Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1974, No. 2783A, in case of Commonwealth of Pennsylvania v. Kenneth Woods.
Anthony J. Lalama, Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.
Robert L. Eberhardt and Charles W. Johns, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, 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.
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This appeal arises from appellant Kenneth Woods' conviction, following a non-jury trial, of possession with intent to deliver a controlled substance.*fn1 Appellant now contends that certain evidence seized as a result of a warrantless search of his automobile should have been suppressed because he did not voluntarily consent to the search.
A few days prior to April 12, 1974, Officer Bernard Ciganek of the Pittsburgh Police Department received
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reliable information that there was marijuana and dangerous drugs in the appellant's apartment. Pursuant to this information Officer Ciganek obtained and executed a search warrant for the apartment on April 12, 1974. Although appellant was not home when Officer Ciganek and two fellow officers arrived, appellant's roommate admitted them into the apartment. During the course of their search, which resulted in the seizure of a small quantity of marijuana and related paraphernalia from appellant's bedroom, appellant and another party entered the apartment carrying suitcases. When appellant identified himself he was arrested and given his Miranda warnings.
Officer Ciganek, prompted by the fact that appellant was carrying suitcases and that the informant had indicated a larger quantity of contraband would be found, questioned appellant as to whether he owned an automobile. Appellant denied that he owned an automobile even after Officer Ciganek confronted him with several parking tickets which were found in appellant's bedroom. When Officer Ciganek then found an automobile title registered in his name, appellant admitted ownership to a red Volkswagon. Upon completing the search of the apartment, Officer Ciganek asked appellant for permission to search the Volkswagon. When appellant did not respond to this request the officer stated that if appellant did not give his permission, he would procure a search warrant for the automobile. Once again appellant remained silent. Officer Ciganek then instructed his partner to call headquarters and have someone obtain a search warrant. At this point, appellant stated, "Okay, you can search it." Officer Ciganek then took appellant into the room where the other people were, and asked him if he understood the rights he was earlier advised of, and whether he was still granting permission to search his car. Appellant responded affirmatively to both questions.
Just prior to their arrival at the car, appellant told
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Ciganek that the contraband was in a duffel bag in the back of the car. Appellant then unlocked the vehicle, pulled back the rear seat, and removed the duffel bag. Subsequent analysis revealed this bag ...