No. 319 January Term 1978, Appeal from the Order of the Superior Court at No. 807 October Term 1976, affirming the Order of the Court of Common Pleas of Lycoming County, Criminal Division, at 74-11,026.
Alan Ellis, Robert C. Fogelnest, Philadelphia, for appellant.
Robert F. Banks, First Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion in which Kauffman, J., joins.
In March 1975, appellant, Robert Timko, was tried by the Court of Common Pleas sitting without a jury in Lycoming County on charges of possession of marijuana with intent to deliver, possession of marijuana, possession of an unlicensed firearm, and disorderly conduct. Timko was found guilty of possession of marijuana and possession of an unlicensed firearm. After post-verdict motions were filed, judgment was arrested on the weapon charge, and a sentence of one year's probation was imposed on the possession conviction. The Superior Court affirmed the order,*fn1 and we granted Timko's petition for allowance of appeal.
The sole issue presented is the propriety of a search by police of the contents of a zippered valise seized from Timko's automobile*fn2 during the following sequence of events:
While driving a police vehicle during the early evening on September 16, 1974, Officer Williams of the Williamsport Police Department observed Timko operating a Volkswagen van in an erratic manner. While making a turn, Timko's van almost struck one vehicle, then drifted across the center line nearly striking Officer Williams' vehicle. As he passed Officer Williams' car, Timko looked out of an open window in his vehicle and directed an obscene gesture at him. The policeman turned and pursued Timko intending to arrest
him for reckless driving. Moments later, Timko parked his van but struck vehicles to the front and rear of his own in the process. When Officer Williams approached Timko on foot, Timko rolled up his window and locked himself inside the van. When requested to show his license and registration, he responded with an obscene refusal. Officer Williams observed several boxes marked "shotgun shells" in the van and returned to his police vehicle to call for assistance.
Soon, other police officers arrived at the scene. Timko continued his refusal to tender identification except for momentarily flashing a card in the window in such a manner that the officers were unable to read it. After addressing further obscenity to the policemen, Timko started the motor of his van. While he was attempting to pull out of the parking space, police officer Jett was trying to pry open the van door using a tire iron. As Officer Jett pried, Timko looked at him and then reached for a zippered brown valise sitting atop another article in the back seat of the van. Having seen boxes marked "shotgun shells" in the vehicle and suspecting Timko was reaching for a weapon in the valise, Officer Jett smashed the van window open with the tire iron. Within a short period of time, he unlocked the door, helped pull Timko from the van, and retrieved the brown bag. Before being led away to the police car, Timko was frisked and handcuffed while standing next to the driver's seat door of the van. While this was happening, the police opened and searched the seized brown valise. It contained two packages of marijuana with a total weight of five hundred and forty-five (545) grams and a loaded revolver.
Timko maintains the fruits of the warrantless search of his zippered valise should have been suppressed. We agree.
"In the ordinary case, . . . a search of private property must be both reasonable and performed pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a ...