Appeal from judgment of Court of Quarter Sessions of Fulton County, June T., 1964, No. 15, in case of Commonwealth of Pennsylvania v. James LaValle.
Harvey C. Bridgers, Jr., with him Maxwell & Bridgers, for appellant.
Merrill W. Kerlin, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 208 Pa. Super. Page 25]
This appeal is from a judgment of sentence following a finding of guilt by Hon. W. C. Sheely in a non-jury trial on an indictment charging the crime of possessing narcotics.
The only issue raised is whether the search of appellant's automobile which revealed the presence of heroin and marijuana, made without a search warrant, was in violation of appellant's constitutional rights. Appellant admits in his brief that the officer who made the search had sufficient information on which to secure a search warrant but contends that he also had sufficient time to secure one and not having done so the search without a warrant was illegal under the Fourth Amendment of the United States Constitution and the evidence recovered thereby inadmissible.
The facts as found by the lower court are stated in its opinion as follows:
"On April 9, 1964, about 10:00 P.M., Trooper Eugene M. Czanca of the Pennsylvania State Police received a call at the Everett barracks from George
[ 208 Pa. Super. Page 26]
Collett, Chief of County Detectives of Allegheny County, stating that some time during the night a Ford Falcon coupe bearing a certain registration number would travel west on the turnpike and that its two occupants, at least one of whom was a negro, would possess narcotics. With this information Trooper Czanca proceeded to Cove Valley Service Station and waited there about twenty or twenty-five minutes when he saw the vehicle answering the description and bearing the registration number indicated come into the service area at the gas pumps. He approached the automobile and asked the operator for his cards and received the cards of Ruben Epps. Epps said he thought the car belonged to Lavalle, but Lavalle said he had borrowed the car since his car was in the garage.
"The Trooper then took the men to the police car and asked Epps for the key to the trunk stating that he was going to search the car. Epps gave him the keys and neither defendant objected to the search. In the trunk he found a black garment bag containing clothing and in the clothing he discovered 25 'decks' of silver tin foil packs of white powder and a bag containing loose powder, all of which was later identified as heroin. Lavalle admitted owning the clothing and admitted that the packets contained heroin and that he knew that the 'stuff' was in the car.
"The two defendants admitted at the hearing on the motion to suppress evidence that no objection was made to the search but denied that Epps surrendered the keys to Czanca. They both testified that Czanca took the keys from the ignition, Lavalle stating that the engine was running and Epps stating that he had cut the motor ...