Appeal from order of Superior Court, Oct. T., 1962, No. 14, reversing 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.
Paul M. Chalfin, with him Louis Lipschitz, for appellant.
Thomas J. Shannon, Assistant Attorney General, with him James Iannucci, Special Assistant Attorney General, J. Leonard Langan, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Roberts.
At approximately 6:30 a.m. on December 16, 1960, two officers of the Pennsylvania Liquor Control Board, stationed near the approach to the Benjamin Franklin bridge in New Jersey, observed a 1958 Plymouth sedan bearing Pennsylvania license plates proceeding toward the bridge in the direction of Philadelphia. Noting that "the car was low in the rear, quite low", the officers followed the automobile across the bridge into Philadelphia where they stopped and searched the automobile without first having obtained either a body or a search warrant. Their search revealed that the rear seat and back-rest of the automobile had been removed and that the rear and trunk of the automobile contained 375 bottles of whiskey and wine, none of which bore Pennsylvania tax seals.
Both the car and alcoholic beverages were seized. The Commonwealth instituted proceedings for the forfeiture of the automobile, pursuant to § 601 of the Liquor Code of 1951,*fn1 in the Court of Quarter Sessions of Philadelphia County. That court dismissed the forfeiture proceedings on the ground that the attempted forfeiture of the automobile was founded upon evidence illegally obtained, i.e., without a search warrant and without probable cause. The Superior Court reversed, three judges dissenting, and we granted an allocatur.
On appeal to this Court, we affirmed the judgment of the Superior Court.*fn2 (Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 201 A.2d 427). The basis of our decision was that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, applied only to criminal prosecutions and not to a forfeiture proceeding which we deemed civil in nature.
The Supreme Court of the United States (379 U.S. 927, 85 S. Ct. 323), granted certiorari and held that the exclusionary rule of Mapp does apply to forfeiture proceedings and reversed the judgment of this Court (One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 702, 85 S. Ct. 1246, 33 L.W. 4387). In so reversing, however, the United States Supreme Court stated: "Our holding frees the Pennsylvania court on remand to review the trial court's finding that the officials did not in this case have probable cause for the search involved, a question which it previously did not consider necessary to decide."
In line with the order and opinion of the United States Supreme Court, we now turn to a determination of the issue whether the enforcement officers had reasonable and probable cause to stop and search this automobile for contraband liquor. If they did have "reasonable and probable cause" to search the automobile, then the search and seizure of the alcoholic beverages were proper, the evidence was admissible and the automobile, on the basis of such evidence, was subject to forfeiture. If they did not have "reasonable and probable cause" to make the search, then the evidence revealed by the search was illegally obtained, was inadmissible under Mapp v. Ohio, supra, and the automobile was not subject to forfeiture.
The enforcement officers, as peace officers, are granted by statute ". . . police power and authority . . .
to arrest on view, except in private homes, without warrant, any person engaged in the unlawful . . . importation . . . or transportation, or having unlawful possession of liquor. . . . Such officers . . . shall have power and authority, upon reasonable and probable cause, to search for and to seize without warrant or process, except in private homes, any liquor . . . unlawfully possessed . . . imported or transported and any . . . vehicles . . . which are or have been used in the unlawful . . . importation or transportation of the same": Liquor Code of 1951, supra, § 209, 47 P.S. § 2-209. Section 209 sets forth the standard of conduct which controlled the power and authority of these enforcement ...