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COMMONWEALTH v. BOWSER (06/13/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 13, 1968.

COMMONWEALTH
v.
BOWSER, APPELLANT

Appeals from judgment of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, Jan. T., 1967, Nos. 615, 616, and 618, in case of Commonwealth of Pennsylvania v. Charles Bowser.

COUNSEL

Melvin Dildine, Assistant Defender, with him Herman I. Pollock, Defender, for appellant.

Samuel T. Swansen, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hannum, J. Dissenting Opinion by Hoffman, J.

Author: Hannum

[ 212 Pa. Super. Page 496]

On April 24, 1967, defendant-appellant, Charles Bowser, was brought to trial before the Honorable Theodore S. Gutowicz without a jury on charges of larceny, possession of burglary tools, malicious mischief, and conspiracy, as of bill numbers 615-618, January Sessions, 1967. Indicted as a co-defendant was one Rudolph Fleming, never brought to trial, owing to his demise. A demurrer was sustained to the malicious mischief bill, No. 617, and the defendant was found guilty of the remaining charges. Timely motions in arrest of judgment or for a new trial were made and denied. A sentence of not less than one nor more than five years was imposed on the larceny bill, along with concurrent sentences of one to three and one to two years imposed on the burglary tools and conspiracy bills, respectively. This appeal followed.

On December 5, 1966, at about 1:30 p.m., Officer Benham saw the defendant, with one Rudolph Fleming, in a 1957 Cadillac automobile, stopped in the middle of Wilder Street, approaching its intersection with 2nd Street in Philadelphia. Benham testified: "Like you would come up and stop for a stop sign; well, they just stopped there. The car was shut off and just stopped right in the middle of the street." The Cadillac was about 25 feet from a Bell Telephone Company public phone booth which was later found to have had its upper housing removed so as to expose the cash box.

Officer Benham testified that upon observing the vehicle he saw two men "hunched over" inside it and as he stopped his police car, the two defendants "sat upright." When Officer Benham asked the men for an owner's card and operator's license, neither was produced.

As he approached the vehicle, Officer Benham observed "several coins, of U. S. currency, on the front

[ 212 Pa. Super. Page 497]

    seat, in dimes, nickels and quarters; also, on the back seat was a rag and a can of Murray's Hair Pomade. On the floor, behind the front seat, was a crowbar, approximately 12 inches in length. On the front, on the hump of the front floor, was a red container containing several tools." On cross-examination the officer stated that when he first looked into the car he saw "several dimes and quarters on the floor, all over the seat." The red container included a four or five ounce glass, a screwdriver about 5 1/2 inches long, another screwdriver about 10 inches long, a third screwdriver about 8 1/2 inches long and a short-bladed linoleum knife.

Upon seeing the above items in the vehicle, the arresting officer, Benham, directed the defendants to drive the car to the police station for investigation, at which time Officer Benham followed it in his police car. Officer Benham searched the Cadillac at the police station.

The Cadillac's glove compartment yielded a second box of hair lanolin, two pairs of black gloves, a plastic tumbler with a broken glass inside and a long, bent spoon. The officer also found 70 dimes in the glove compartment and 32 dimes and 2 nickels under the front seat. Officer Benham noticed that the coins found on the seat and floor of the car were greasy.

Defendant Bowser was searched at the police station and was found to have 33 dimes, one nickel, four pennies and one dime-sized slug on his person. Fleming was found to have $7.12 in coins on his person.

Mr. C. Raymond Miller, a security agent with the Bell Telephone Company of Pennsylvania, testified that later the same day, he inspected a pay phone located about 25 feet from where the Cadillac had been parked. Miller testified that the upper housing of the pay phone had been removed, exposing the cash box,

[ 212 Pa. Super. Page 498]

    and that scratch marks were found on the lower housing.

