Petition for Writ of Certiorari — Pennsylvania v. Kilgore (Nos. 95-1738, 95-1691)
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85-1750.
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1995
COMMONWEALTH OF PENNSYLVANIA,
Petitioner
v.
RANDY LEE KILGORE,
Respondent
On Petition for Writ of Certiorari to
the Supreme Court of Pennsylvania
PETITION FOR WRIT OF CERTIORARI
H. STANLEY REBERT
District Attorney
CHRISTY H. FAWCETT
Chief Deputy Prosecutor
RONALD EISENBERG
Special Assistant District Attorney
(Counsel of Record)
JOAN WEINER
Special Assistant District Attorney
CATHERINE MARSHALL
Special Assistant District Attorney
York County District Attorney’s Office
c/o Ronald Eisenberg, Esquire
1421 Arch Street
Philadelphia, Pa. 19102
(215) 686-5700
—S)
™
PY
QUESTION PRESENTED
Has the Pennsylvania Supreme Court properly
understood this Court’s precedent in declaring that
police who have probable cause to search an automobile
must instead "secure" the vehicle and send other officers
to obtain a warrant?
TABLE OF CONTENTS
PAGE
Question Presented i
Table of Authorities iv-Vi
Opinions Below l
Statement of Jurisdiction 2
Constitutional Provision Involved 2
Statement of the Case 4-6
Reasons for Granting the Writ 7-13
The Pennsylvania Supreme Court has
effectively abrogated the "automobile
exception" by declaring -- in reliance
on this Court’s Fourth Amendment
jurisprudence -- that police acting with
probable cause may not search a motor
vehicle but must instead "secure" the
vehicle and send other officers to
obtain a warrant.
Conclusion 14
Appendix:
Judgment and Opinion of the Supreme
Court of Pennsylvania App. 1-16
Judgment and Opinion of the Superior
Court of Pennsylvania App. 17-30
Opinion of the Court of Common
Pleas of York Counts \pp | .4)
Notes of Testimony, Suppression
if) } 1 ADI Pe, fy
TABLE OF AUTHORITIES
FEDERAL CASES
California v. Carney, 471 U.S. 386 (1985)
Cardwell v. Lewis, 417 U.S. 583 (1974)
Carroll v. United States, 267 U.S. 132 (1925)
Chambers v. Maroney, 399 U.S. 42 (1970)
Chapman v. United States, 365 U.S. 610 (1961)
Colorado v. Bannister, 449 U.S. 1 (1980)
- Coolidge v. New Hampshire, 400 U.S. 814 (1971)
Michigan v. Thomas, 458 U.S. 259 (1982)
Texas v. White, 423 U.S. 67 (1975)
United States v. Cruz, 834 F.2d 47 (2d Cir. 1987)
United States v. Hatley, 15 F.3d 856 (9th Cir.
1994)
United States v. Johns, 469 U.S. 478 (1985)
31 F.3d 1304 (4th Cir.
1994)
United States v. Markham, 844 F.2d 366 (6th Cir.
1988)
United States v. Ross, 456 U.S. 798 (1982)
iV
8,9
a
te -
United States v. Swingler, 758 F.2d 477 (10th Cir
1985) 1]
STATE CASES
Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d
381 (1968) 12
Commonwealth v. Kilgore, 1995 WL 790060
(Pa., opinion dated December 26, 1995.
