Appeal from the Order of Court of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7400887A. No. 622 April Term, 1975.
John J. Hickton, Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellant.
Alan L. Carb, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 244 Pa. Super. Page 157]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Allegheny County granting defendant-appellee's motion to suppress physical evidence.
Initially, we determine that the Commonwealth has the right of appeal from this order. It is clear that the Commonwealth has no other evidence against the appellee and, if the suppression order is upheld, the prosecution will necessarily terminate. Our Supreme Court has consistently held that the Commonwealth may appeal from an adverse ruling in a criminal case where the question involved is purely one of law, but cannot appeal where the reason for the adverse ruling is an admixture of law and facts. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961). On the present appeal the question is purely one of law and the Commonwealth may appeal. Commonwealth v. Bowden,
[ 244 Pa. Super. Page 158456]
Pa. 278, 309 A.2d 714 (1973); Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973).
The facts of the case, as found by the hearing judge, are as follows:
On January 21, 1975, at approximately 10:20 P. M. two Mt. Lebanon Township police officers came upon appellee's automobile resting diagonally against a metal utility pole on Washington Road. The front end of the automobile was damaged, apparently from impact with the pole, and the automobile was inoperable. Appellee, John W. Brandt, was alone in the driver's seat and appeared incoherent. When the officers attempted to remove him from the automobile, he became combative. Handcuffs and stretcher restraints were needed to transport him to the hospital.*fn1 As part of routine police department procedure where an automobile is to be towed, the police inventoried the contents of the automobile. During their inventory the police found a brown paper bag under the front seat and, upon opening the bag, discovered a plastic bag of suspected marijuana.*fn2 Relying on our Supreme Court's decision in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), the hearing judge granted appellee's motion to suppress holding that
[ 244 Pa. Super. Page 159]
any warrantless search of an automobile must be justified by probable cause, and that there was no probable cause to search in the instant case. Because we agree with the Commonwealth's position that warrantless inventory searches are not per se ...