Commonwealth v. Lyons

390 A.2d 752, 257 Pa. Super. 142, 1978 Pa. Super. LEXIS 3147

• Court: Superior Court of Pennsylvania
• Decided: July 12, 1978
• Docket: 63
• Status: Published

Opinions

CERCONE, Judge:

The Commonwealth has taken this appeal from an order of the lower court suppressing certain gambling paraphernalia, namely poolmaking and numbers sheets. The evidence was discovered on appellant’s person and in his car following his arrest for various Motor Vehicle Code violations. There being no real dispute that the court’s suppression order is being challenged on a purely legal basis and has the effect of putting the Commonwealth out of court with respect to the gambling violations charged, we will allow the appeal. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976); Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975). Since we agree with the Commonwealth that the court’s order suppressing the evidence was in error, we will reverse and remand the case for trial. The relevant facts are as follows.

At approximately 4:20 A.M. on May 17, 1976 several uniformed Pittsburgh Police Officers were parked in two patrol cars in a grocery store parking lot when they observed appellee driving his automobile in the wrong direction on an adjacent, one-way street. Both patrol cars pursued the vehicle and brought it to a halt on the side of the street, although the engine continued to run. When one of the officers asked appellee to produce his operator’s license and motor vehicle registration, which he could not, the officer observed that appellee’s eyes were glassy, his speech was slurred, and his breath bore the odor of alcohol. The officer therefore ordered appellee from his car and placed him under arrest, noting that he could not walk without staggering. One of the officers then got into appellee’s car to turn off the ignition and lock the doors so that the car would be secure for the night. At that time the officer observed numbers slips in plain view on the front seat of the car. Contemporaneously with seizing the numbers slips and securing the car, the police were engaged in frisking appellee to determine whether he had any identification, weapons or additional numbers slips on his person, whereupon they discovered more slips in his pocket. All the slips were made of rice paper which is readily soluble in water.

Upon hearing the recitation of these facts the court suppressed all the numbers slips, reasoning that neither the search of appellee’s car nor the search of his person was justifiable without a warrant pursuant to the Fourth and Fourteenth Amendments of the Federal Constitution. The court did not specifically reach appellee’s additional assertion that his rights under the Constitution of the Commonwealth of Pennsylvania were also violated.

At the outset it should be noted that the suppression court did not have the benefit of the United States Supreme Court’s recent decision in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) when it made its decision in this case. In Mimms the United States Supreme Court reversed the Pennsylvania Supreme Court and held that a traffic violator, properly detained at roadside, may be ordered from his car during the necessary exchange of information and credentials pursuant to the stop. Since Mimms was detained solely because his automobile had an expired license, a fortiori the police officers’ ordering appellee from his car on the circumstances of this case did not run afoul of the Federal Constitution.

Having properly ordered appellee from his car and placed him under arrest, the next question is whether the police could enter appellee’s car to turn off the engine and lock the doors. Of course, if the police were constitutionally entitled to enter the car, they could seize the gambling paraphernalia which then came into plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973); Commonwealth v. Watkins, 217 Pa.Super. 332, 272 A.2d 212 (1970). There can be little rational questioning of the propriety of the police efforts to secure appellee’s automobile; their conduct did not approach the intrusion unanimously approved by the Supreme Court in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). See also Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Cf. Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238 (1976). Appellee was manifestly and indisputably in no condition to operate the vehicle himself, and it would have been an act of wanton negligence for the police to have left the vehicle unattended with its engine running and doors unlocked.¹ Hence, the discovery and seizure of the numbers slips and poolmaking sheets pursuant to the police caretaking function was not unconstitutional. See Annotation, 48 A.L.R.3d 537, 550-57; South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Since the evidence of number writing and poolmaking discovered in appellee’s car was not unconstitutionally seized, it follows that appellee’s “fruit of the poisonous tree” argument with respect to the evidence found on his person must also fail.² Commonwealth v. Scott, 469 Pa. 258, 267, 365 A.2d 140 (1976).

At this juncture the dissent argues that we should remand in order that the lower court might consider the Pennsylvania constitutional claims it previously did not consider. We, however, disagree with this approach. In the first place, if the Pennsylvania Constitution supported the lower court’s suppression order, we could invoke it in order to affirm the court’s decision, since that issue was raised in the court below. See generally 3 Vale Pa. Digest, Appeal & Error § 854(2) (1966). In any event, remanding this case for further consideration by the suppression court is singularly inappropriate. The facts were fully developed at the previous suppression hearing, and there is no possibility that the police ordering appellee from his car might have violated appellee’s Pennsylvania constitutional rights. Whether such constitutional protection exists when the traffic violation is merely speeding, going through a red light or a stop sign, or driving the wrong way on a one way street is not the question in the instant case. Here the police had probable cause to believe that appellee was both legally and physically unable to drive the car. He had no driver’s license or vehicle registration card, and he was obviously intoxicated. Under such circumstances appellee was prohibited from operating the car any further, leaving the police no alternative but to secure the car themselves. Therefore, any constitutional argument on these facts is clearly frivolous, and our remanding for such argument is a useless gesture which would, nevertheless, imply that we see some arguable merit to the question.

For the foregoing reasons, the order of the Court of Common Pleas of Allegheny County is réversed and the case is remanded for trial.

HOFFMAN, J., files a concurring and dissenting opinion, in which JACOBS, President Judge, joins. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

1 . Indeed, it has been held that an inventory search following an arrest for driving under the influence may be unreasonable if simply locking the car was a viable alternative. Re One 1965 Econoline, 109 Ariz. 433, 511 P.2d 168.

2 . Appellee does not argue that his being frisked was illegal despite the discovery of the numbers slips and poolmaking sheets in his car. He only maintains that had the police not entered his car and found the gambling paraphernalia, they would not have been justified in removing papers from his pocket.