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COMMONWEALTH v. DUSSELL (07/02/70)

decided: July 2, 1970.

COMMONWEALTH
v.
DUSSELL, APPELLANT



Appeal from order of Superior Court, Nos. 656, 657 and 658, Oct. T., 1969, affirming judgment of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1968, Nos. 1504, 1505 and 1506, in case of Commonwealth v. Jack R. Dussell.

COUNSEL

John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.

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

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 439 Pa. Page 393]

Jack R. Dussell was convicted of burglary and other related offenses after a non-jury trial in Philadelphia. Post-trial motions were denied, and a prison sentence was imposed. On appeal the Superior Court affirmed the judgment. We granted allocatur and now reverse, because we conclude that evidence was admitted at trial

[ 439 Pa. Page 394]

    which was obtained through an unlawful search and seizure.*fn1

The relevant facts may be briefly summarized as follows: On December 18, 1967, at approximately 9:15 p.m. two police officers on routine patrol in the city of Philadelphia observed a 1954 Chevrolet automobile proceed through an intersection in violation of a red (stop) light. The officers pursued the car and stopped it a block away. The driver of the automobile identified himself as William Price and produced a driver's license and other identification. The passengers identified themselves as Jack Dussell and Frederick Zemaitatis. Price was unable to produce the owner's registration card and a search of the body of the car for such by the occupants proved fruitless. Price told the police that he was using the automobile with the permission of the owner whom he identified as a man named Mr. Lane -- "a fellow he had met in a restaurant on Elmwood Avenue."*fn2 This explanation was not sufficient for the policemen and they then requested that the trunk be opened. Price took the key from the ignition and opened the trunk.*fn3 Therein, the police saw a set of golf clubs in the original retail packaging, together with other items. Having read in the newspaper that a Pro Shop in the police district had been recently burglarized and golf clubs were stolen, the

[ 439 Pa. Page 395]

    police reasoned that the articles in the trunk were the product of this crime. Thereupon the officers took the three men and the car to police headquarters "for further investigation." The golf clubs and other items were seized by the police and subsequent investigation disclosed that at least some of the articles had been stolen in a burglary which occurred prior to the night involved. Dussell was arrested and convicted of participating in this burglary. At trial the seized items were admitted in evidence against him, over objection. It is now fundamental that if the property involved were the fruit of an unlawful search, the evidentiary use thereof was constitutionally impermissible and violated due process of law: Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961); Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967).

The Commonwealth does not, nor could it, contend that because the driver of the automobile was criminally liable for two violations of The Vehicle Code (Act of April 29, 1959, P. L. 58, 75 P.S. ยง 101 et seq.), i.e., proceeding through a red light and failing to have in his possession the owner's automobile registration card, that this, without more, permitted a warrantless search of the automobile.*fn4 But it does urge that, under the circumstances, the search was justified by the need to seize hidden weapons which might be used ...


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