judgment entered January 24, 1996) 1,6
Commonwealth v. Kilgore, 437 Pa. Super. 491, 650
A.2d 462 (1994) 1,6
Commonwealth v. Labron, 669 A.2d 917 (Pa., opinion
dated December 29, 1995, judgment entered
January 12, 1996) 6,13
Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62
cert. denied. 409 U.S. 1031 (1972) 12
Commonwealth v. White, 669 A.2d 896 (Pa., opinion
dated December 29, 1995, judgment entered
January 4, 1996) 6,13
CONSTITUTION AND STATUTES
U.S. Const. amend. IV passim
U.S. Const. amend. XIV 2
28 U.S.C. § 1257(a) 2
18 Pa. CS. § 903 .
35 Pa. C.S. § 780-113(a)( 16) 5
35 Pa. C.S. § 780-113(a)(30)
OPINIONS BELOW
The January 24, 1996 judgment and opinion of
the Supreme Court of Pennsylvania, reversing the
judgment of the intermediate appellate court, the
Superior Court of Pennsylvania, is reported at 1995 WL
790060 (Pa. 1995), and is reprinted in the Appendix at
App. 1-16.! The November 23, 1994 judgment and
opinion of the Superior Court of Pennsylvania, reported
at 437 Pa. Super. 491, 650 A.2d 462 (1994), is reprinted
in the Appendix at App. 17-30. The March 1, 1993
opinion of the Court of Common Pleas of York County
is unreported, but is reprinted in the Appendix at App.
31-41.
STATEMENT OF JURISDICTION
This is a state criminal prosecution where
respondent filed a motion in the trial court, the York
County Court of Common Pleas, seeking to suppress
cocaine on the ground that it was seized from a truck in
violation of the Fourth and Fourteenth Amendments of
the United States Constitution. On October 1, 1991, the
trial court declined to suppress the evidence, finding that
the warrantless seizure was supported by probable cause
and hence, was lawful. Respondent was subsequently
convicted.
Upon appeal by respondent, the intermediate state
appellate court, the Superior Court of Pennsylvania,
affirmed the conviction, upholding the suppression order
in a judgment and opinion dated November 23, 1994.
'The Court’s opinion shows a filing date of as
December 26, 1995, but judgment was not entered, and
the opinion was not issued, until January 24, 1996.
l
Respondent filed a petition for allowance of
appeal in the Supreme Court of Pennsylvania. On May
11, 1995, the supreme court granted the petition for
allowance of appeal. After briefing and oral argument,
the court reversed the decision of the superior court,
holding that, under the "automobile exception" derived
from this Court’s Fourth Amendment case law, a police
officer who develops probable cause to believe that
contraband is in a vehicle must nevertheless "secure" the
vehicle and send other officers to obtain a search
warrant before conducting a search. Accordingly, the
court concluded, "the search of [respondent’s] vehicle
was conducted in a manner which violated his rights
under the Fourth Amendment." App. 8.
The jurisdiction of this Court to review the final
judgment of the Supreme Court of Pennsylvania, based
upon its construction of the federal Fourth Amendment,
is invoked under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourth Amendment of the United States
Constitution, which provides:
The right of the people to be
secure in their persons, houses, papers,
and effects, against unreasonable searches
and seizures, shall not be violated, and no
warrants shall issue, but upon probable
cause, supported by oat’, or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.
The Due Process Clause of Section | of the
Fourteenth amendment of the United States Constitution
which provides:
(Njor shall any State deprive any
person of life, liberty, or property,
without due process of law
STATEMENT OF THE CASE
This case is one of a series of recent decisions in
which the Pennsylvania Supreme Court has held, on the
basis of Fourth Amendment precedent, that an
automobile cannot be searched without either a warrant
or a case-by-case showing that exigent circumstances --
beyond the inherent mobility of the vehicle -- prevented
the securing of a warrant.
The case involves the search of a truck parked at
a farmhouse in York County, Pennsylvania, on a
Saturday night over the July 4th holiday weekend. A
police informant had negotiated through respondent’s ex-
wife, Kelly Kilgore, to purchase one-eighth of a
kilogram (four and one-half ounces) of cocaine. Under
police supervision, the informant met Ms. Kilgore in the
parking lot of a general store near her father’s farm.
The two agreed that Ms. Kilgore would first
provide a one-ounce "sample" of the cocaine for $1,300
before the informant’s "customer" purchased the balance.
Ms. Kilgore took the $1,300 and left in her car to get
the "sample". App. 44-47.
An undercover officer followed her to the
driveway of the family farmhouse, where she was met
by her ex-husband, respondent. Respondent and Ms.