Miller stated that the aperture leading into the cash box was about one inch square so that a finger could not enter very far into the four-inch square cash box located below the aperture. He stated that it was impossible to testify as to whether any money had been removed from the telephone but that there was a white vaseline-type substance at the aperture and three or four dimes and nickels lying at the bottom of the cash box. When asked how coins could be removed from an opened cash box, Miller testified: "Through the use of this vaseline-type substance and an ice cream spoon or coffee spoon inserted into the aperture and stirred around, the coins stick to the substance, it is pulled out into a bag or cup, and continued until it's down to the point where you can reach no more." Miller thereafter identified the long, bent spoon and Murray's Hair Pomade found in the Cadillac as the type of equipment to which he was referring in the above quoted testimony.

The defendant contends that his arrest was unlawful because the arresting officer did not observe any unlawful act and did not have knowledge of any felony with which he could have been charged at that time, and that as a result the evidence seized was inadmissible.

Defendant further contends that the search of his person and automobile at the police station was also unlawful because it was not incident to his original detention.

The defendant's first contention is answered by the case of Commonwealth ex rel. Bowers v. Rundle, 200 Pa. Superior Ct. 496, 189 A.2d 910 (1963), where the officers stopped an automobile which was being operated without lights and, while examining the registration

[ 212 Pa. Super. Page 499]

    card, they observed cases of whiskey in open view in the car. We held that the stopping of the automobile was proper for the protection of highway users and that the mere looking at an object which was plainly visible did not amount to a search nor does its taking amount to a seizure.

The Bowers case was cited with approval in Commonwealth v. Anderson, 208 Pa. Superior Ct. 323, 222 A.2d 495 (1966), where two cruising police officers observed a car being operated erratically and stopped it to determine the condition of the driver. They observed a suspicious package in the car and required the defendant to drive his car to the police station.

Judge Watkins, speaking for a unanimous court, said: "However the officers acted with great prudence. They could have arrested the appellant for a vehicular code violation then and there, but having seen the suspicious package decided to complete the investigation at the police station. To let the automobile go would invite the destruction of the contraband and the courts have made a distinction as regards reasonableness of search between buildings and motor vehicles."

Judge Watkins also quoted from Ellison v. United States, 206 F. 2d 476, where it was said: "If an officer sees the fruits of crime -- or what he has good reason to believe to be the fruits of crime -- lying freely exposed on a suspect's property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him."

The foregoing language is particularly applicable to the present case. The police officer saw the automobile stopped "in the middle of the street." When the defendant was unable to produce a driver's license or an owner's card, the officer was fully justified in

[ 212 Pa. Super. Page 500]

    taking the defendant and the car to the police station for further investigation to determine, inter alia, whether the car had been stolen. In this situation, he was not obliged to close his eyes to the burglary tools and the obvious fruits of a larceny which were exposed to his view. The defendant was properly arrested and the property taken was properly introduced into evidence.

With regard to the additional search of his person and the car at the police station, they flowed naturally from, and were part and parcel of, the normal and logical consequences of the arrest.

In Commonwealth v. Querubin, 211 Pa. Superior Ct. 360, 236 A.2d 538 (1967), the lower court suppressed the evidence seized by the police at the police station where the defendant had been taken after his arrest, on the ground that the search was not contemporaneous to the arrest. We reversed, and approved the language of Charles v. United States, 278 F. 2d 386, 388-89 (C.A. 9th Cir. 1960), as follows: "It seems to us that a search of the person of the accused, even for the purpose of uncovering evidence of a crime other than that which is charged, is generally incident to a valid arrest. Power over the body of the accused is the essence of his arrest; the two cannot be separated. To say that the police may curtail the liberty of the accused but refrain from impinging upon the sanctity of his pockets except for enumerated reasons is to ignore the custodial duties which devolve upon the arresting authorities. Custody must of necessity be asserted initially over whatever the arrested party has in his possession at the time of apprehension. Once the body of the accused is validly subjected to the physical dominion of the law, inspections of his person, regardless of purpose, cannot be deemed unlawful."

[ 212 Pa. Super. Page 501]

It follows that the property taken at the police station was also properly introduced into evidence.

