealth has not met its burden of proving attenuation of the statement from the illegal arrest, the statement must be suppressed.
Judgment of sentence reversed and new trial granted.
. Respectively, 35 P.S. § 780-113(a)(16) and (30); and 18 Pa.C.S.A. § 903.
. The officers testified that they had observed the vehicle being driven at a high rate of speed, and that it had negotiated a left turn through an intersection on an amber or a red light. These are summary offenses under the Vehicle Code. See 75 Pa.C.S. § 6502(a).
. The trial court found that this was the only ground for appellant’s arrest.
. The hearing judge granted appellant’s wife’s Application to Suppress any and all verbal or written statements made by her, and all evidence seized by the police from appellant’s home as against her. The suppression judge concluded that evidence seized at appellant’s home was the result of a search illegal as to appellant’s wife, since her consent to that search had not been voluntary.
. The officer testified to observation of other suspicious circumstances as well. He stated that the occupants of the car looked back, and after they apparently saw him, the car proceeded across the highway and behind a store, and then turned onto another street.
. It was conceded by the parties that the officer had probable cause to make the arrest.
. The facts of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, the companion case to Gustafson, are similar. A District of Columbia municipal police officer observed Robinson driving an automobile. As a result of previous investigation, the officer determined that there was reason to believe that Robinson was driving after revocation of his operator’s license. The officer stopped Robinson’s car and respondent and his two passengers emerged. The officer then informed respondent that he was under arrest for “operating after revocation and obtaining a permit by misrepresentation.” Id. at 220, 94 S.Ct. at 470. During the search of Robinson which followed the arrest, the officer felt an object in Robinson’s coat pocket. The officer removed the object which turned out to be a crushed cigarette package, opened it, and found capsules containing a white powder which he thought to be, and which analysis later determined to be, heroin. The Supreme Court reversed the U. S. Court of Appeals for the District of Columbia Circuit’s en banc reversal of Robinson’s conviction for possession and facilitation of concealment of heroin, holding, as in Gustafson, that the search was reasonable because incident to lawful arrest for the purpose of taking suspect into custody. Id. 414 U.S. at 236, 94 S.Ct. 467.
. The Rules of Criminal Procedure provide for the issuance of a citation for a summary offense. Pa.R.Crim.P. 51(A)(1).
. 75 Pa.C.S. § 3731.
. See 75 Pa.C.S. § 102 (1978).
. Id.
. The arresting officer testified that when he stopped appellant’s vehicle neither appellant nor any of his passengers made any threats, and that he had no reason to believe that anyone in the vehicle could harm the officers or present any danger whatsoever.
. See note 4 supra.
Concurring Opinion
concurring.
I agree with most of what is said in Judge LIPEZ’s opinion, and therefore join in the order granting a new trial. I wish, however, to note one reservation.
The opinion “assume[s] arguendo that there was no arrest for possession of a controlled substance.” Majority opinion at 1046. I am uneasy with this assumption, for I find it unnecessary. The facts show that there was such an arrest. I agree with Judge LIPEZ that the arrest was unlawful because it was not based on probable cause. Therefore, the search incident to the arrest was also unlawful, and the fruits of that search must be suppressed.
As I see it, the difference between Gustafson and Robinson, on the one hand, and this case, on the other, is that in Gustafson and Robinson the arrest was lawful.
Reference
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- COMMONWEALTH of Pennsylvania v. Joseph COLLINI, Appellant
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