Commonwealth v. Ferraro

66 Pa. D. & C.2d 647, 1974 Pa. Dist. & Cnty. Dec. LEXIS 274
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedSeptember 12, 1974
Docketnos. 1924, 1924-1 of 1971
StatusPublished

This text of 66 Pa. D. & C.2d 647 (Commonwealth v. Ferraro) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ferraro, 66 Pa. D. & C.2d 647, 1974 Pa. Dist. & Cnty. Dec. LEXIS 274 (Pa. Super. Ct. 1974).

Opinion

SATTERTHWAITE, J.,

Defendant, having been found guilty upon trial by the court without a jury on charges of larceny of an automobile and related charges, has caused his motions for new trial and in arrest of judgment to be argued before the court en banc. While the filed motions were founded upon the stock reasons, including the alleged insufficiency of the evidence to convict, the only question argued and actually relied upon was the propriety of the court’s refusal, after a pretrial hearing, to suppress certain physical evidence discovered and taken by the police from defendant’s vehicle and person at the time of his arrest.

The subject of the larceny was a gold and yellow Cadillac automobile stolen from its parking place in [649]*649front of an apartment house on State Road in Bensalem Township, this county, near the Philadelphia city line, at about 1:15 a.m. on August 19, 1971. The owner of the Cadillac heard it being started up and driven away, and had immediately telephoned the Bensalem Township Police Department. The resulting radio alert was heard moments later by Officer Thompson, a Bensalem Township policeman on routine patrol on nearby Route 13. Due to road construction, Officer Thompson was required, in order to proceed to the State Road location, to cross the line into the City of Philadelphia on Route 13 (Frankford Avenue), turn left onto Grant Avenue, and left again on Torresdale Avenue which would have led him back to Bucks County and the State Road site a mile or so away. As he thus proceeded east on Grant Avenue at about 1:20 a.m., he observed the described Cadillac approaching from the opposite direction. He made a U-turn to follow it and found himself behind an intervening Lincoln automobile which was “tailgating” or following closely behind the Cadillac (within “maybe a half a car length”) as it proceeded westerly on Grant Avenue at about 35 miles per hour, thus preventing Officer Thompson from observing the license tag on the Cadillac. Officer Thompson pulled up along side the Cadillac as it stopped at a traffic light at the Frankford Avenue intersection and arrested the operator, one Thomas DiCicco, Jr., on the stolen car complaint. He noticed that the lock cylinder on the left front door of the Cadillac had been removed, leaving an empty hole under the exterior door handle.

In the meantime, Officer Hughes, a Philadelphia policeman who was in a Philadelphia police car likewise on routine patrol, had observed the Bensalem police car travelling east on Grant Avenue and followed it. Upon noting Officer Thompson’s U-turn, [650]*650Officer Hughes did likewise and pulled up behind Officer Thompson at the Frankford Avenue intersection and alongside the Lincoln vehicle which was being operated by Richard Ferraro, the within defendant, the Lincoln having also stopped behind the Cadillac at the traffic light. Officer Hughes had likewise observed the Lincoln “tailgaiting” the Cadillac as it travelled westerly on Grant Avenue “less than half a car’s length” behind the Cadillac.

As the vehicles stopped at the traffic light, Officer Thompson called back to Officer Hughes that the Cadillac had been stolen and requested him to “cover” the Lincoln while he was securing the operator of the stolen vehicle. At Officer Hughes’ direction with drawn service revolver, defendant Ferraro turned off the ignition and exited from the Lincoln. As he did so, Officer Hughes observed, as did Officer Thompson a few moments later after he had handcuffed and placed DiCicco in his police car, on the front seat of the Lincoln in open view a vise grip wrench and an open so-called “tote” bag from which were protruding a “bunch” of General Motors car key blanks on a ring. Upon being so alerted and their suspicions being aroused by all the circumstances, the officers investigated further, examining the “tote” bag and finding the contents to include additional car key blanks, a pair of cutting pliers, a key-making device, a tool fitting the rear of an ignition lock and a flashlight. Defendant was placed under arrest and, in the body search of his person incident thereto, two auto lock cylinders were found in his pocket.

