# Commonwealth v. Timko

> Supreme Court of Pennsylvania · July 24, 1980 · 491 Pa. 32

URL: https://www.frixlaw.com/law-library/cases/9650872

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Robert George TIMKO, Jr., Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 24, 1980
- **Citations:** 491 Pa. 32; 417 A.2d 620; 1980 Pa. LEXIS 757
- **Precedential status:** Published
- **Opinion:** Dissent by Larsen
- **Judges:** Eagen, O'Brien, Roberts, Nix, Larsen, Flaherty, Kauffman
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650872

## Opinion text

LARSEN, Justice,
dissenting.
I dissent. I believe there exist several compelling justifications for upholding the validity of the seizure and search of appellant’s valise and the admissibility of the contents of that valise. I would therefore affirm the order of the Superior Court.
The majority opinion states “absent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible.” (Emphasis added.) While I have no fundamental quarrel with this statement of the law, I think the application of that law mandates the admissibility of the contents of the valise. Not only are “exigent circumstances” present, but it is my firm conviction that appellant could not have had a reasonable or legitimate expectation of privacy in his valise under the circumstances of this case.
*40 The fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable governmental invasions of legitimate expectations of privacy. Rakas v. Illinois, 439 U.S. 128, 142-143, 150-151 , 99 S.Ct. 421, 430, 434 , 58 L.Ed.2d 387 (1978); United States v. Chadwick, 433 U.S. 1, 7, 11 , 97 S.Ct. 2476, 2481, 2483 , 53 L.Ed.2d 538 (1977). Therefore, the threshold inquiry is whether or not any legitimate expectations of privacy have been invaded — if not, the protections of the Fourth Amendment are not triggered. Rakas v. Illinois, supra, 99 S.Ct. at 429, 430 .
A legitimate expectation of privacy by definition means more than a subjective expectation that evidence will not be discovered, it means an expectation which society is prepared to recognize as reasonable. Rakas v. Illinois, supra, 99 S.Ct. at 430-31, n.12 , citing Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516-517 , 19 L.Ed.2d 576 (1967). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, supra, 99 S.Ct. at 431 n.12 (emphasis added). Indeed, in a case relied upon by the majority, Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979), the United States Supreme Court recognizes “[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearances.” (Emphasis added.) Id., 442 U.S. 764 -765, n.13, 99 S.Ct. 2593 , n.13. Surely such reasoning is applicable to the instant situation.
Appellant exhibited bizarre anti-police behavior which included locking himself in his van and reaching for the brown valise in an offensive and aggressive manner. The policemen reacted to this danger by correctly and reasonably interpreting appellant’s behavior as going for a weapon in *41 the valise (they had observed several boxes of shotgun shells in the van). Such behavior of appellant removed whatever legitimate expectations he may have had regarding the privacy of the valise and its contents. Under these circumstances, I would hold that appellant did not have a “legitimate expectation of privacy” that was protected by the Fourth Amendment. See Rakas v. Illinois, supra, 99 S.Ct. at 430-31, n.12 (“On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon, [citations omitted].”)
The factual matrices of both United States v. Chadwick, supra and Arkansas v. Sanders, supra, are worlds apart from that presented herein. In those cases, the items seized and then searched without warrants were items of personalty in which there reposed a legitimate expectation of privacy and to which the respective defendants exhibited no unusual behavior that would remove those expectations of privacy. (Chadwick involved a double-locked footlocker taken from a train station; Sanders involved suitcases taken from an airport. In both cases, the defendants had been under surveillance and were arrested for drug offenses while leaving the train station/airport respectively, and they demonstrated no other unusual behavior, criminal or otherwise.) Thus, the imprimatur of the Fourth Amendment was firmly stamped upon those items. 1 In the instant case, while the imprimatur of the Fourth Amendment was initially stamped upon appellant’s valise, it was cancelled by his behavior toward that valise and the arresting officers.
Even assuming, for the sake of argument only, that legitimate expectations of privacy did exist in the valise, I *42 believe there were exigent circumstances justifying its warrantless search. First, I believe the search of the valise was a search incident to a lawful arrest well within the parameters of that exception as defined by the decisions of the United States Supreme. Court. The majority quotes the following holding from United States v. Chadwick, supra, 433 U.S. at 15 , 97 S.Ct. at 2485 .
Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
While this quote supports the majority’s position, I believe that when it is considered in reference to the facts of Chadwick , and in light of other “search incident to arrest” cases of the United States Supreme Court, Chadwick does not impose the absolute prohibition against the type of police activity involved herein as the majority believes it does. In Chadwick , the owners of a footlocker were lawfully arrested without a struggle and the double-locked footlocker, which had been placed in the trunk of a parked vehicle, was seized and taken to the Federal Building. Approximately an hour and one-half hour later, the arresting federal agents opened and searched the footlocker, finding marijuana.
