Appeal from judgment of sentence of Court of Common Pleas of Monroe County, April T., 1973, No. 129, in case of Commonwealth of Pennsylvania v. William Getz.
John P. Lawler, Public Defender, for appellant.
C. Daniel Higgins, Assistant District Attorney, and James F. Marsh, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Cercone, J., concurs in result. Concurring Opinion by Price, J. Watkins, P.j., and Jacobs, J., join in this concurring opinion.
[ 236 Pa. Super. Page 471]
Appellant was convicted by a judge sitting without a jury of burglary and larceny. Motions for a new trial and in arrest of judgment were filed and denied, and appellant was sentenced to 7 1/2 to 15 years imprisonment on the burglary conviction, and in addition was ordered to pay a $100.00 fine and make restitution. Sentence was suspended on the larceny conviction.
The facts of the case follow: On November 4, 1972, an Easton police officer received a message that an anonymous caller had informed the police of a "suspicious person in the area of the Star Cafe loading cases of whiskey into a U-Haul van." When the officer arrived on the scene he found the van with the side doors open and a female occupant in the front seat. He saw "approximately 15 to 18 cases of liquor stacked up inside the truck. . . . There were liquor control numbers on stickers stuck onto the cases." When appellant emerged from the van, the officer asked about the cases. Appellant said that the unsealed ones were for storage while the sealed ones contained liquor he had purchased. The officer asked for a purchase receipt, and appellant responded that he had one in his apartment. Appellant led the officer to a nearby stairway and up to his apartment on the second floor. The door to the apartment was held open by several cases of liquor and the officer saw other cases of liquor inside
[ 236 Pa. Super. Page 472]
the apartment. Upon reaching the top of the stairs, appellant turned and kicked the officer twice. A fight ensued, which took the parties into the kitchen of the apartment, onto the second floor landing, and back down the stairs. During the fight a second officer arrived, and the two officers arrested appellant for assault on a police officer. After appellant and the first officer were taken to a hospital, a warrantless search of appellant's apartment, the stairway, and the U-Haul van was conducted and 32 cases of liquor were seized, 14 from within the building and 18 from the van. When it was discovered that a State Store had been burglarized, appellant was arrested for burglary and larceny.
Appellant does not question the propriety of his arrest for assault; he does question the search and seizure.
When a police officer justifiably at the scene sees contraband in plain view, his observation is not a search within the meaning of the Fourth Amendment. Thus, no warrant is required. Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1972); Commonwealth v. Rota, 222 Pa. Superior Ct. 163, 292 A.2d 496 (1972); Commonwealth v. Bowers, 217 Pa. Superior Ct. 317, 274 A.2d 546 (1970). The 18 cases in the open U-Haul van were in the plain view of the officers. These facts are substantially indistinguishable from those ruled upon in Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973), where it was held that the warrantless seizure of contraband from the open trunk of an automobile was proper. We therefore hold that the seizure of the 18 cases from within the van was proper.
The situation is different as regards the 14 cases seized from within the building. The Commonwealth contends that this seizure was pursuant to a search incident to a lawful arrest and as such did not require a warrant.
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any ...