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decided: January 9, 1969.


Appeals from orders of Court of Quarter Sessions of Philadelphia County, Jan. T., 1968, Nos. 1504 to 1508, inclusive, in case of Commonwealth of Pennsylvania v. Jack R. Dussell et al.


Paul R. Michel, Assistant District Attorney, with him Fortunata Giudice and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

John W. Packel, Assistant Defender, with him Walter Lowney and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Wright, P. J. Spaulding, J., concurs in the result. Jacobs and Hoffman, JJ., would affirm the orders below.

Author: Wright

[ 214 Pa. Super. Page 2]

We are here concerned with appeals by the Commonwealth from orders of the Court of Quarter Sessions of Philadelphia County granting pretrial applications of Jack R. Dussell and Frederick Zemaitaitis to suppress physical evidence and incriminating written statements. The question involved is set forth in

[ 214 Pa. Super. Page 3]

    the Commonwealth's brief as follows: "Where police searched the trunk of an automobile immediately after arresting its occupants upon probable cause, was the warrantless search, although contemporaneous in time and place and part of a single transaction with the arrest, nevertheless unlawful merely because police could have safeguarded the evidence from destruction while a search warrant was obtained". The lower court answered this question in the affirmative. We answer it in the negative, and therefore reverse. The factual situation appears in the following excerpt from the opinion below:

"On December 18, 1967, both defendants were passengers in a 1954 Chevrolet when it was stopped by a police patrol wagon for going through a red light. The driver of the car, William Price, was asked by the police officers for the appropriate identification but was unable to produce an owner's registration card. Price explained that the car was not his, but was borrowed from a friend. According to one of the officers present, Officer Daniel Galloway, Price was also unable to remember the friend's name. Contrary to Officer Galloway, defendant Dussell testified that Price was able to remember his friend's name and further advised the officers where the friend could then be found. At this point, Officer Galloway asked Price 'if he would mind opening the trunk . . . in order to identify the owner of the vehicle'. Price complied and inside the trunk Officer Galloway observed stereophonic tapes and a set of golf clubs, irons only, wrapped in cellophane. Officer Galloway remembered that golf clubs had recently been stolen from the Pro Shop at League Island Park. Accordingly, because he concluded that both the golf clubs and the car had been stolen, Officer Galloway took Price and the defendants to the police station.

[ 214 Pa. Super. Page 4]

"As a result of information received from interrogation of defendant Zemaitaitis (at the police station), a search warrant was obtained for Zemaitaitis' residence, where defendant Dussell also resided, although on a temporary basis. The residence was searched and certain property seized. Subsequent to this search, both defendants (while still in police custody) gave statements to the police incriminating themselves in the League Island burglary and several other crimes".

On January 18, 1968, Dussell was indicted at January Sessions 1968, as follows: Bill No. 1504 charged burglary of the motor vehicle of Richard Thompson, 23rd & Packer Avenue, and larceny therefrom of two photo copiers and a brief case. Bill No. 1505 charged burglary of the building occupied by Ryder Truck Rental at 1450 Warfield Street, and larceny therefrom of twenty-four blank checks and a check writer. Bill No. 1506 charged burglary of the building of Edward Kramer, 20th & Pattison Avenue, and larceny therefrom of golf clubs and bags, and a portable television. On the same date, Zemaitaitis was indicted as follows: Bill No. 1507 charged receiving stolen property, namely, two photo copier machines of Richard Thompson. Bill No. 1508 charged receiving stolen property, namely, checks of the Ryder Truck Rental.

In support of its orders granting the applications for suppression, the court below reasoned that "the initial stop was valid", and that the officers had "probable cause to arrest Price and the defendants in the belief that they had stolen the car". However, the court below concluded that the search of the trunk "was not reasonably incident to the arrest", because it "was not necessary to protect the officers, prevent the destruction of evidence or prevent ...

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