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HomeMy WebLinkAbout01-2198 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JEREMY LEAHMAN SMELTZ 01-2198 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., February 11, 2002:-- Defendant, Jeremy Leahman Smeltz, is charged with counts of unlawful possession of a small amount of marijuana,1 unlawful possession of drug paraphernalia,2 purchase, consumption, possession, or transportation of liquor or malt or brewed beverages,3 driving while his operating privilege was suspended or revoked,4 failure to have required financial responsibility,~ having altered, forged or counterfeit documents and plates,6 violating a restriction on alcoholic beverages,7 failure to drive a 1 35 P.S. § 780-113(a)(31). 2 35 P.S. § 780-113(a)(32). 3 18 Pa. C.S. § 6308. 4 75 Pa.C.S. § 1543(a). ~ 75 Pa.C.S. § 1786(f). 6 75 Pa.C.S. § 7122(3). 7 18 Pa.C.S. § 7513. 01-2198 CRIMINAL TERM vehicle at a safe speed,8 and unlawful possession of a scheduled IV controlled substance.9 Defendant filed a motion to suppress evidence upon which a hearing was conducted on February 5, 2002. We find the following facts. On August 30, 2001, at 4:10 a.m., Officers Gregory Thomas and Troy McNair, of the Lower Allen Township Police Department, were separately dispatched to an accident on Main Street in Lisburn, Lower Allen Township, Cumberland County. Upon arriving at the scene, Officer Thomas saw a Volkswagen in some trees on private property. The back of the car was close to the fog line on Main Street. The vehicle was extensively damaged, and inoperable. Officer Thomas learned that the Volkswagen struck a Chevrolet parked in a driveway of 1537 Main Street. The impact pushed the Chevrolet onto a lawn, and resulted in the Volkswagen going into the trees alongside of the street. Defendant, Jeremy Smeltz, who was at the scene, told Officer Thomas that he had operated the Volkswagen, and no one else had been with him. Defendant gave Officer Thomas a driver's license. When the officer ran a radio check, he learned that defendant's operating privileges were suspended. He also learned that there was an active bench warrant for defendant's arrest in Cumberland County. Officer Thomas took defendant into custody on the bench warrant. He called a tow company to tow defendant's vehicle, which was a hazard alongside of the street. Defendant asked the 8 75 P.S. § 3361. -2- 01-2198 CRIMINAL TERM 9 35 P.S. § 780-113(a)(16). -3- 01-2198 CRIMINAL TERM officer to have the car towed to his house, but the officer directed that it be towed to a Lower Allen Township garage. Officer Thomas then took defendant to a booking center. Officer McNair stayed at the scene to wait for the tow truck which did not arrive until 6:10 a.m. Pursuant to a written policy of the Lower Allen Township Police Department, Officer McNair looked into the interior of the Volkswagen. He saw nothing. He then looked into the trunk and saw a gun case. The written Department policy requires that any firearms be tagged and placed in a property room. Therefore, Officer McNair looked into the gun case. There was no gun inside, but he saw marijuana, a glass pipe, and a bottle of pills. He closed the trunk. When the tow truck arrived, the Volkswagen was towed to a township garage and impounded. After defendant was imprisoned on the bench warrant, Officer Thomas conferred with Officer McNair. A search warrant was applied for and issued by a District Justice at 8:15 a.m., to search the Volkswagen. A search resulted in the seizure of various items that the Commonwealth seeks to introduce into evidence against defendant. DISCUSSION Defendant maintains, (1) that all the observations made by Officer McNair when he looked inside the vehicle at the scene of the accident, and (2) all of the evidence the police removed from the Volkswagen pursuant to the search warrant, must be suppressed. The written policy of the Lower Allen Township Police Department provides: -4- 01-2198 CRIMINAL TERM I. The officer at the scene of a collision should ensure that property belonging to the collision victims is protected from theft and is removed to a place of safekeeping if the owner is unable to care for it. 1. When an injured driver is removed from a collision scene and/or it is necessary to tow their vehicle, this will be noted in the narrative section of the Police Incident Report (LAPD-1, attachment #5) and a Towed/Abandoned Vehicle Inventory (LAPD-34) will be completed (refer to attachment #6). 2. An inventory of the vehicle will be completed and all items taken for safekeeping will be listed on a Police Property Record (LAPD-15, Attachment #4), and the appropriate block marked on the LAPD-34. a. Cash and firearms will be tagged and placed in the property room as per General Order 83.1. (Emphasis added.) In Commonwealth v. Hennigan, 753 A.2d 245 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: Inventory searches are a well-defined exception to the search warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d 1389, 1391 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d 411 (1990). "The purpose of an inventory search is not to uncover criminal evidence. Rather, it is designed to safeguard seized items in order to benefit both the police and the defendant." Commonwealth v. Woody, 451 Pa. Super. 324, 679 A.2d 817, 819 (1996). See also Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238, 1241 (1976) (en banc). Inventory searches serve one or more of the following purposes: (1) to protect the owner's property while it remains in police custody; (2) to protect the police against claims or disputes over lost or stolen property; (3) to protect the police from potential danger; and (4) to assist the police in determining whether the vehicle was stolen and then abandoned. