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Commonwealth v. Reinert11/18/2005
BEFORE: STEVENS, GANTMAN, and KELLY, JJ.
1 Order affirmed.
2 JUDGE STEVENS FILED A DISSENTING OPINION.
DISSENTING OPINION BY STEVENS, J.
1 I conclude the Commonwealth met its burden of establishing the search of Appellee's vehicle was conducted for inventory purposes, and I would reverse the suppression court's order granting Appellee's motion to suppress. Therefore, I respectfully dissent.
2 Appellee was charged with driving under the influence of alcohol; driving under the influence of a controlled substance; driving under the influence of alcohol and a controlled substance; possession of a controlled substance/marijuana 30 grams or less; possession with intent to deliver a controlled substance; possession of drug paraphernalia; and related summary offenses. Appellee filed a pre-trial motion seeking to suppress the evidence seized by the police. On September 23, 2004, a suppression hearing was held, during which the following was established: On January 13, 2004, Officers Glenn Oesterling and Victor Frederick of the Amity Township Police Department conducted a traffic stop of Appellee's vehicle, and Appellee stopped his vehicle on private property. Officer Oesterling approached Appellee and asked for his license and registration. After Appellee provided the information, Officer Oesterling smelled alcohol on Appellee's breath and an odor of marijuana emanating from the inside of the vehicle. Upon questioning, Appellee told Officer Oesterling that he had a "couple of drinks." Officer Oesterling asked whether Appellee was "smoking pot in the vehicle," and Appellee indicated that he had recently finished "smoking a joint." The officers did not immediately see any contraband in plain view. Officer Oesterling administered three field sobriety tests and, when Appellee failed two of them, the officer arrested Appellee for driving under the influence of alcohol, handcuffed him, and placed him in the back of the patrol car.
3 Officer Oesterling specifically testified at the suppression hearing that the vehicle would be impounded after Appellee's arrest because Appellee's vehicle was parked in a private lot. Following the police department's guidelines for impounded vehicles, Officers Oesterling and Frederick, as the impounding officers, conducted an inventory search of the vehicle to protect them from liability. The officers searched Appellee's vehicle and found two marijuana joints in an ashtray, a marijuana bowl with residue, a cigarette roller, a brass marijuana bowl in a lower center compartment, and a closed, unlocked safe under the back seat. Upon opening the safe, Officer Frederick found a "brick" of marijuana and marijuana paraphernalia. The suppression court granted Appellee's motion to suppress the evidence discovered in the vehicle, and the Commonwealth appealed alleging that the court's ruling substantially handicapped the prosecution.
4 The first inquiry in determining whether an inventory search was valid is whether the police lawfully impounded the vehicle, i.e., had lawful custody of the automobile. See Commonwealth v. Hennigan, 753 A.2d 245 (Pa.Super. 2000). The Commonwealth contends that the police lawfully impounded Appellee's vehicle because the vehicle was left on private property, and there were no other occupants in the vehicle to drive it out of the area. Conversely, Appellee argues that the vehicle was not legally impounded because his vehicle was not located on a highway or roadway and was not blocking any flow of traffic.
5 75 Pa.C.S.A. § 3353(b) UNATTENDED VEHICLE ON PRIVATE PROPERTY, provides that:
(1) No person shall park or leave unattended a vehicle on priv
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