No. 52 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, Lebanon County, No. 562, 1981.
William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
Bruce E. Cooper, Harrisburg, for appellee.
Wickersham, Beck and Montemuro, JJ. Beck, J., files dissenting opinion.
[ 324 Pa. Super. Page 412]
The Commonwealth appeals from an Order suppressing evidence*fn1 entered by the Honorable G. Thomas Gates, Court of Common Pleas, Lebanon County.
[ 324 Pa. Super. Page 413]
On October 23, 1981, at approximately 11:40 P.M., Patrolman Louis Laguna of the North Londonderry Township Police Department was on routine patrol. He was accompanied by Police Chief Eldon Beachley. As part of this routine patrol, Officer Laguna drove into the parking lot of the Palmyra Bowling Alley to make sure that there was no loitering in the lot.*fn2 At one end of the parking lot was parked a truck in which sat the appellant and another person. As Officer Laguna approached the truck he detected the odor of burning marijuana and, at the same time, observed the appellant bend over abruptly as if to stuff something underneath his seat. Upon Officer Laguna's request, the two men presented identification. At this point, Officer Laguna noticed that appellant's jacket, located on the floor of the truck, appeared to be concealing something. He asked the appellant to lift up the jacket. The appellant did this but quickly dropped it. Officer Laguna asked him again to lift the jacket and the appellant complied, this time exposing a plastic bag containing marijuana. Officer Laguna then read the appellant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and placed him under arrest. Upon arrival at the police station, the appellant's jacket was searched and in it were found six small plastic bags, a pipe and a scale. Appellant was charged with one count of possession of a controlled substance*fn3 and one count of possession of a controlled substance with intent to deliver.*fn4
[ 324 Pa. Super. Page 414]
The appellant filed a motion to suppress the marijuana and drug paraphernalia on the ground that such evidence was seized pursuant to an illegal search and arrest. Following a hearing conducted on December 29, 1981, appellant's motion was granted.
On appeal, the Commonwealth contends (1) under the circumstances of this case, Officer Laguna was justified in conducting a warrantless search of the appellant's automobile; (2) the appellant voluntarily consented to the search of his automobile; and (3) the search of the appellant's jacket was valid as incident to a lawful arrest.
The deciding factor in determining whether a warrantless search of a motor vehicle is constitutionally permissible is the existence of reasonable or probable cause. Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971); Commonwealth v. Dobkin, 223 Pa. Super. 432, 302 A.2d 457 (1973). Moreover, in considering the reasonableness of a given search or seizure of a vehicle, the need for a warrant is often excused by exigent circumstances. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Such a search is justified because (1) a vehicle is highly mobile and the likelihood is therefore great that it and its contents may never be found if police are prohibited from immobilizing it until a warrant is secured; and (2) one's expectation of privacy with respect to a motor vehicle is significantly less than that relating to one's home or office. Id. Furthermore, where an officer who has not intruded into a constitutionally protected area sees contraband in plain view, such evidence may be seized without a warrant. Commonwealth v. Pullano, 295 Pa. Super. 68, 440 A.2d 1226 (1982).
We agree with the Commonwealth that Officer Laguna was justified in conducting a search of the appellant's truck. In addition to observing the furtive behavior of the appellant who appeared to be stuffing something under his seat, Officer Laguna detected the order of burning marijuana. At the suppression hearing, ...