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COMMONWEALTH v. ONE 1958 PLYMOUTH SEDAN (MCGONIGLE). (11/15/62)

November 15, 1962

COMMONWEALTH, APPELLANT,
v.
ONE 1958 PLYMOUTH SEDAN (MCGONIGLE).



Appeal, No. 14, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Feb. T., 1961, Miscellaneous Liquor Docket No. 4, in case of Commonwealth of Pennsylvania v. One 1958 Plymouth Sedan in possession of George McGonigle. Order reversed.

COUNSEL

Russell C. Wismer, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Liquor Control Board, appellant.

Louis Lipschitz, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 199 Pa. Super. Page 429]

OPINION BY ERVIN, J.

On December 16, 1960 two enforcement officers of the Pennsylvania Liquor Control Board were stationed on the Admiral Wilson Boulevard in New Jersey, the approach to the Benjamin Franklin Bridge leading into Philadelphia, Pennsylvania. At 6:30 a.m. on the above date the officers saw a black Plymouth four-door sedan, bearing Pennsylvania registration plates, approaching the bridge. The car was quite low in the rear and the officers followed the car across the bridge into Philadelphia and on Vine Street, west of Sixth Street, in Philadelphia, the officers stopped the car, identified themselves and questioned the operator, George McGonigle. In the rear of the car and in the

[ 199 Pa. Super. Page 430]

    trunk the officers found 375 bottles (31 cases) of high priced whiskey and wine not bearing Pennsylvania tax seals. The operator of the car, McGonigle, stated to the officers that he had been hired to deliver this liquor from Margate to Philadelphia for $30.00, that he knew it was unlawful but took the chance. McGonigle made no objection to the search of the automobile. The car and liquor were seized and McGonigle was arrested. The officers had neither a search nor a body warrant. A petition for the forfeiture of the car was filed in the court below and, after hearing, the petition was dismissed and it was directed that the car be returned to the owner. The court held that the seizure was founded upon evidence illegally obtained. The Commonwealth appealed.

The procedure for the forfeiture of this car is provided by § 601 of the Liquor Code (as amended by the Act of April 20, 1956), 47 PS § 6-601, and in effect states: "No property rights shall exist in any liquor, alcohol or malt or brewed beverage illegally manufactured or possessed, or in any still, equipment, material, utensil, vehicle, boat, vessel, animals or aircraft used in the illegal manufacture or illegal transportation of liquor, alcohol or malt or brewed beverages, and the same shall be deemed contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided."

The owner of the automobile presented no evidence and there can be no question but that the automobile was being used to illegally transport untaxed liquor from New Jersey into Pennsylvania.

The Fourth Amendment to the United States Constitution prohibits only unreasonable searches and seizures.

We repeat what we said in Com. v. One 1955 Buick Sedan, 198 Pa. Superior Ct. 133, 137, 138, 182 A.2d

[ 199 Pa. Super. Page 431280]

: "The leading case in this field is Carroll v. United States, 267 U.S. 132, 149, 69 L.ed. 543, wherein Chief Justice TAFT said: 'On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The 4th Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.' $"... At p. 153 it was further said: 'We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the 4th Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper ...


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