No. 536 April Term, 1976, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7508962A.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.
John J. Dean, Assistant Public Defender, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files an opinion in support of affirmance in which Hoffman and Spaeth, JJ., join. Price, J., files an opinion in support of reversal in which Jacobs, President Judge, and Van der Voort, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who heard this appeal being equally divided, the order is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The facts of this case as summarized by the lower court, are as follows:
"Patrolman Caldwell, a Mt. Lebanon Township police officer, received a radio message on November 11, 1975, indicating that there had been an attempt to cash a stolen check at an area bank. The check passer was described as a black female, afro hairstyle and light colored cap, wearing a dark pantsuit. The suspect allegedly entered a maroon convertible with a dirty top. The officer observed a vehicle, similar to that described in the radio dispatch, occupied by three blacks. The officer stopped the vehicle and as he approached the car he observed one passenger wearing a dark pantsuit, with an afro hairstyle wig and a light colored cap sitting at the passenger's feet.
"The occupants were placed under arrest and were transported to the Mt. Lebanon Police Station. Immediately thereafter, the vehicle was towed at the police station where a vehicle inventory search took place. Patrolman Caldwell testified that the Mt. Lebanon Police Department has a standard procedure to complete a Vehicle
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Inventory Sheet whenever a police tow is ordered. This procedure is used in every case where a vehicle is impounded regardless of what charges are made against drivers or passengers, according to the officer. The glove compartment, the seating area and the contents of the trunk are inventoried as a matter of course and the same procedure was employed in the instant case. A search of the trunk revealed a box containing a 12 gauge sawed-off shotgun. Further, unendorsed and blank checks were strewn about the trunk."
The lower court suppressed all evidence which was seized from the vehicle at the Mt. Lebanon Police Station finding that, "the inventory search of the defendant's car was more realistically an investigative search without warrant and consequently violated the defendant's Fourth Amendment rights." We agree.
In Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238 (1976) we were faced with the question of whether warrantless inventory searches are per se unreasonable, and held that the reasonableness of the search turns on the facts and circumstances of the particular case. We also noted that absent probable cause, a search of an automobile is reasonable provided that the Commonwealth prove that the vehicle was lawfully within the custody of the police and that the search was in fact an inventory search, not an investigative search. Commonwealth v. Brandt, 244 Pa. Super. at 162, 366 A.2d at 1242. As to this second element, the mandate of Brandt is clearly that:
"The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence." Id.
After analyzing the facts and circumstances of the case at bar, the hearing judge concluded that the search of appellee's automobile was an investigative search rather than an inventory search. Initially, we find that a lower court's determination that a purported inventory is in fact an investigative search is better characterized as a conclusion
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of law rather than a finding of fact. This conclusion, however, is based upon findings of fact and issues of credibility ...