Kilgore then walked together to respondent’s truck,
parked some distance from the house. The investigating
officer drove past the farmhouse and made a U-turn.
When he again drove by the farmhouse minutes later, he
saw respondent and Ms. Kilgore walking away from
respondent’s truck.
Ms. Kilgore got in her car and returned to the
general store, where she delivered an ounce of cocaine
4
to the informant. App. 55-56. She was immediately
arrested and taken to her father’s farmhouse. A search
of her person produced a small amount of cocaine and
drug paraphernalia, but did not uncover either the
$1,300 just paid to her by the informant or the cocaine
yet to be delivered under the negotiated deal. Ms.
Kilgore’s father consented to a search of the farmhouse
and out-buildings. That search also failed to uncover
the money and drugs.
Because they had seen respondent and his ex-
wife go to the truck, the police searched the vehicle for
the cocaine that was to be delivered. On the floor they
found three and one-half ounces of cocaine hidden in a
disposable coffee cup. Respondent then admitted to the
police that he had hidden the informant’s $1,300 drug
payment under the living room rug in the farmhouse.
App. 47-49, 51, 57-58. Respondent was charged with
possession, delivery and possession with the intent to
deliver a controlled substance, 35 Pa.C.S. § 780-
1 13(a)(16), (a)(30), and criminal conspiracy, 18 Pa.C.S.
§ 903.
Respondent moved to suppress the drugs, arguing
that the warrantless search of his truck was unlawful.
App. 59.At the suppression hearing on October 1, 1991,
respondent presented no evidence, and the investigating
officers’ testimony remained uncontradicted. The
suppression court credited the officers’ testimony and
denied respondent’s suppression motion, concluding that,
because the police had probable cause to believe that
there were cocaine and drug proceeds in the truck,
"there was no need for a search warrant." App. 60.
Petitioner appealed to the intermediate state
appellate court, the Superior Court of Pennsylvania. On
November 23, 1994, the superior court affirmed the
5
suppression order and issued an opinion explaining that,
under the "automobile exception," once "probable cause
exists, the police are not required to watch over or
immobilize a vehicle while a search warrant is
obtained." App. 24; Commonwealth v. Kilgore, 437 Pa.
Super. 491, 497, 650 A.2d 462, 465 (1994).
Respondent petitioned for discretionary review.
The state supreme court granted review in this case and
two other unrelated cases involving the "automobile
exception." The state court then held in each of the
three cases that the Fourth Amendment’s "automobile
exception" required not only probable cause for the
search, but also proof that the police did not have time
or opportunity to get a warrant. That burden was not -
met here, the court held, because the police should have
waited at this rural location until other officers searched
out a magistrate to issue a warrant. App. 7-8;
Commonwealth v. Kilgore, 1995 WL 790060 at p. 3.
Because of the court’s insistence that the
"automobile exception" precludes a search until officers
place the vehicle under police guard, while other officers
go off to seek a warrant, petitioner filed this petition for
writ of certiorari.
2The other cases in the trilogy are Commonwealth
v. Labron, 669 A.2d 917 (Pa., opinion dated December
29, 1995, judgment entered January 12, 1996), and
Commonwealth v. White, 669 A.2d 896 (Pa., opinion
dated December 29, 1995, judgment entered January 4,
1996).
REASONS FOR GRANTING THE WRIT
The Pennsylvania Supreme Court has
effectively abrogated the "automobile
exception" by declaring -- in reliance
on this Court’s Fourth Amendment
jurisprudence -- that police acting with
probable cause may not search a motor
vehicle but must instead "secure" the
vehicle and send other officers to
obtain a warrant.
The decision below -- one of a trilogy of recent
‘automobile exception" cases wrongly decided by the
Pennsylvania Supreme Court -- purports to apply the
“automobile exception" to the Fourth Amendment but
turns seventy years of constitutional automobile-search
jurisprudence on its head.
Over those many years, this Court has repeatedly
held that, because motor vehicles are inherently mobile
and because citizens enjoy a substantially diminished
expectation of privacy in their automobiles, warrantless
car searches are permitted upon a demonstration of
probable cause without more.
