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Commonwealth v. Bailey

December 1, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RODERICK FRANCIS BAILEY, APPELLANT



Appeal from the Judgment of Sentence of September 18, 2007 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0002377-2006.

The opinion of the court was delivered by: Klein, J.

BEFORE: KLEIN, J., McEWEN, P.J.E., and HUDOCK, J.*fn1

OPINION

¶ 1 Roderick Francis Bailey appeals from the judgment of sentence imposed on his convictions of various weapons charges. The trial judge, the Honorable Anthony M. Mariani, found that the consent to search was not voluntary. However, he further found that the car would have been towed and an inventory search conducted and therefore discovery of the gun in the car was inevitable. We agree and affirm. It is true that the car was not in a spot causing a hazard or blocking traffic and it was not proper to tow and inventory the car under traditional common law principles. However, the statute has a separate section allowing towing and inventory when a person is arrested and is being taken to an "issuing authority."*fn2 Since there is another section dealing with towing when the vehicle is creating a hazard, the legislative intent should be interpreted to allowing towing after an arrest even if there is no hazard.

¶ 2 A full discussion follows.

Facts and Procedure

¶ 3 Bailey claims the suppression court erred in failing to suppress the physical evidence, a 9 mm semi-automatic handgun, found in the center console of his car. Bailey had been legally stopped by the police who were seeking to enforce an outstanding arrest warrant against him for simple assault. The suppression court ruled that Bailey did not voluntarily consent to the search of his car. However, the court ruled that because the car would have been towed pursuant to Bailey's arrest, and therefore subject to an inventory search, the inevitable discovery of the gun did not require suppression. After careful review,*fn3 we affirm.

¶ 4 On December 26, 2005, acting on a tip, the police went looking for Bailey, who was wanted on an arrest warrant for simple assault. As they were driving to the address provided by the anonymous tipster, the police officer recognized Bailey driving toward him on Friendship Avenue in McKees Rocks. The officer signaled Bailey to pull over and he did. Bailey was informed he was being arrested pursuant to a warrant for simple assault and Bailey was handcuffed. Bailey's passenger was asked to exit the car and told to stand at the rear, passenger side of the car. After being handcuffed, one of the backup officers claimed an informant told him that Bailey was known to carry a gun. The arresting officer asked Bailey if they could search his car*fn4 and Bailey agreed. Bailey was not read his Miranda*fn5 rights until he was taken to the police station. The 9 mm handgun in question was found in the center console. Neither Bailey nor his passenger claimed to have any knowledge of the gun.

¶ 5 Prior to trial, Bailey filed a motion to suppress evidence claiming his permission to search the car was not given freely and that there were no other reasons to allow the search. The Commonwealth argued that the permission to search was proper but in any event, the gun would have been inevitably discovered because the car was subject to be towed and when a car is towed it is the policy of the police department to conduct an inventory search. In response, Bailey argued that the Commonwealth had not shown that it had a policy in place regarding towing and that the search was clearly not an inventory search.

¶ 6 Judge Mariani as suppression judge agreed with Bailey that the permission to search the car was coerced and was therefore invalid. The suppression court also agreed that the search itself was not an inventory search. However, given that the police were operating, at that time, under the belief they had permission to search, there was no reason for the search to be an inventory search. However, the suppression court also ruled that the Commonwealth had demonstrated that even absent the "permissive search," the car was properly subject to be impounded and towed and that it was the custom of the police to perform a routine inventory search which would have inevitably led to the discovery of the gun in the center console.

¶ 7 We agree with Judge Mariani in all regards. Discussion

¶ 8 Although the issues of consent and the nature of the search were raised by Bailey, the issues are not really before us as the Commonwealth does not challenge the suppression court's determination that the search was not the result of proper consent and that the search was conducted with the idea of looking for evidence, not inventorying the contents of the car. Therefore, the only issue before us is whether the gun would have been discovered absent the invalid search.

¶ 9 The inevitable discovery doctrine provides:

[E]vidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. .[I]mplicit in this doctrine is the fact that the evidence would ...


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