submitted: March 23, 1979.
COMMONWEALTH OF PENNSYLVANIA
MARILYN SUSAN STAGLIANO, APPELLANT
No. 1241 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 789-77
Nino V. Tinari, Philadelphia, for appellant.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 273 Pa. Super. Page 239]
This case presents the issue whether the purse of a female passenger in an automobile may be seized and searched, consistently with the Fourth Amendment,*fn1 as incident to the lawful arrest of the operator of the vehicle, when the operator is outside the vehicle, under arrest and within the control of the arresting officer, and the passenger is neither involved in the criminal activity which led to the operator's arrest nor an apparent confederate of the operator. The court below held that the passenger's purse could be seized and searched, and the fruits of this search admitted into evidence against appellant, the passenger.*fn2 We, however, conclude that such a seizure cannot be sanctioned as incident to arrest, and accordingly, vacate judgment of sentence and remand for proceedings not inconsistent with this opinion.*fn3
On February 10, 1977, Trooper Walter Weniger, Jr., observed a white Corvette traveling on Route 73, in Skippack Township, Montgomery County, Pennsylvania. The car, being driven in excess of 50 miles an hour in a 35 mile an hour zone, was pursued and stopped without incident by Trooper Weniger solely for the indicated Motor Vehicle Code violation.
[ 273 Pa. Super. Page 240]
Trooper Weniger approached the vehicle from the operator's side and, when standing next to the operator's door, requested that the driver produce his license and registration cards. The operator responded that he did not have them. Consequently, Weniger asked the operator to exit the vehicle. When the operator complied, Weniger observed a clear plastic bag, containing a greenish brown substance, protruding from the glove compartment of the vehicle. Believing this substance to be marijuana, the trooper immediately placed the operator, who at this juncture remained in Weniger's grasp at the door, under arrest.
During this same period, Trooper Weniger, who was restraining the operator only by holding him by the belt outside of the car, patted the operator down for weapons.*fn4 This initial search of the person of the operator disclosed no weapons or other instrumentalities of crime; nevertheless, the trooper, in what he later testified as being a search solely for "weapons," began to search the compact interior of the Corvette. Initially, while holding the operator by the belt with one hand, Weniger thoroughly searched the operator's side of the vehicle. This search revealed neither weapons nor further evidence of any crime. Weniger then, without ordering the passenger out of the automobile, reached underneath the passenger's legs and seized a purse. Upon opening the purse, the trooper discovered a "straight razor" measuring four inches in length and immediately informed the passenger-appellant, Ms. Stagliano, that she was under arrest. A subsequent search of appellant's pocketbook also revealed a controlled substance, methamphetamine.
On May 27, 1977, appellant, having been formally charged with various criminal offenses, filed a pre-trial motion to suppress the evidence discovered in her purse. At the
[ 273 Pa. Super. Page 241]
suppression hearing, the Commonwealth sought to justify the seizure and search of appellant's purse as a search incident to the operator's arrest under Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The suppression court agreed with the Commonwealth's analysis and upheld the search, as the purse was "within easy reach of the [operator]." Notes of Testimony at 28. Ultimately, Ms. Stagliano in a non-jury trial was convicted of the statutory crimes of possession of a controlled substance,*fn5 (the methamphetamine only and not the marijuana found in the glove box) and possession of a prohibited offensive weapon.*fn6 Motions for a new trial and in arrest of judgment having been timely filed and denied, this appeal from appellant's subsequent sentencing ensued.
Instantly, appellant urges the seizure and subsequent search of her purse cannot stand, as the area under her knees, was not one "within which [the operator] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 725, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 367, 382 A.2d 1212, 1214 (1978); Commonwealth v. Lowry, 260 Pa. Super. 454, 463-64, 394 A.2d 1019-20 (1978); Commonwealth v. Ceravolo, 224 Pa. Super. 464, 465, 307 A.2d 288, 289 (1973).*fn7 This argument is predicated upon the arresting officer's admission that prior to seizing Ms. Stagliano's purse, he did not harbor any belief that she was involved in any criminal
[ 273 Pa. Super. Page 242]
activity or was an apparently armed and potentially dangerous confederate of the arrested operator.*fn8 The Commonwealth responds to this contention by arguing that the operator was under "limited control," and that the inherent dangers which surround an "automobile" arrest fully justify the seizure of appellant's purse as incident to the lawful arrest of the operator.*fn9
[ 273 Pa. Super. Page 243]
In evaluating the arguments advanced by counsel, we are initially guided by certain well-settled and elementary principles of Fourth Amendment jurisprudence. In various contexts we have repeatedly acknowledged:
[In ascertaining] "whether a particular search will withstand constitutional scrutiny it must be realized that '[t]he ultimate standard set forth in the Fourth Amendment is reasonableness.' Cady v. Dombroski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). It is also true and fundamental that 'searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).
Commonwealth v. Timko, 251 Pa. Super. 442, 445-46, 380 A.2d 861, 863 (1977). More directly, we have also reasoned that to validate the warrantless search of an automobile,
[the] officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants. . . .
Commonwealth v. Long, 262 Pa. Super. 20, 24, 396 A.2d 463, 465 (1978) (per curiam). E. g., Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). As the Commonwealth does not rely upon any of the above rules to justify the instant seizure,*fn10 our inquiry focuses upon whether the seizing officer had a reasonable basis for believing that Ms. Stagliano's purse was within the arrested operator's grasp.
