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COMMONWEALTH v. BRENNEMAN (09/22/75)

decided: September 22, 1975.

COMMONWEALTH, APPELLANT,
v.
BRENNEMAN



Appeal from order of Court of Common Pleas of Northampton County, May T., 1974, No. 651, in case of Commonwealth of Pennsylvania v. Ronald G. Brenneman.

COUNSEL

Alan B. McFall, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellant.

Mark S. Refowich, and Fishbone & Refowich, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Price, J. Watkins, P. J., joins in this dissenting opinion.

Author: Cercone

[ 236 Pa. Super. Page 121]

This is an appeal by the Commonwealth from the pretrial order of the court below suppressing evidence seized from the automobile of Ronald G. Brenneman, the appellee, following his arrest. Since the order of suppression will terminate the prosecution, the Commonwealth's

[ 236 Pa. Super. Page 122]

    appeal is permissible. Commonwealth v. Bosurgi, 411 Pa. 56 (1963).

The operative facts are as follows:

On May 26, 1974, auxiliary policeman Thomas Donio of the Borough of Hellertown, Northampton County, observed the appellee operating his vehicle at a speed Donio considered too fast for conditions. Based on this violation Donio pursued the vehicle. While in the process of stopping the vehicle, Donio observed the appellee place a bottle underneath the driver's seat. Donio then called for the assistance of a full-time police officer who questioned the appellee. Upon being informed by appellee that he had placed a bottle of wine underneath the seat, the officer informed appellee and his passenger that they were being charged with under-age possession of an alcoholic beverage. While being detained at police headquarters the appellee gave written consent to search his automobile. The subsequent search resulted in the seizure of a bottle of wine and slightly less than one ounce of marijuana. The appellee was then arraigned for possession of a controlled substance and under-age drinking.

The novel issue presented by this appeal is to determine under what circumstances an auxiliary policeman can perform regular police functions.

The Act of January 14, 1952, P.L. (1951) 2016, 53 P.S. §§ 731-737, is the sole authority for a municipality seeking to supplement its police force with auxiliary police. Section 2 of the Act, 53 P.S. § 732, provides that the chief of police may nominate persons as auxiliary policemen, ...


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