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HomeMy WebLinkAbout00-2159 criminalCOMMONWEALTH go DARYL L. FAILOR · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 2000-2159 CRIMINAL TERM IN RE' OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of JANUARY, 2001, the Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress evidence is DENIED. By the Court. Edward E. Guido, J. District Attorney Samuel W. Milkes, Esquire For the Defendant 'sld COMMONWEALTH go DARYL L. FAILOR · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 2000-2159 CRIMINAL TERM IN RE: OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The defendant filed an Omnibus Pretrial Motion in the form of a motion to suppress evidence. He alleges that the search of his vehicle was unlawful. An evidentiary hearing on the motion was held before this Court on December 19, 2000. The parties were given the opportunity to file briefs. While the defendant has filed a brief, the Commonwealth has elected not to do so. This matter is now ready for disposition. FINDINGS OF FACT On July 20, 2000, Middlesex Township Police Officer Seibert stopped the defendant's vehicle in connection with a stop sign violation. The defendant immediately got out of his vehicle and began heading in the direction of the police cruiser. The officer used his loud speaker to order the defendant to get back into his vehicle. The defendant ignored the officer. At that point the officer noticed that another vehicle had pulled in behind him. The driver and an occupant got out of that vehicle and headed directly for the defendant. 2000-2159 CRIM~AL TERM The officer jumped out of his vehicle and ordered everyone back into their vehicles. They all ignored him. A fist fight broke out between the defendant and the driver of the other vehicle. After calling for back up, the officer attempted to break up the struggle. All three of them ended up wrestling on the ground.~ While they were all wrestling, the driver of the other vehicle kept yelling that the defendant had a gun. The officer managed to get both the defendant and the other driver handcuffed. He patted them down and found no weapons. The defendant acknowledged that he had a gun in his vehicle. Once the back up officers arrived, the defendant and the other driver were placed in separate police cars. Officer Seibert determined to take both of them back to the station for questioning so that he could determine what charges to file.2 Rather than leave the defendant's vehicle parked along the side of the highway, Officer Seibert felt that it should be towed to a safe place.3 The defendant gave him permission to do so. Officer Seibert directed one of his back up officers to secure the vehicle so that it could be towed. He also advised the other officer that there was a weapon in the vehicle. The back up officer did an inventory search during which he found the loaded firearm which gave rise to these charges. CONCLUSIONS OF LAW 1) The gun was recovered pursuant to a proper inventory search of defendant's vehicle. ~ The occupant of the other vehicle did not take part in the melee. 2 The officer eventually decided to charge only the other driver in connection with the struggle. After interviewing both parties at the station he determined that the struggle was not a mutual affray, but, that defendant had been acting in self defense. 3 The other vehicle was removed from the side of the highway by the occupant who did not take part in the altercation. 2000-2159 CRIMINAL TERM .2) Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence should be denied. DISCUSSION A search conducted without a warrant is generally deemed to be unreasonable for constitutional purposes unless it falls within a recognized exception to the warrant requirement. Com. V. Cassanona, 748 A.2d 207, 211 (Pa. Super. 2000). When the Commonwealth is asserting an exemption from the requirement of a search warrant, it bears the burden of establishing that the search falls within a recognized exception. Com. V. Timko, 491 Pa. 32, 39 417 A.2d 620, (1980). Inventory searches are a well defined exception to the search warrant requirement and are a recognized part of the law of this Commonwealth. Com. v. Zook, 532 Pa. 79, 615 A.2d 1, (1992). Inventory searches are designed to serve one or more of the following purposes' 1) protect the owner's property while it is in police custody; 2) protect police against claims or disputes over lost property; 3) protect police from danger; and 4) assist the police in determining if a vehicle is stolen. Com. v. Hennigan, 753 A.2d 245,255 (Pa. Super. 2000). "An inventory search of an automobile is permitted where' (1) the police have lawfully impounded the automobile; and (2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle." /d. It is incumbent on the Commonwealth to show that the search was for a proper inventory purpose and not for the purpose of gathering incriminating evidence. Commonwealth v. Brandt, 244 Pa. Super. 