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April 19, 1984


The opinion of the court was delivered by: SIMMONS

 In the present criminal action this Court reviews the legality of a warrantless search of a parked automobile by local law enforcement officers.

 On August 29, 1983, at approximately 11:00 P.M., two plainclothes police officers, Richard Martine and Robert Harbough, were stopped in an unmarked police car at a red light. In the lane to their immediate left sat an automobile operated by Charles J. Abbott, the defendant. A female passenger, Kimberly Karpiak, was in the automobile with Abbott. In the lane to Abbott's immediate left was a taxi cab. While the vehicles sat at the intersection, Abbott raced the engine of his automobile, squealed the tires and shouted to the taxi driver, "Let's drag!" Officer Martine displayed his badge and told Abbott to keep quiet. Abbott shouted an obscenity in response and sped through the red light. The officers gave chase.

 Officer Martine radioed ahead for assistance. During the ensuing chase, the police officers fell several blocks behind Abbott and eventually lost sight of his vehicle. Several minutes later, Martine spotted Abbott's car parked in a narrow alley off 32nd Street. The vehicle was partially protruding into the road, but was not obstructing traffic. No one was in the vehicle. The vehicle's windows were down, the doors closed, the engine off and the keys gone.

 While sitting in his cruiser next to Abbott's vehicle, Officer Martine was informed over the police radio that a man and a woman were walking in the vicinity of 32nd Street. Martine left his partner in the alley and proceeded to 32nd Street where Abbott and Karpiak were observed. There he positively identified Abbott and Karpiak as the occupants of the pursued vehicle. Both were placed under arrest. At the arrest scene, $11,000.00 was recovered from Karpiak's purse. Karpiak informed Officer Martine that the money belonged to Abbott.

 Officer Martine returned to the automobile in the alley where his partner was waiting. There he decided to impound Abbott's vehicle. Prior to towing, the officers conducted a search of the automobile. They discovered a briefcase in the interior which was immediately opened. Inside the briefcase they found cash and narcotics. The search was abandoned and the officers proceeded to the police station with the briefcase and its contents.

 Abbott was charged with several state motor vehicle offenses and with possession and intent to distribute a controlled substance.

 Also seized from Abbott's briefcase were certain documents alleged to be evidence of bookmaking. Abbott was charged in state court with violation of the Commonwealth's bookmaking laws. A suppression hearing was held on these charges in the Allegheny Court of Common Pleas. On the same facts before this Court, the Court of Common Pleas ruled that the search of Abbott's automobile was unconstitutional and suppressed the seized evidence. The Commonwealth has since nol-prossed the bookmaking charges against Abbott.

 Abbott was later indicted by a federal grand jury upon the evidence seized from his vehicle and charged with possession and intent to distribute a controlled substance in violation of federal law. Abbott filed a suppression motion contending that the warrantless search of his vehicle violated the Fourth Amendment's prohibition against unreasonable searches and seizures. A suppression hearing was held. Abbott's suppression motion is now before this Court for disposition.

 The government admits that the police had no search warrant or probable cause to search Abbott's vehicle. Nevertheless, the government advances two justifications for its warrantless search. The government's principal justification is that the search was a routine inventory search and therefore valid. The government's residual argument is that the automobile was abandoned and therefore Abbott had no reasonable expectation of privacy in its contents. Abbott, on the other hand, contends that the search was invalid because the vehicle was not in lawful police custody, the purpose was investigatory and the search was unreasonably broad. *fn1" Abbott also argues that the government cannot show that he intended to relinquish his rights to the automobile and its contents, therefore, the government's abandonment theory must fall.


 The Fourth Amendment to the United States Constitution provides that the people are to be secure against "unreasonable searches and seizures." U.S. Const. amend IV. The Fourth Amendment's core function is to safeguard the privacy and security of individuals from intrusive and arbitrary invasions by government officials. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967).

 The warrant requirement has traditionally represented an assurance that a search and an arrest not proceed without probable cause. It is generally believed that a finding of probable cause by a neutral and detached magistrate is the best means to secure Fourth Amendment values. For "it is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. '" Mincey v. Arizona, 437 U.S. 385, 390, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978), citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (footnote omitted).

