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COMMONWEALTH PENNSYLVANIA v. JOHN J. LYONS (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN J. LYONS, JR., APPELLEE



No. 63 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on August 2, 1976, granting appellee's Motion to Suppress Evidence at No. CC7603813A.

COUNSEL

Robert E. Colville, District Attorney, Pittsburgh, for Com., appellant.

Raymond Radakovich, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion, in which Jacobs, President Judge, joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 257 Pa. Super. Page 143]

The Commonwealth has taken this appeal from an order of the lower court suppressing certain gambling paraphernalia, namely poolmaking and numbers sheets. The evidence was discovered on appellant's person and in his car following his arrest for various Motor Vehicle Code violations. There being no real dispute that the court's suppression order is being challenged on a purely legal basis and has the effect of putting the Commonwealth out of court with respect to the gambling violations charged, we will allow the appeal. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238 (1976); Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975). Since we agree with the Commonwealth that the court's order suppressing the evidence was in error, we will reverse and remand the case for trial. The relevant facts are as follows.

At approximately 4:20 A.M. on May 17, 1976 several uniformed Pittsburgh Police Officers were parked in two patrol cars in a grocery store parking lot when they observed appellee driving his automobile in the wrong direction on an adjacent, one-way street. Both patrol cars pursued the vehicle and brought it to a halt on the side of the street, although the engine continued to run. When one of the officers asked appellee to produce his operator's

[ 257 Pa. Super. Page 144]

    license and motor vehicle registration, which he could not, the officer observed that appellee's eyes were glassy, his speech was slurred, and his breath bore the odor of alcohol. The officer therefore ordered appellee from his car and placed him under arrest, noting that he could not walk without staggering. One of the officers then got into appellee's car to turn off the ignition and lock the doors so that the car would be secure for the night. At that time the officer observed numbers slips in plain view on the front seat of the car. Contemporaneously with seizing the numbers slips and securing the car, the police were engaged in frisking appellee to determine whether he had any identification, weapons or additional numbers slips on his person, whereupon they discovered more slips in his pocket. All the slips were made of rice paper which is readily soluble in water.

Upon hearing the recitation of these facts the court suppressed all the numbers slips, reasoning that neither the search of appellee's car nor the search of his person was justifiable without a warrant pursuant to the Fourth and Fourteenth Amendments of the Federal Constitution. The court did not specifically reach appellee's additional assertion that his rights under the Constitution of the Commonwealth of Pennsylvania were also violated.

At the outset it should be noted that the suppression court did not have the benefit of the United States Supreme Court's recent decision in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) when it made its decision in this case. In Mimms the United States Supreme Court reversed the Pennsylvania Supreme Court and held that a traffic violator, properly detained at roadside, may be ordered from his car during the necessary exchange of information and credentials pursuant to the stop. Since Mimms was detained solely because his automobile had an expired license, a fortiori the police officers' ordering appellee from his car on the circumstances of this case did not run afoul of the Federal Constitution.

[ 257 Pa. Super. Page 145]

Having properly ordered appellee from his car and placed him under arrest, the next question is whether the police could enter appellee's car to turn off the engine and lock the doors. Of course, if the police were constitutionally entitled to enter the car, they could seize the gambling paraphernalia which then came into plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973); Commonwealth v. Watkins, 217 Pa. Super. 332, 272 A.2d 212 (1970). There can be little rational questioning of the propriety of the police efforts to secure appellee's automobile; their conduct did not approach the intrusion unanimously approved by the Supreme Court in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). See also Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Cf. Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238 (1976). Appellee was manifestly and indisputably in no condition to operate the vehicle himself, and it would have been an act of wanton negligence for the police to have left the vehicle unattended with its engine running and doors unlocked.*fn1 Hence, the discovery and seizure of the numbers slips and poolmaking sheets pursuant to the police caretaking function was not unconstitutional. See Annotation, 48 A.L.R.3d 537, 550-57; South Dakota v. Opperman, 428 ...


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