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October 6, 1997


Appeal from the Order of the Court of Common Pleas of Blair County, Criminal Division at No. 1419 of 1995.

Before: Popovich, Saylor and Olszewski, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich


FILED October 6, 1997

This is an appeal by the Commonwealth from the suppression court's order dated December 27, 1996, granting appellee's motion to suppress illegal narcotics (cocaine) seized by police. We affirm. *fn1

Initially, we note that in reviewing a suppression order:

Our scope of review is limited primarily to questions of law. We are bound by the suppression court's findings of fact, if those findings are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellee and so much of the evidence of the Commonwealth which, as a whole, remains uncontradicted. It is for the suppression court as trier of fact to determine credibility. We are not bound by findings wholly lacking in evidence. Nor are we bound by the suppression court's Conclusion of law.

Commonwealth v. Rodriquez, 385 Pa. Super. 1, 559 A.2d 947, 948 (1989) (citations omitted).

The following facts are undisputed: Officers of the Blair County Task Force received a tip that William Lutz would be travelling from New York to Blair County on August 26, 1994, with a large quantity of cocaine which he had purchased for appellee. On that date, Agent Randy Feathers and Detective Norman Young established a surveillance post near Bald Eagle, Pennsylvania. At some point during the day, the two officers spotted Lutz's vehicle. One of the officers then radioed Officer John McTigue who was in uniform and on patrol for the Altoona Police Department. Officer McTigue was informed that Lutz's vehicle was travelling in his direction. Knowing that there was an outstanding bench warrant for Lutz's arrest and that his vehicle was under surveillance, Officer McTigue effectuated a traffic stop. After stopping the vehicle, the officer approached Lutz, requested his identification, ordered him out of the vehicle and instructed him to stand near the rear of the vehicle. Agent Feathers, Detective Young and Agent James Walstrom arrived on the scene shortly after Lutz exited his vehicle.

What occurred after the agents and the detective arrived on the scene is in dispute. As the suppression court noted in its opinion, the Commonwealth's witnesses (Lutz, Agent Feathers, Detective Young and Agent Walstrom) each gave a different version as to what occurred after the task force officers arrived on the scene. Lutz testified that, while he was standing next to his vehicle and while he was sitting in the back of a police cruiser, he was questioned by Agent Feathers and Detective Young as to whether there were illegal narcotics in his vehicle. He also testified that, after being questioned, he told the officers that they could search the vehicle. He was unable to remember whether the vehicle was searched immediately or whether he was given Miranda *fn2 warnings prior to giving his consent to search. Agent Feathers testified that he gave Miranda warnings to Lutz prior to questioning him, that Lutz gave oral and written consent to search the vehicle and that the vehicle was searched after it was driven to the police barracks. Detective Young testified that Lutz was questioned and his vehicle was searched before he arrived on the scene. Accordingly, he was unaware of the circumstances surrounding Lutz's consent or the search of the vehicle. Agent Walstrom testified that he questioned Lutz while Lutz was standing next to his vehicle. He indicated that he informed Lutz that he wanted to search the vehicle and that Lutz was not required to give his consent to search. He then testified that Lutz gave his consent. He and Agent Feathers searched the vehicle immediately, and the cocaine was seized. Agent Walstrom was unable to recall whether Miranda warnings were given to Lutz prior to questioning.

It is undisputed that after the agents seized the cocaine, Lutz indicated that he was willing to cooperate with the police. He then informed the agents that he purchased the cocaine with money supplied by appellee. Several agents accompanied Lutz to his apartment and instructed him to contact appellee. Lutz telephoned appellee and indicated that he had the cocaine at his apartment. Approximately twenty minutes later, appellee arrived at the apartment, received his share of the cocaine and then left the apartment. Appellee was immediately arrested by the police, and the cocaine was seized.

Appellee was charged with possession of a controlled substance and intent to deliver a controlled substance. He filed a motion to suppress the cocaine on the basis that it was seized from Lutz's car illegally. Following evidentiary hearings held on March 26, 1996, and October 18, 1996, the suppression court granted appellee's motion to suppress the cocaine. This timely appeal followed.

The first issue which we must address is whether appellee has standing to challenge the search of Lutz's vehicle and the seizure of the cocaine therefrom. "In Pennsylvania, any defendant charged with a possessory crime. . .has automatic standing to challenge a search and seizure under Article I, Section 8." Commonwealth v. Gordon, 546 Pa. 65, 683 A.2d 253, 256 (1996) (citing Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983)). See Commonwealth v. Carlton, 1997 Pa. LEXIS 1714 (1997); Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993). Here, one of the crimes with which appellee was charged was possession of a controlled substance. Clearly, possession is an essential element of the crime. Accordingly, appellee is entitled to "automatic standing" to litigate a motion to suppress. Sell, (supra) . *fn3

Having determined that appellee has standing, we must next determine whether the search of Lutz's car and the seizure of the cocaine therefrom was proper. Specifically, we must decide whether Lutz's consent to ...

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