Michael Kershaw, Assistant District Attorney, for the Commonwealth
Vincent Ziccardi, Esquire, for the Defendant
During a suppression hearing held on May 24, 1988 in the above-captioned matter, this Court entertained a defense motion which sought to suppress physical evidence obtained by police during an alleged illegal search.
The Commonwealth, in opposition to this motion, presented the following evidence:
Philadelphia Police Officer Joseph Waring, the only Commonwealth witness, testified on direct examination that on Sunday, November 22, 1987, at approximately 1:05 a.m., he was on patrol, traveling eastbound in the vicinity of the 1800 block of Wallace
Street, Philadelphia, when he observed the defendant "duck down" in the front seat of a parked vehicle (N.T. 5/24/88, pp. 4-5). After this observation, Officer Waring testified that he then drove around the block, exited his vehicle and approached the automobile occupied by the defendant (N.T. 5/24/88, p. 5). As the Officer approached the vehicle in question, he ascertained that the motor was not running and he noted that there were no keys in the ignition (N.T. 5/24/88, p. 5). The Officer indicated that he subsequently requested that the defendant step out of the automobile in question (N.T. 5/24/88, p. 5). According to Waring, when he then asked the defendant for identification and for the vehicle's registration, he failed to produce either (N.T. 5/24/88, p. 5). In light of the Officer's observations, Officer Waring asserted that it was his belief at that time that the defendant was possibly attempting to steal the vehicle (N.T. 5/24/88, p. 5).
As a result of this conclusion, Officer Waring testified that the defendant was subsequently transported by police van to the local district police station for the purpose of determining ownership of the automobile in question as well as for determining the status of the defendant in relation thereto (N.T. 5/24/88, p. 6).
Upon arriving at the station house, a custodial search was performed on the defendant in the cell block in order to determine whether or not be possessed any weapons (N.T. 5/24/88, pp. 6-7). According to Officer Waring's testimony, during the course of the custodial search, the defendant removed a black vial with a gray lid from his right sock (N.T. 5/24/88, p. 6). The vial in question was in fact a 35 millimeter film case (N.T. 5/24/88, p. 6). When the lid to the vial was removed, twelve clear plastic packages containing an unknown white powder were discovered (N.T. 5/24/88, p. 6). Believing that the twelve packages contained cocaine, Officer Waring confiscated the
alleged narcotics, along with $128.00, from the defendant (N.T. 5/24/88, p. 6). The confiscated items were then placed on property receipts (N.T. 5/24/88, p. 6).
During cross-examination, the Officer indicated that at no time prior to the discovery of the twelve clear plastic packages was the defendant under arrest (N.T. 5/24/88, p. 7). However, according to Waring, although the defendant was not "under arrest", the defendant had no choice but to go with him to the police station (N.T. 5/24/88, p. 7).
Also, during cross-examination, it was established through testimony that the defendant had stated to Officer Waring that the vehicle in question was owned by his brother (N.T. 5/24/88, p. 8).
Finally, the Officer testified that no other searches were performed on the defendant prior to the custodial search in question (N.T. 5/24/88).
Following the conclusion of the cross-examination of Officer Waring, the Commonwealth rested. Defense counsel did not present any evidence on the motion. Thereafter, the Court entertained oral argument from both parties on the motion.
In essence, defense counsel argued that since the defendant was not free to go, in reality he was under arrest (N.T. 5/24/88, pp. 9-10). According to defense counsel, Officer Waring lacked sufficient probable cause to, in effect, "arrest" the defendant simply for the purpose of the investigation in question; mere suspicion was not enough (N.T. 5/24/88, pp. 9-10). Defense counsel further contended that given the fact that the defendant was unlawfully placed into custody, the subsequent search similarly was unlawful (N.T. 5/24/88, pp. 9-10). It was noted by defense counsel that a search for weapons at the scene may have been justified; however, waiting until the defendant was present at the police station to search the defendant was "an altogether different situation." (N.T. 5/24/88,
p. 9) Based on the foregoing, defense counsel asserted that all physical evidence obtained during the custodial search in ...