The defendant's final contention is that the evidence was insufficient as a matter of law to sustain a conviction. The Commonwealth concedes that its evidence was circumstantial. Nevertheless, if believed by the trial judge, as it was, it established the guilt of the defendant. He took the stand and offered an explanation of his possession of the coins but his story was not believed by the trial judge. Judge Gutowicz said of defendant Bowser's testimony: "The Court rejected his testimony as not worthy of belief and resolved the issue of credibility in favor of the Commonwealth's witnesses." The circumstantial evidence was sufficient to support the verdict. See Commonwealth v. Hicks, 209 Pa. Superior Ct. 1, 223 A.2d 873 (1966). His motions in arrest of judgment and for a new trial were properly dismissed.

Judgment of sentence affirmed.

Disposition

Judgment affirmed.

Dissenting Opinion by Hoffman, J.:

I would reverse the judgment of sentence of the lower court and grant a new trial on the ground that the evidence taken from the glove compartment and from under the front seat of the car should have been suppressed at trial.

The officer who originally detained appellant stated that he saw certain articles in plain view in the car and became suspicious. At that time, he did not search the car, but asked appellant and his companion to drive the car to the station for investigation. At the station, appellant, his companion, and the car were thoroughly searched. Beside the items in plain view in the car, the officer found several other articles in the glove compartment and under the front seat. The above search was effectuated without a warrant.

[ 212 Pa. Super. Page 502]

Appellant contends that the search of the car at the station and the seizure of certain articles violated his rights under the Fourth and Fourteenth Amendments. More specifically, appellant argues that the search was not done incident to an arrest, and therefore, a warrant was required.

It has long been a rule of law that a warrantless search is permissible, if it is incident to an arrest and done in a reasonable manner. Weeks v. United States, 232 U.S. 383 (1914); Carroll v. United States, 267 U.S. 132 (1925); Preston v. United States, 376 U.S. 364 (1964); Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968). When such a search is executed, however, it must be done "by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime -- things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control." Preston v. United States, supra at 367.

In the instant case, appellant and his companion were not arrested when they were originally detained in their automobile. At that time, the officer who detained them stated that he only had a suspicion that something was wrong, and that the reason for having the car taken to the station was to check to see if it was stolen. Only after the police learned that certain crimes had occurred and that the search of the car yielded other evidence, were appellant and his companion linked to the crimes which they are presently appealing. The search of the car at the station, therefore, cannot be deemed incident to an arrest. Rather, the arrest in this case culminated as a result of an exploratory search.

Even if the search of the car was done relatively contemporaneous with an arrest, it is my opinion that

[ 212 Pa. Super. Page 503]

    a search warrant was required. The exigencies that permit a warrantless search of a vehicle had passed. There was no longer any fear of destruction of specific evidence, no fear of escape, and no fear that weapons in the car would be used to injure another person. Instead, the search was made out of the presence of appellant or his companion for exploration purposes, and indeed yielded evidence that was used at trial to convict appellant.

When searches are in the nature of general exploration for evidence, the search must be condemned as a violation of the Fourth and Fourteenth Amendments. See Commonwealth v. Harris, supra; Preston v. United States, supra. The Preston decision exemplifies this proposition and is similar to the case at bar. In Preston an arrest for vagrancy was made on the ground that the defendants were acting suspiciously in an automobile. The men were searched for weapons and taken to the police station. Their automobile was towed to a garage. After the suspects were questioned, the vehicle was searched. The search revealed items which linked the defendants to a conspiracy to commit robbery. On review of the conviction, the Supreme Court of the United States stated that the warrantless search was improper and the evidence should have been suppressed on the ground that the search was too remote in time or place. In the instant case, appellant was booked on suspicion; and, only after a search of the vehicle in the custody of the police, as in Preston, was the appellant linked to a specific crime. In this case, as well as in Preston, there was no need to make an immediate search of the vehicle, nor was the vehicle impounded for a specific purpose. See Cooper v. California, 386 U.S. 58 (1967). Accordingly, a search warrant was requisite to any search of the vehicle.

[ 212 Pa. Super. Page 504]

In summary, I would hold that Preston v. United States, supra, and Commonwealth v. Harris, supra, are controlling, and the evidence seized from the glove compartment and from under the front seat of the automobile should have been suppressed. I would, therefore, vacate the judgment of sentence and order a new trial.

19680613

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