Appeal, No. 86, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1961, No. 1 Miscellaneous Docket, in case of Commonwealth v. One 1955 Buick Sedan. Order affirmed.
Edward K. Nichols, Jr., with him Norris, Green, Harris and Higginbotham, for appellant.
Russell C. Wismer, Special Assistant Attorney General, with him George G. Lindsay and Horace A. Segelbaum, Assistant Attorneys General, and David Stahl, Attorney General, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 135]
A hurricane, named Mapp v. Ohio,*fn1 swept over our fair land last June. The present case is one of the numerous appeals coming to our Court as part of the backlash. It now becomes our duty to endeavor to reassemble the machinery for law enforcement in our Commonwealth.
It is apparently the view of many criminal defendants, as well as their counsel, that they may use Mapp as an escape hatch to be relieved from punishment for crimes of which there can be no reasonable doubt as to guilt. The Mapp case involved a search of a woman's dwelling house and pretty rough treatment was accorded to her by the police officers. It flatly decided that evidence obtained by searches and seizures in violation of the United States Constitution is, by that same authority, inadmissible in a state court. To put it another way, the right of persons and houses to be secure from unreasonable searches and seizures, guaranteed by the fourth amendment of the Federal Constitution, was made applicable to the states through the due process clause of the 14th amendment.
This proceeding was instituted by the Pennsylvania Liquor Control Board seeking a court order for forfeiture of a motor vehicle used in the illegal transportation of white untaxed whiskey. A motion to suppress the evidence and have the motor vehicle returned to the owner was presented to the court. The court below overruled the motion to suppress the evidence and ordered
[ 198 Pa. Super. Page 136]
the forfeiture of the motor vehicle. The owner appealed.
Two Philadelphia police officers testified they had a house in Philadelphia under observation for a period of four days (two days in each week prior to the arrest and seizure) as a result of information that there was an odor of alcohol in the area. Their observations led to the conclusion that a still was in operation at 7253 Saybrook Avenue. On the day of the arrest and seizure, September 14, 1961, while the property was under observation by the officers, the owner of the car, Scott, drove up to the property and entered. The officers knew that Scott "had a previous record of alcohol." The court below improperly excluded this testimony. The motor vehicle was being tried, not Scott. This evidence was admissible to show what the officers took into consideration on the question of probable cause: Husty v. United States, infra. Scott remained there about one hour during which time he made several trips from the house to the car and back again. On his last trip he carried a carton which he placed on the back seat of the car and drove away. The officers followed and stopped Scott about a block and a half away for investigation.
On the back seat of the car the officers found four one gallon jugs of a white untaxed whiskey. Scott was arrested and his car seized. The arrest and seizure were made without a warrant. After the arrest the officers secured a search ...