No. 66 Eastern District Appeal Docket 1986, Appeal from the Order of the Superior Court Entered at No. 1980, Philadelphia, 1984, on July 5, 1985, Affirming the Order of the Court of Common Pleas of Delaware County, Entered at No. 1715 of 1984, on August 13, 1984. Pa. Superior Ct. , A.2d (1985)
John A. Reilly, Dist. Atty., Sandra L. Elias, Deputy Dist. Atty., for appellant.
Emilio DiMatteo, Jr., Chester, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty and McDermott, JJ., file concurring opinions. Nix, C.j., files a dissenting opinion, joined by Zappala, J. Hutchinson, J., files a dissenting opinion.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
This is an interlocutory appeal*fn1 by the Commonwealth of Pennsylvania (Appellant) challenging Superior Court's Order of July 5, 1985, affirming the pre-trial suppression order of the Court of Common Pleas of Delaware County which granted Appellee's motion to suppress his inculpatory statement on grounds the "six hour rule" enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977),*fn2 had been violated. The suppression court concluded that Appellee was under arrest at the time he "blurted out" the inculpatory statement relating to drugs found in his motel room: "All this stuff is mine, they know nothing about it." The court further concluded that since Appellee was arrested shortly after 3:00 a.m., and was not arraigned until approximately 11:00 a.m., more than six hours had elapsed; therefore, the Davenport rule was violated and Appellee's statement is not admissible at trial. We disagree for the reasons that follow.
On March 8, 1984, at approximately 3:00 a.m., a burglar alarm in a room at the Airway Motor Lodge, Tinicum Township, Delaware County, was activated. Officers Jack J. Parker and Walter G. Fife of the Tinicum Township Police Department arrived on the scene within minutes of the alarm. The motel clerk advised Officer Parker that the television alarm in Room 122 had sounded. An investigation revealed that the television in Room 122 was missing.
Officers Parker and Fife separated and began a search of the motel. Officer Parker observed two men peeking out of a glass doorway. Believing the men were acting in a suspicious manner, he radioed Officer Fife and described his observations. Officer Parker entered the building adjacent to where he had observed the two men and again saw the two individuals peek out of the glass doorway. As Officer Parker approached, the two men exited the building close to where Officer Fife was standing.
Officer Fife stopped the two men and requested some identification, which they provided. The officer then asked if they were guests at the motel. The co-defendant replied in the affirmative. The officer repeated the question to the defendant. Defendant replied that he was a guest in the motel and that they were in the same room. Officer Fife asked to see the room key to confirm their status as guests. The co-defendant stated that his wife was in the room and that she had the key.
The co-defendant went willingly to Room 258 with Officer Fife while Appellee waited with Officer Parker. In response to the co-defendant's knock on the door, his wife opened the curtains. At this time, Officer Fife observed through the window a large plastic bag atop a scale. The door was opened and the officer given permission to enter. Upon entering, the officer observed white powder in the plastic bag. Officer Fife called down to Officer Parker, "Jack, you'd better come up here." At that time, Officer Parker told Appellee to come with him to the motel room. Appellee entered the room in front of the officer and exclaimed, "All this stuff is mine, they know nothing about
it." Appellee and the co-defendants were then placed under arrest for suspected illegal drug activity. A search of the room revealed assorted drugs and drug paraphernalia.
At approximately 3:30 a.m., Investigator Robert Lythgoe arrived on the scene and seized the evidence. Appellee and his co-defendants were then transported to police headquarters and advised of their Miranda rights. Processing of the Appellee was completed at approximately 6:00 to 7:00 a.m. Appellee was preliminarily arraigned at 11:00 a.m., that same morning.
After a preliminary hearing on April 4, 1984, Appellee was held for court on the charges of possession, possession with intent to deliver controlled substances, and conspiracy.
On June 4, 1984, Appellee filed a Motion to Suppress the statement made to the police at the motel. After receiving testimony from Officers Parker and Fife and Investigator Lythgoe on June 11, 1984, the suppression court granted Appellee's motion on August 13, 1984. The Commonwealth appealed. Superior Court, in a two-to-one decision, agreed with the findings of the suppression court and affirmed the Order of Suppression on July 5, 1985, 348 Pa. Super. 630, 510 A.2d 290. Judge Wieand dissented on grounds that "there was no causal connection between the delayed preliminary arraignment and the voluntary and unsolicited admission of ownership made by Appellee when controlled substances were found in his room." The Commonwealth filed a petition for allowance of appeal which we granted on May 8, 1986, so that we might have the opportunity to review and reconsider the rule adopted in Commonwealth v. Davenport, supra.
In this appeal the Commonwealth raises the following questions for our review: 1) whether the suppression court erred in its conclusion of law that the Appellee was under arrest at the time of his freely volunteered admission; and 2) whether the suppression court improperly employed a per se rule of exclusion of evidence to a violation of the Davenport "six hour rule."
Appellant first contends that the finding that Appellee was under arrest at the time of his freely volunteered
statement is not supported by the record and that "at most" Appellee was detained for a brief investigatory stop. It is Appellant's position that at the moment the Appellee made his unsolicited confession he had not been taken into custody so as to effectuate an arrest. Appellant also correctly notes, that if the Appellee was not under arrest at the time of his statement, the rule of Davenport is not applicable to this case.
Appellee, on the other hand, contends that the police had exercised control over his freedom from the moment of the initial stop and that he was not free to go at any time. This Court has utilized the following test for determining whether an arrest has occurred:
We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and ...