154, 366 A.2d 1238, 1242 (1996). The search must have been "conducted in good faith and not as a substitute for a warrantless investigatory search." Hennigan, 753 A.2d at 255. 2000-2159 CRIMINAL TERM Applying the law to the facts before us we are satisfied that the firearm was obtained pursuant to a valid inventory search. We are convinced that the search was conducted in good faith for the primary purposes of securing the vehicle to protect the owner's property while it was in police custody and to protect the police from danger.4 We are also satisfied that the vehicle was lawfully in police custody and that the police acted in accordance with a reasonable standard policy in conducting the search. The vehicle was lawfully in police custody at the time of the search. The fact that the officer eventually determined that defendant had not engaged in a mutual affray, but rather acted in self defense, does not vitiate the legality of the arrest. Certainly the facts witnessed by the officer provided probable cause for him to believe that both parties had engaged in simple assault by mutual affray. The arrest for that offense justified the officer taking the vehicle into custody pursuant to Section 3352 of the Vehicle Code, which provides' Removal of vehicle by or at direction of police Any police officer may remove or cause to be removed to the place of business of the operator of a wrecker or to a nearby garage or other place of safety any vehicle found upon a highway under any of the following circumstances' · · · (3) The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay. 75 Pa. C.S.A. § 3352 (c) (3). In any event, recognizing the need to safeguard his vehicle, the defendant actually gave the police permission to have it towed. 4 As Officer Seibert testified, "I instructed Officer Nieves to contact Miller and Sam's Towing, secure the vehicle and check for any valuables or a gun in the vehicle." N.T.p. 6. The officers knew, both from the statements of the one combatant as well as the admission of the defendant, that a gun was in the vehicle. It would have been irresponsible for the police to allow the vehicle to be towed without first securing the firearm. 2000-2159 CRIMINAL TERM Whether the police acted in accordance with "standard policy" in securing and inventorying the vehicle is a little more problematic. We would have preferred to hear the testimony of the officer who conducted the search as to the policy he was following and the procedure he used. Additionally, Officer Seibert could have provided a little more detail on the policy of his department with regard to such searches. However, we are satisfied that the facts of record, along with the reasonable inferences deducible therefrom, are sufficient to allow us to conclude that the search was conducted in accordance with a reasonable standard policy,s Because we are convinced that the search was conducted in good faith for the protection of the owner and the police, and not for the purpose of uncovering evidence of a crime,6 or to avoid getting a search warrant, we find that it was a valid inventory search. Therefore, the defendant's Motion to Suppress the firearm will be denied. 5Officer Seibert testified as follows: A We were looking for the weapon based on the statement as well as the vehicle being impounded. We did not want a weapon to be taken to the towing station or being unsecured. Any time I secure a vehicle I normally take valuables from the vehicle and secure them prior to them going to the towing station. (emphasis added) Notes of testimony, p. 9. Further, the following exchange between defendant's counsel and the officer sheds light upon standard procedure as well as that used in the instant case: Q Officer, the gun that was ultimately found was found, you say, under the driver's seat of the Failor vehicle. Is that right? A That's correct. Q So you would agree with me that it was not in plain view. It had to be discovered? A I'm not the person that located the firearm. Whether or not he could see it from leaning in the vehicle to secure it, I'm not aware of that. In my experiences normally securing a vehicle just as a police officer, these areas are places that I would look and I would normally see something laying under the seat while I was securing the vehicle or taking keys or locking a steering column. Notes of testimony, p.8. 6 There is no indication that the officers had any suspicion that defendant was not licensed to carry the firearm at the time of the inventory search. 2000-2159 CRIMINAL TERM ORDER OF COURT AND NOW, this 12TM day of JANUARY, 2001, the Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress evidence is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney Samuel W. Milkes, Esquire For the Defendant :sld