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 ...