The Pennsylvania Supreme Court has completely
eviscerated that principle. Purporting to interpret the
Fourth Amendment, it held in this case and the two
others that probable cause alone is insufficient as a
matter of law to justify a warrantless car search.
The police here unquestionably had such
probable cause. They negotiated a cocaine sale to be
consummated after delivery of payment and provision of
a "sample" of the drug. Respondent’s intermediary
brought the money to a farmhouse, walked with him to
7
a truck, and moments later returned to the police agent
with the agreed cocaine "sample." Searches of the
intermediary and (upon the owner’s consent) of the
farmhouse, failed to turn up either money or drugs. The
police, reasonably believing that the contraband was
inside respondent's truck, seized the drugs from the
truck rather than leaving the vehicle for several more
hours to secure a warrant. The officers’ conduct was in
complete accord with this Court’s Fourth Amendment
interpretations.
Yet the Pennsylvania Supreme Court, although
acknowledging the existence of probable cause, ruled
that this was not enough. The court stated that the
automobile exception requires the showing of exigent
circumstances beyond the inherent mobility of the
vehicle itself. No such exigency could exist here, held
the court, because the police could have posted guard at
the farm while they went off, on the Saturday night of
the July 4th weekend, to find a magistrate and secure a
warrant.
That interpretation of the Fourth Amendment is
flatly wrong. This Court has left no room for argument
on the question: a warrantless car search is proper under
the Fourth Amendment if it is made with probable
cause. There is no need to first impound the vehicle or
demonstrate an inability to obtain a warrant.
Thus, in California v. Carney, 471 U.S. 386
(1985), when a government agent developed information
about a motor home being used for illicit purposes,
conducted surveillance, corroborated his information,
and entered the vehicle without a warrant, this Court
held that the warrantless entry was perfectly proper
under the “automobile exception" because the agent had
probable cause.
There is no meaningful distinction between
Carney and the present case. The police there, as here,
had probable cause to believe that a vehicle was being
used in criminal activity and they conducted a
warrantless search based on a showing of probable cause
alone. No guard was posted; no exigent circumstances,
beyond the inherent mobility of motor vehicles, were
shown. Because the “automobile exception" did not
require these things, the warrantless search was upheld.
The result should have been the same here but was not
simply because the Pennsylvania Supreme Court
misunderstands Fourth Amendment jurisprudence.
This Court’s holding in United States v. Ross,
456 U.S. 798, 807 (1982), further demonstrates the
Pennsylvania Supreme Court’s erroneous view. In Ross,
the police received a tip from an informant and went to
the targeted location, where they found Ross selling
drugs from the trunk of a car. They arrested Ross and
immediately searched his car and its trunk. After
finding drugs in a container in the trunk, the police
transported the car to a police station and searched it
again. This time they found a quantity of cash in
another container.
Relying on the "automobile exception,” this
Court upheld the warrantless search of both the car and
the containers at both locations because they were
supported by probable cause. There was no
impoundment or special exigency. If the warrantless
search in Ross was valid under the "automobile
exception" upon a showing of probable cause alone, so
was the search in this case.
The holdings in Carney and Ross are not
extraordinary; they are but two examples of this Court’s
long-standing view -- going back to Carroll v. United
9
States, 267 U.S. 132 (1925) -- that, because citizens
have a diminished expectation of privacy in their
automobiles, and because automobiles are inherently
mobile, the Fourth Amendment permits police officers to
conduct warrantless car searches as long as they have
probable cause. See United States v. Johns, 469 U.S.