While, of course, the question whether a particular search is incident to arrest fundamentally bottoms upon the facts
[ 273 Pa. Super. Page 244]
of each particular case, appellant vigorously maintains that the rule of Commonwealth v. Burgos, 223 Pa. Super. 325, 299 A.2d 34 (1972) governs our judgment in this controversy. In Burgos, the police observed the accused commit a summary traffic violation. The accused, at the direction of the officers, pulled his vehicle off the highway. After exiting his automobile, which contained no other passengers, the accused was informed he was under arrest for violating the Motor Vehicle Code. At the time of arrest, the accused was standing between his car and the patrol car. Up to that point, the accused neither offered resistance to the officers' demands, nor engaged in any disruptive or suspicious behavior. During this same time frame, one of the officers went to the passenger side of the seized auto and attempted to open the door. Since the door was locked, the officer asked the accused to open it, which request was complied with. A shaving kit fell to the ground as the door was opened, which prompted the officer to inquire as to its contents. The accused responded by unzipping the bag, thereby exposing to the officer's view a vial of marijuana. On these facts, we held that the search of the bag could not be sustained as being incident to arrest as appellant, prior to the search, " was standing between his car " and the police cruiser, and in " close company " of one of the officers. Id., 223 Pa. Super. at 329; 299 A.2d at 37 (emphasis supplied).
Framing the issue in this light, we must ascertain whether the search of Ms. Stagliano's purse falls outside the scope of a search incident to arrest, as did the search in Burgos. In evaluating the instant facts, a distinguished commentator on the Fourth Amendment, Professor Wayne LaFave,*fn11 has suggested that our analysis should take into account the following factors: (1) the nature and extent of restraint on the arrestee's person; (2) the location of the arrestee and the officers in relation to the area searched; (3) the obstacles, if any, which the arrestee must overcome in order to reach the container which was searched, and; (4) the number
[ 273 Pa. Super. Page 245]
of police on the scene and their physical and spatial relation to the number of arrestees or other persons present.
Employing these as benchmarks only, we initially observe that the uncuffed operator was standing outside the door but in the grasp of the arresting officer. The uncuffed operator, therefore, was certainly in the " close company " of the arresting officer and under a degree of control within the meaning of Burgos, supra. Compare United States v. Neumann, 585 F.2d 355 (8th Cir. 1978) (both passenger and operator handcuffed and removed from car; search of small box on driver's side; held: not incident to arrest). With regard to the second factor, the operator was not as far removed from the auto as the arrestee in Burgos, supra. Although, as a general proposition, the search of the interior of an auto may be more reasonable where the arrestee is standing by the doors, this alone cannot mean that the passenger or the searched container is inevitably within the reach of the arrestee. Cf. Burgos, 223 Pa. Super. at 327-28, 299 A.2d 34; see Howell v. State, 271 Md. 378, 382, 318 A.2d 189, 191 (1974) (it is not enough that the arrestee is located in or near the lawfully stopped automobile). Nor as to the third factor is it sufficient in and of itself that the operator's door of the auto is open. While in the abstract this fact might indicate that the operator could gain access to the car it is not determinative of his possible access to the container which was seized. Here, prior to the seizure, the operator was within the grasp of the arresting officer who stood between the operator and the Corvette. In order for the seized purse to be within the operator's reach, he would have had to physically remove the officer from his position, reach across the interior to the floor below the passenger, open the closed purse, and finally withdraw whatever weapon might be located therein.*fn12 Turning to the fourth factor, at the
[ 273 Pa. Super. Page 246]
moment of seizure the arresting officer knew little more than the fact that the unarmed arrested operator had a passenger in the car. The mere fact that two persons instead of one are present, does not mean in every case, that the danger incident to arrest is increased, or for that matter that the party under arrest is any less under the control of the officer. The present case is also obviously distinguishable from cases in which the police had prior reason to believe that the arrested operator would be armed,*fn13 or that the passenger might be armed or likely to conceal a weapon to aid any escape attempt by the arrested operator.*fn14 The
[ 273 Pa. Super. Page 247]
seizure at issue here, therefore, was not "specifically aimed at an object the police had reason to believe was in a particular place within appellant's grasp," nor can it be likened to that where a weapon is under a mattress and the accused makes a "furtive gesture" toward it. Commonwealth v. Bess, 476 Pa. 367, 368, 382 A.2d 1212, 1214 (1978).
In sum, whereas in this case, the police have the operator of a lawfully stopped vehicle outside the vehicle under arrest, in "close company," and under a degree of control which is sufficient to prevent endangering themselves or destruction of evidence -- the police may not justify a seizure of a closed container located on the passenger's side of the vehicle solely as incident to the arrest of the operator, when the police have no reason to believe that the passenger is either involved in any criminal activity or an apparent confederate of the operator. Thus, in as far as the Commonwealth advances no other exception to the Fourth Amendment warrant requirement to justify this seizure, we are constrained to hold, on these narrow facts, that the search of appellant's purse was not constitutionally sanctioned.
In so holding, our Court is not unmindful of the Commonwealth's grave concern for the safety of its law enforcement officers.*fn15 In this regard, however, whatever dangers an
[ 273 Pa. Super. Page 248]
officer reasonably infers he confronts from the presence of a passenger in a lawfully stopped auto are amply provided for by the "flexible responses" afforded him by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop and frisk), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (forcible stop for interrogation) and most recently Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1978) (driver of auto lawfully stopped may be ordered from vehicle to facilitate safety of officer). See generally Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1, (1979) (fundamental Fourth Amendment prohibition against unreasonable seizures and searches cannot be dispensed with merely because of "generalized urgency of law enforcement").
Judgment of sentence is vacated, and case is remanded for a new trial.