We believe that the suppression judge correctly ruled that the physical items so discovered in the vehicle and on defendant’s person and thereafter seized by the police were not subject to suppression and were properly received in evidence at defendant’s [651]*651subsequent trial. While these articles were not taken pursuant to a search warrant, they were obtained under circumstances obviating the need therefor.

It is unquestionably true that, as a general rule, a search warrant issued upon a due showing of probable cause is necessary to justify an involuntary invasion of a subject’s privacy by search and seizure of property. One of the established exceptions to such general rule, however, is the so-called “plain view” doctrine, which provides that contraband or other physical evidence in plain view of the investigating officer may be seized without a warrant: Commonwealth v. Clelland, 227 Pa. Superior Ct. 384 (1974). The application of this principle, of course, is conditioned on the premise that the officer’s opportunity so to observe was not itself the product of illegal activity or position: Commonwealth v. Watkins, 217 Pa. Superior Ct. 332 (1970). The crucial question in the instant case, therefore, is whether the police had the right to be in the situation which enabled them in the first instance to see the subject tools and keys on the seat of the Lincoln automobile occupied and operated by the within defendant.

It is clear that they could not have constitutionally stopped the Lincoln as an isolated vehicle through the pretext of a routine check of credentials under The Vehicle Code without a showing of probable cause for belief that either the vehicle or the operator was involved in some violation of the law: Commonwealth v. Swanger, 453 Pa. 107 (1973). On the other hand, if there is probable cause for a reasonable conclusion from all the circumstances that the driver has committed a crime or that the vehicle contains contraband or evidence of crime, the exigency of the situation of an operable vehicle may justify a search and seizure of the contents thereof without a warrant (Chambers v. Maroney, 399 U. S. 42 (1970); Almeida-Sanchez v. [652]*652United States, 413 U. S. 266 (1973)); such exigent circumstances may be found where the probable cause arises (1) in an unforeseen way and shortly before the opportunity to search, and (2) at a time when the vehicle is mobile so that the opportunity for search is fleeting: Commonwealth v. Maione, 227 Pa. Superior Ct. 239 (1974).

Still further, under the rationale of the “stop and frisk” doctrine of Terry v. Ohio, 392 U. S. 1 (1968), an officer may stop a person for brief questioning and investigation, even if he has insufficient probable cause to make an arrest, where he has, nevertheless, observed specific instances of unusual and suspicious conduct by such person which may reasonably lead him to believe that criminal activity is afoot or that such person might be implicated in known criminal acts. As the Supreme Court observed in Adams v. Williams, 407 U. S. 143, 145-46 (1972):

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Chambers v. Maroney
399 U.S. 42 (Supreme Court, 1970)
Adams v. Williams
407 U.S. 143 (Supreme Court, 1972)
Almeida-Sanchez v. United States
413 U.S. 266 (Supreme Court, 1973)
Commonwealth v. Maione
324 A.2d 556 (Superior Court of Pennsylvania, 1974)
Commonwealth v. DeJesus
310 A.2d 323 (Superior Court of Pennsylvania, 1973)
Commonwealth v. Swanger
307 A.2d 875 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Clelland
323 A.2d 60 (Superior Court of Pennsylvania, 1974)
Commonwealth v. Hicks
253 A.2d 276 (Supreme Court of Pennsylvania, 1969)
Commonwealth v. Pollard
299 A.2d 233 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Watkins
272 A.2d 212 (Superior Court of Pennsylvania, 1970)
Commonwealth v. Brown
323 A.2d 104 (Superior Court of Pennsylvania, 1974)

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Bluebook (online)
66 Pa. D. & C.2d 647, 1974 Pa. Dist. & Cnty. Dec. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ferraro-pactcomplbucks-1974.