478, 484 (1985) ("A vehicle lawfully in police custody
may be searched on the basis of probable cause to
believe that it contains contraband, and there is no
requirement of exigent circumstances to justify such a
warrantless search"); Michigan v. Thomas, 458 U.S. 259
(1982) (right to conduct warrantless search of
automobile with probable cause does not "depend upon a
reviewing court’s assessment in each particular case that
the car would have been driven away, or that its
contents would have been tampered with, during the
period required for the police to obtain a warrant");
Texas v. White, 423 U.S. 67 (1975) (warrantless car
search at police station upon probable cause held
proper); Cardwell v. Lewis, 417 U.S. 583 (1974) (under
"automobile exception," probable cause allowed for
warrantless search without proof of articulable
exigency); Chambers v. Maroney, 399 U.S. 42 (1970)
(warrantless search of impounded vehicle upheld under
"automobile exception" based on showing of probable
cause).
This principle simply cannot be defeated by a
claim that the police must guard the car, without
searching it, while they send out for a warrant. The
Court has made absolutely plain that, as a constitutional
matter, there is no difference between immediately
searching a vehicle at the scene or impounding the car
while an officer seeks a warrant. Texas v. White;
Chambers v. Maroney. Either course is "reasonable
10
under the Fourth Amendment." It is the existence of
probable cause to search the automobile, without
showing specific exigencies, that satisfies the
Constitution.
3Nor does it matter if the automobile is, as here,
already immobile before the police arrived. Colorado y
Bannister, 449 U.S. | (1980) (automobile exception
applies even where the police never see vehicle in actual
motion).
4The federal courts of appeal, unlike the
Pennsylvania Supreme Court, have had little trouble
applying this clear case law, and have regularly rejected
attempts to graft onto the “automobile exception" the
extra requirement erroneously pronounced here. See
United States v. Jones, 31 F.3d 1304 (4th Cir. 1994)
(warrantless search of automobile justified with probable
cause even though officers had advance information
about truck before conducting search); United States v.
Hatley, 15 F.3d 856 (9th Cir. 1994) (as long as
warrantless car search based on probable cause, no
further exigency need be shown); United States v.
Markham, 844 F.2d 366, 368 (6th Cir. 1988) (police do
not have to show inability to obtain warrant; Fourth
Amendment allows search on showing of probable cause
alone); United States v. Cruz, 834 F.2d 47 (2d Cir.
1987) (where agents develop probable cause, arrest
owner of truck and search truck two hours later without
a warrant, search permitted under “automobile
exception"); United States v. Swingler, 758 F.2d 477
(10th Cir. 1985) (view that “automobile exception"
applies only when there are exigent circumstances “has
never been endorsed by the [United States] Supreme
Court and is, in fact, inconsistent with that Court's
development of the exception").
ll
Clearly, the Pennsylvania Supreme Court has
interpreted the automobile exception in a manner wholly
inconsistent with this Court's development of the
exception. It is difficult to imagine a situation where an
impoundment requirement could not be invoked. Even
as to a vehicle that is actually in motion when probable
cause is developed, the police will not be in a position
to conduct a search until they have effected a stop.
Once that occurs. however, the logic of the Pennsylvania
Supreme Court would mandate the posting of guards
while other officers go off in search of a warrant.
Indeed, the court applied such a requirement in this case
to a search in a rural area on a holiday weekend night --
a place and time when magistrates will hardly be readily
available. If the possibility of impoundment is sufficient
to defeat the automobile exception, then the exception
has ceased to exist.
The court reached this retrogressive result in
explicit reliance on the Fourth Amendment, but without
any appropriate analysis. Instead, the court merely
referred to two Pennsylvania cases decided more than
two decades ago -- each purporting to apply federal
precedent -- for the false proposition that, where the
police, armed with probable cause, do not demonstrate
an exigency beyond the inherent mobility of the vehicle,
their failure to obtain a search invalidates their
automobile search. App. 5-7.~ The opinion below
> Commonwealth v. Cockfield, 431 Pa. 639, 644,
246 A.2d 381, 384 (1968), cited Chapman v. United
States, 365 U.S. 610 (1961). Commonwealth v. Linde,
448 Pa. 230, 293 A.2d 62, cert. denied, 409 U.S. 1031
(1972), cited Chambers v. Maroney, 399 U.S. 42 (1970)
and Coolidge vy. New Hampshire, 400 U.S. 814 (1971).
(continued...)