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) .... An inventory search of an automobile is permitted where: (1) the police have lawfully impounded the automobile; and (2) with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Id. at 368-372, 96 S.Ct. 3092 .... -5- 01-2198 CRIMINAL TERM In determining whether a proper inventory search has occurred, the first inquiry is whether the police have lawfully impounded the automobile, i.e., have lawful custody of the automobile. Opperman, 428 U.S. at 368, 96 S.Ct. 3092. The authority of the police to impound vehicles derives from the police's reasonable community care-taking functions. Id. Such functions include removing disabled or damaged vehicles from the highway, impounding automobiles which violate parking ordinances (thereby jeopardizing public safety and efficient traffic flow), and protecting the community's safety. Id. at 368-369, 376 n. 10, 96 S.Ct. 3092. The second inquiry is whether the police have conducted a reasonable inventory search. Id. at 370, 96 S.Ct. 3092. An inventory search is reasonable if it is conducted pursuant to reasonable standard police procedures and in good faith and not for the sole purpose of investigation. See Bertine, 479 U.S. at 374, 107 S.Ct. 738 ("reasonable police regulations relating to inventory procedures of automobiles administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure"). Compare Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (where police had no standard procedure with respect to the opening of closed containers found during inventory searches, marijuana found in a closed suitcase was properly suppressed). Said another way, the inventory search must be pursuant to reasonable police procedures, and conducted in good faith and not as a substitute for a warrantless investigatory search. Pennsylvania Courts have adopted the principles set forth in Opperman. See Commonwealth v. Scott, 469 Pa. 258, 267, 365 A.2d 140, 144-145 (1976) (authorizing post-arrest impoundment of vehicle where trial court found that impoundment was essential, where inventory procedure was standard practice after car had been impounded, and where vehicle was in high-crime area with expensive stereo equipment in plain view). In Brandt, the Court refined and explained Opperman as follows: [T]he Commonwealth must show that the search was in fact an inventory search pursuant to the objectives laid down in Opperman[.] The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence. Those facts and circumstances which the hearing judge must consider include the scope of the search, the procedure utilized in the search, whether any items of value were -6- 01-2198 CRIMINAL TERM in plain view, the reasons for the nature of the custody, the anticipated length of the custody, and any other facts which the court deems important in its determination. If, after weighing all of the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this "reasonable" inventory search is admissible. If, on the other hand, the hearing judge determines that the Commonwealth has not shown that the search was part of the police care-taking function rather than their investigative function, the probable cause-warrant standard must be used for determining reasonableness. (Footnote omitted.) In the case sub judice: (1) at the scene of the accident, defendant was arrested shortly after 4:00 a.m. on August 30, 2001, on a bench warrant issued by this court; (2) Officer Thomas was required to take defendant into custody on the capias;1° (3) defendant's Volkswagen was damaged and inoperable; (4) the car, which was on private property with the back close to the fog line of a street, was a safety hazard; (5) since defendant was being lawfully removed from the accident scene, Officer Thomas ordered that the Volkswagen be towed; (6) Officer McNair conducted a required inventory search of the Volkswagen pursuant to written police department policy; (7) that inventory consisted of the officer looking into the interior and the trunk of the vehicle; and (8) the officer looked into the gun case that was in plain view in the trunk pursuant to the written policy of the department requiring that any firearm in a vehicle has to be tagged and placed in a police property room. We are satisfied that the Commonwealth has shown that the search of the Volkswagen at the scene of the accident was an inventory search, and not an -7- 01-2198 CRIMINAL TERM investigative search. In Commonwealth v. Hennigan, supra, the Superior Court stated that police may "[i]mpound a vehicle in circumstances that involve the community care-taking function of the police, such as public safety concerns and traffic control concerns ...."In Hennigan, the Superior Court concluded that an operable vehicle, even though it was located in a high-crime area, could not be inventoried and towed after its occupants were arrested because it was lawfully parked. In contrast, in the present case, the inoperable Volkswagen was into trees on private property, and the rear of the car, which was close to the fog line on the street, constituted a safety hazard. Since defendant was lawfully removed from the scene, Officer Thomas properly ordered that the car be towed. Defendant did request that the car be towed to his house. However, once he was removed from the scene, it was the responsibility of the police to tow the car because it was a safety hazard. Since it was a police ordered tow, it was not unreasonable to have the car taken to a township garage. The required inventory search of the Volkswagen was in conformity with a written policy of the police department. The scope of the search was reasonable and in good faith. The written policy requiring the removal and safekeeping of any firearms from a vehicle being towed at the direction of the police, is reasonable. Once Officer McNair saw the gun case in the trunk, it was reasonable for him to believe that there was a gun inside, therefore, it was reasonable for him to look into the case. After discovering marijuana and drug paraphernalia inside, the vehicle was towed and Commonwealth v. Davis, 786 A.2d 173 (2001). -8- 01-2198 CRIMINAL TERM impounded, a search warrant, supported by probable cause, was obtained, and resulted in the legal seizure of those items and various other items in the vehicle. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2002, the motion of defendant to suppress evidence, IS DENIED. By the Court, Edgar B. Bayley, J. Michael W. Mervine, Esquire Assistant District Attorney Timothy L. Clawges, Esquire For Defendant :saa -9-