In the instant case, appellant reached for his valise to obtain a weapon. In rapid fashion, appellant was pulled from his van and subdued while another officer was removing the valise and examining its contents. The exact chronology is not clear, but what is clear is that the search occurred in very close proximity to the arrest, either simultaneously or quite shortly thereafter.
Thus, appellant’s arrest is much closer to the facts of United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) than to those of Chadwick . Robinson was arrested for operating without a driver’s license. The *43 arresting officer then searched Robinson’s pockets, found a cigarette packet, and removed it from the pocket. Robinson was subdued and the officer had exclusive control over the packet. The officer then examined its contents. Robinson objected to the admission into evidence of the heroin found in the packet. The United States Supreme Court stated:
A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. (Emphasis added).
Further, this Court has addressed “search incident to arrest” facts similar in important respects to those involved herein. In Commonwealth v. Sharpe, 449 Pa. 35 , 296 A.2d 519 (1972), this Court considered the constitutionality of a warrantless seizure and search of a defendant’s overnight bag. Appellant there was arrested on probable cause that he had committed a murder. Suspecting proof would be found in appellant’s bag, the arresting officers asked to have it. Upon appellant’s refusal, a struggle for the bag ensued which the officers won. Thereupon, an officer searched the tote bag at the scene of the arrest. The appellant challenged the validity of the seizure and search of the tote bag. *44 A unanimous court per Mr. Chief Justice Jones stated “[t]he arrest being lawful, it necessarily follows that the seizure of the challenged evidence [i. e., the bag and its contents] was also constitutionally valid as an incident thereto.” 449 Pa. at 42 , 296 A.2d at 523 .
Sharpe is determinative — appellant’s brown valise, and its contents, are admissible as the search was valid. The efficacy of Sharpe and Robinson has not been diminished by subsequent cases of this Court or of the United States Supreme Court. The difference between these cases and the Chadwick/Sanders cases are factual — but those differences are critical. As noted in Sanders “[c]ourts and law enforcement officials often find it difficult to discern the proper application of [Fourth Amendment] principles to individual cases, because the circumstances giving rise to suppression requests can vary almost infinitely. Moreover, an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights.” Id., 99 S.Ct. at 2589. See also, United States v. Edwards, 415 U.S. 800, 808-809 , 94 S.Ct. 1234, 1239-1240 , 39 L.Ed.2d 771 (1974) (quoting with approval the First Circuit Court of Appeals in United States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970) which stated: “While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”)
Finally, I believe the search in this case was necessary to protect the safety of the arresting officers. The majority opines:
The Commonwealth asserts the exigencies of the situation were such that an immediate search was necessary to protect the safety of the officers. While the events leading up to the search were such as would lead a reasonable policeman to believe the zippered bag might contain a weapon, nothing further occurred to justify an immediate warrantless search. For example, there is no suggestion *45 the bag contained explosives or some other item which might in some way endanger the police officers or others, nor is there a suggestion the bag or its contents were in danger of concealment or destruction. At 623.
I believe this places too great a burden on police officers, and totally fails to allow for reasonable measures to protect their safety. The point is the policemen had no way of knowing what was in the valise — all they knew was that Timko was going for the valise in an offensive and aggressive manner. That, coupled with his bizarre behavior, seems to me ample justification to permit the immediate search of the valise almost simultaneously with Timko’s arrest. The bag could have held a handgrenade, a bomb, or, as it did prove to hold, a gun. I do not believe that policemen should be required to guess the nature of an aggressor’s weaponry in such situations. Again, Sanders also left room for a decision based on this ground. In note 11, the United States Supreme Court states, “There may be cases in which the special exigencies of the situation would justify the warrant-less search of a suitcase. Cf. Cady v. Dombrowski, 413 U.S. 433 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973) (police had reason to suspect automobile trunk contained a weapon.)” Sec also, Texas v. White, 423 US. 67, 96 S.Ct. 304 , 46 L.Ed.2d 209 (1975); Chambers v. Maroney, 399 U.S. 42 , 90 S,Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Johnson, 467 F.2d 630 (2d Cir. 1972) (officers had reason to believe suitcase held a loaded weapon — under these circumstances, immediate search permitted) and cases cited therein. The Fourth Amendment was never intended to extract a price as dear as the lives of law enforcement officers, nor has it been so interpreted. The majority’s rationale provides inadequate considerations for the safety of police officers. I hope that, despite the result reached by the majority in this case, police officers will continue to exercise the reasonable quick action which the police exercised in this case . . . their lives may depend upon it.
KAUFFMAN, J., joins in this dissenting opinion.
. In Chadwick , the Court stated: “In this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause.” 433 U.S. 11 , 97 S.Ct. 2483 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650872. Public record. Not legal advice.