NO. 1350 PHILADELPHIA 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County on May 4, 1983 and from the Order denying post-verdict motions entered on March 16, 1983. Criminal Division No. 150, 1981
Philip T. Medico, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Cirillo, Del Sole and Popovich, JJ.
[ 333 Pa. Super. Page 386]
This appeal was taken from the Judgment of Sentence from a burglary conviction. The issue raised is whether physical evidence found from the search of Appellant's vehicle was properly admitted into trial.
The crucial facts are that on January 2, 1981, the Stella residence in Plains Township was burglarized and several pieces of jewelry were taken. Two weeks later on January 16, 1981, Dominick Augustine, a neighbor of the Stella's, accompanied police to Wilkes-Barre where he identified Appellant's automobile as being the same as the one he had seen near the Stella home on the night of the burglary. The original description he gave police was that the car was a blue Dodge, Pennsylvania license No. DDU 660, 760 or 670, and the car identified was a blue Dodge No. BBU-670. Appellant's car, which was parked at the curb adjacent to his property, was impounded. The car was reported by Whitney Klein, a neighbor and friend of Landamus', to have not been driven for two weeks (which would have been the night of the robbery). It is not clear from the record whether Appellant was arrested and charged with the burglary and theft prior to the impoundment of his vehicle. Both events, however, occurred within a short time of each other on January 16, 1981. Appellant was arrested in his home. Prior to applying to a magistrate on January 19 for
[ 333 Pa. Super. Page 387]
a warrant to search the car, police made an inventory search. A diamond pin, a pair of earrings initialed with an "A" and an aqua-colored earring were found on and under the seats. Mrs. Stella identified them as her missing jewelry. The warrant was granted on the 19th, and a second search produced no new items.
The search warrant used to inventory the car was found to be invalidity executed by the Common Pleas Court under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. U.S., 393 U.S. 410, 80 S.Ct. 584, 21 L.Ed.2d 637 (1969).
We must decide whether the impounding and inventorying of Appellant's vehicle without a warrant was lawful.
The Commonwealth claims that the items were properly discovered and admitted into trial based on a lawful, though warrantless, inventory search. There is no assertion that the items discovered were in "plain view" or that the seizure of the car was incident to a lawful arrest.
The Fourth Amendment, which was made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), mandates that ...