 The Supreme Court has recognized a narrow exception to the warrant requirement for automobile searches. In its decisions on the automobile exception, the Supreme Court has advanced two rationales to justify the warrantless search of an automobile. The first justification is based on exigency due to the mobility of automobiles. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971); Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). In Carroll the Supreme Court, believing that the inherent mobility of a vehicle creates an unacceptably high risk of losing its contents, ruled that an immediate intrusion into the individual's zone of privacy was necessary if police officers are to secure illicit substances. In cases of this class, the Court has held that a warrantless search is reasonable. However, the automobile exception to the warrant requirement in Carroll applies only to searches of vehicles that are supported by probable cause. See United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982). Because the government admittedly lacked probable cause to search Abbott's vehicle, this Court need not concern itself with the mobility rationale.

 The second justification underlying the automobile exception is the "diminished expectation of privacy" theory. Because of their configuration and use, and because automobiles, unlike homes or offices, are continually subjected to pervasive governmental regulations, the Supreme Court has reasoned that the intrusion of a warrantless search of an automobile is constitutionally less significant than a warrantless search of more private areas. See Arkansas v. Sanders, 442 U.S. 753, 761, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979). It is in this light that the Supreme Court has approved, as permissible under the Fourth Amendment, the "community caretaking functions" and the "traffic-control activities" of the routine inventory search. See South Dakota v. Opperman, 428 U.S. 364, 368, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976).

 The Opperman case involved a routine inventory search of an automobile lawfully impounded by the police for municipal parking violations. In the course of an inventory search, police officers opened the glove compartment of Opperman's vehicle and discovered marijuana. Opperman was later convicted on drug related charges. On certiorari, the United States Supreme Court held that the Fourth Amendment permitted limited governmental intrusion into automobiles impounded or otherwise in lawful police custody where the intrusion is aimed at securing or protecting the car and its contents. Opperman, 428 U.S. at 373.

 Yet, the Supreme Court acknowledges that the search of an automobile is a substantial intrusion upon the owner's rights to privacy in his effects. "The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). In this regard, the Opperman Court believed that the nature and substantiality of interest to justify an inventory search of an automobile must be something more than a desire to discover evidence of crime. To this end, the Supreme Court identified three distinct interests which it believed justified an inventory search: "(i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner's property while it remains in police custody." Opperman, 428 U.S. at 378 (Powell, J., concurring).

 Weighing these varying societal and governmental interests advanced to justify such an intrusion against the constitutionally protected interest of the individual citizen in the privacy of his effects, the Opperman Court reasoned that, on balance, the Constitution permits routine inventory searches.

 Pivotal to the Court's analysis in Opperman was the "benign purpose" of a routine inventory search. Inventory searches are not conducted to discover evidence of crime, so in the Supreme Court's view, there is no significant danger of compromising the individual's legitimate expectation of privacy. This is especially true when a protective inventory search is carried out in accordance with standard procedures in the local police departments, a factor which tends "to ensure that the intrusion [will] be limited in scope to the extent necessary to carry out the caretaking function." Opperman, 428 U.S. at 374-75.

 Investigatory searches, on the other hand, are clearly distinguishable. In the criminal investigatory context, a warrant may issue only upon probable cause. So it is the warrant requirement that protects the individual's legitimate expectation of privacy against the overzealous police officer. This is accomplished through an independent examination of the facts by "a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 68 S. Ct. 367 (1948) (footnote omitted). These concerns are not present in the inventory search, given its benign noncriminal context; hence, the warrant requirement is inapplicable. See Opperman, 428 U.S. at 370 n. 5.

 In this case, Abbott asserts that the police officers' search of his vehicle was motivated by a desire to discover evidence of crime. Abbott contends that the inventory search was a mere pretext concealing an investigatory police motive. In short, Abbott argues that to the extent the police officers' so-called inventory search was coupled with a desire to ferret out crime, the "diminished expectation of privacy" justification for a warrantless search is lost. This is because the desire to discover evidence must be based on probable cause; an investigatory search ...

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