Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 1728, in case of Commonwealth of Pennsylvania v. Gerald Dressner.
Lenard H. Sigal, for appellant.
John H. Isom, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
[ 232 Pa. Super. Page 155]
This appeal arises from the lower court's finding appellant guilty of the illegal possession of narcotics, for which a sentence of six to twelve months was imposed. Appellant Dressner now challenges the refusal of the lower court to suppress the evidence produced by the search of his automobile, arguing that the warrantless search was not a product of a valid consent.
In August of 1971, the Internal Affairs Bureau of the Philadelphia Police Department received information from another arrested policeman that appellant, Sergeant Dressner, was involved in the mishandling of confiscated narcotics which resulted in their sale by police to drug addicts. Because of this information, two inspectors for the IAB were sent to Dressner's home
[ 232 Pa. Super. Page 156]
to bring him downtown for questioning. Their superiors also instructed the inspectors to assure that Dressner brought his automobile with him since they had reason to believe he had concealed two packets of heroin in a magnetic key case in his car.
When the inspectors arrived at Dressner's home they found him baby-sitting his children. After they explained the situation to Dressner, he agreed to drive downtown to answer questions. He then procured the services of a babysitter and drove his car to IAB headquarters.
After some brief questioning, the inspectors asked Sergeant Dressner if he would mind if they searched his automobile. He said he would not mind, and moved his car into the garage area of the building and opened the trunk. After searching the car somewhat less than rigorously, the inspectors were unable to find any contraband. Dressner and the two inspectors then returned upstairs. During this period of time, the IAB determined that they should try another more thorough search of the car. Once again they asked Dressner if he would mind if they searched his car, and once again he consented. Again he drove his car into the garage and unlocked the trunk.
Because it was cluttered with lamp parts and fixtures, the trunk had not been intensively searched the first time. On this second search, however, the inspectors completely emptied the trunk with the aid of Dressner himself. One inspector then climbed into the trunk and ran his hand along crevices near the fenders and tail-light assembly. The inspector then felt a plastic bag lodged down in one of the apertures by the taillight. When the other inspector removed the bag, they discovered that it ...