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COMMONWEALTH PENNSYLVANIA v. MICHAEL WILLIAM HENRY (11/03/86)

filed: November 3, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL WILLIAM HENRY, APPELLEE



Appeal from Order of the Court of Common Pleas, Criminal Division, of Fulton County, No. 52 of 1985.

COUNSEL

James M. Schall, Assistant District Attorney, McConnellsburg, for Com., appellant.

Jill A. McCracken, Chambersburg, for appellee.

Wieand, Beck and Watkins, JJ. Beck, J., files a concurring opinion.

Author: Wieand

[ 358 Pa. Super. Page 308]

Where a police officer has stopped a vehicle for speeding and has observed marijuana in a box which he has seized and opened upon suspicion that the motorist was attempting to remove a gun, does the right to examine the contents of the box continue after the police officer has arrested the motorist and placed him securely in the police vehicle? The trial court held that the right to conduct a warrantless examination of the contents of the box terminated with the motorist's arrest and, therefore, suppressed additional contraband discovered during a warrantless examination of the contents conducted by the arresting officer immediately after the arrestee had been secured. The Commonwealth appealed. We reverse.

On June 25, 1985, Trooper Daryl Heckman stopped a vehicle being driven by Michael William Henry, a California resident, at an excessive speed on Interstate Route 70 in Fulton County. After a citation had been issued, Henry offered to pay the fine in the manner permitted by 75 Pa.C.S. § 6305. Henry exited his vehicle, walked around to the right rear door and retrieved a metal box from the rear floor of the car. Heckman initially assumed that Henry intended to open the box for the purpose of obtaining money with which to pay the fine. Henry placed the box on the rear seat of the car, where he opened it while using his body to shield it from Heckman's view. Heckman moved several times in order to obtain a view of Henry's hands and the box, but Henry continuously moved to place his body between Heckman and the box. Heckman became suspicious. He could see neither Henry's hands nor the box when he heard a metallic sound. Fearing that Henry might have a gun, Heckman grabbed Henry, pulled him from the car and pushed him against the open door of the car. At this point, while Heckman was still within arm's reach of the box, he asked Henry if he had a gun. When Henry gave a negative response, Heckman flipped open the lid of the box. There he observed a baggie containing what

[ 358 Pa. Super. Page 309]

    appeared to be marijuana, a plastic bottle containing capsules, and money. Heckman thereupon handcuffed Henry and took him to the police vehicle. He then returned to Henry's vehicle, retrieved the metal box, returned to the police vehicle, and there examined the contents of the box. He found numerous controlled substances and various drug paraphernalia. The money in the box was in excess of Five Thousand ($5,000.00) Dollars. A search warrant was obtained, and a search was made of the vehicle. The search of the vehicle disclosed a marijuana cigarette and additional drug paraphernalia.

Henry was charged with various drug offenses. He filed an omnibus pre-trial motion to suppress evidence, contending that Heckman's opening of the box and the subsequent search of his vehicle had been in violation of the Fourth Amendment of the Constitution of the United States and Article I, Section 8 of the Pennsylvania Constitution. Following an evidentiary hearing, the court entered an order which suppressed all evidence seized by Trooper Heckman except the marijuana, capsules and money observed by Heckman when he initially flipped open the lid of the metal box in order to protect himself lest a gun be concealed therein. Heckman's later examination of the box, the court held, was illegal because a warrant should have been obtained before further examination took place.

Appellee appears to concede that the initial opening of the box by Trooper Heckman was authorized as a self-protective frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: Commonwealth v. Carter, 334 Pa. Super. 369, 483 A.2d 495 (1984). At that time, Heckman had reason to believe that a gun might be concealed in the box, the box was within Henry's reach, and the search was limited to the extent necessary to discover dangerous weapons which constituted a potential threat to the trooper's safety. As such, we have no reason to question the suppression court's conclusion that Trooper Heckman's initial observation of contraband did not violate any constitutionally protected right of privacy. Because the

[ 358 Pa. Super. Page 310]

    box had been lawfully opened and found to contain illegal drugs, appellee no longer had a protected privacy interest with respect to the contraband initially observed by the officer. Therefore, Trooper Heckman could lawfully seize the same after appellant had been restrained. "[O]nce a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy ...


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