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COMMONWEALTH v. BURGOS (12/11/72)

decided: December 11, 1972.

COMMONWEALTH
v.
BURGOS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1485 of 1970, in case of Commonwealth of Pennsylvania v. Amado Burgos.

COUNSEL

D. Patrick Zimmerman, and Zimmerman & Going, for appellant.

D. Richard Eckman, First Assistant District Attorney, and Henry J. Rutherford, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., dissent.

Author: Hoffman

[ 223 Pa. Super. Page 326]

This is an appeal from the Order of the Court of Common Pleas of Lancaster County, Criminal Division. After waiving trial by jury, and stipulating that testimony produced at a suppression hearing be considered in determining his guilt or innocence, appellant

[ 223 Pa. Super. Page 327]

    was found guilty and sentenced to one to two years imprisonment for possession of marijuana in violation of The Drug, Device and Cosmetic Act.

The only question presented on this appeal is whether the lower court erred in denying appellant's motion to suppress. We believe it did.

On August 13, 1970, between 3:30 and 4:00 A.M., appellant was travelling east on the Pennsylvania Turnpike when he had a minor accident at a service plaza. Two troopers from the state police investigated the accident, suggested that appellant sleep if he was tired, then drove in an easterly direction, made a u-turn and proceeded west. Then, they observed appellant leaving the plaza on the wrong lane back to the turnpike. He corrected his mistake and proceeded back to the highway. The troopers made another u-turn, followed the appellant, and finally directed him to pull off the highway.

Appellant got out of his car and was told that he was under arrest for the summary traffic violation of going the wrong way on a one way street. At that time, as appellant was standing between his car and the police car, one of the officers (Officer Stofko) went to the passenger side of the appellant's car and attempted to open the door in order to look for "anything in violation of the law." Finding it locked, he requested that appellant open it, and appellant complied. When the door opened, a shaving kit belonging to appellant fell to the ground. The officer asked what it was. Appellant replied that it was his shaving kit and unzipped the top, exposing its contents. One of the officers observed a number of vials in the kit, one of which contained marijuana.

Appellant was again formally placed under arrest, and given his Miranda warnings. His car was locked and subsequently towed ...


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