12
made no attempt to square its notion of federal
constitutional requirements with this Court's actual body
of law on the automobile exception.
As mentioned above, the Pennsylvania Supreme
Court's misreading of the “automobile exception" is not
an anomaly limited to this one case. Indeed, within
three days of the decision here, the court similarly
decided two other "automobile exception" cases. In both
Commonwealth v. Labron, 669 A.2d 917 (Pa. 1995),
and Commonwealth v. White, 669 A.2d 896 (Pa. 1995),
the court held, as it did here, that even though the police
had probable cause to search the vehicle in question,
their warrantless searches were improper under the
Fourth Amendment because the Commonwealth did not
demonstrate specific exigent circumstances, beyond
inherent mobility, that would justify the failure of the
police to obtain a warrant before searching the vehicle.
That burden of proof is not part of the Fourth
Amendment's “automobile exception” equation.
Because the Pennsylvania Supreme Court has so
fundamentally misinterpreted the "automobile exception”
and grafted onto it requirements that have been soundly
reyected by this Court, its incorrect decision below
should be reviewed and reversed.
5 ...continued )
The state court also referred to Commonwealth v.
Labron, one of the two other cases in the “automobile
exception” trilogy. Labron, too, rested on a Fourth
Amendment analysis.
13
CONCLUSION
For these reasons, petitioner respectfully requests
that a writ of certiorari issue to review the decision
below.
Respectfully subgnitted,
CH
H. STANLEY REBERT
District Attorney
CHRISTY H. FAWCETT
Chief Deputy Prosecutor
RONALD EISENBERG
Special Assistant District Attorney
(Counsel of Record)
JOAN WEINER
Special Assistant District Attorney
CATHERINE MARSHALL
Special Assistant District Attorney
York County District Attorney's Office
c/o Ronald Eisenberg, Esquire
1421 Arch Street
Philadelphia, Pa. 19102
(215) 686-5700
DATE: April 23, 1996
14
APPENDIX
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF
PENNSYLVANIA,
Appellee
RANDY LEE KILGORE,
Appellant
: No. 39 M.D. Appeal
: Docket 1995
: Appeal from the Order
: of the Superior Court at
‘ No. 286 Harrisburg
1993, entered November
: 23, 1994, affirming the
: Order of the Court of
: Common Pleas of York
: County, Criminal
: Division, at No. 2801
: CA 1991, entered
: March 1, 1993.
: 437 Pa. Super. 491,
: 650 A.2d 462 (1994)
: SUBMITTED:
: AUGUST 2, 1995
OPINION
NIX, C.J.
DECIDED:
DECEMBER 26, 1995
On July 15, 1992, Appellant, Randy Lee Kilgore
("Appellant"), was convicted by a jury of possession of
a controlled substance with intent to deliver and delivery
App. |
of a controlled substance.! Appellant filed post-trial
motions alleging, inter alia, that the court erred in failing
to suppress evidence of cocaine found in his vehicle dur-
ing a warrantless, nonconsensual search. The trial court
denied Appellant’s post-trial motions. On appeal, the
Superior Court affirmed the judgment of sentence. We
granted allowance of appeal to review the propriety of
the warrantless search of Appellant’s vehicle. For the
reasons that follow, we reverse.
Appellant’s arrest resulted from an undercover
operation in which police utilized an informant, Scott
Winter ("Winter"), to act as an intermediary in a drug
transaction. At or about 7:00 p.m. on July 6, 1991,
Winter and Appellant’s former wife, Kelly Jo Kilgore
("Kilgore"), met in the parking lot of the Brogue
_ General Store in Chanceford Township, York County.
There, Winter informed Kilgore that he had a buyer at a
nearby location who was interested in purchasing an
ounce of cocaine. Winter indicated that if the buyer
were satisfied with the quality of this cocaine, Winter
would purchase an additional three and one-half ounces
on his behalf. Winter then gave Kilgore $1,300 from
funds supplied by police, and Kilgore got back in her
car and drove away in order to get the ounce of cocaine.
Kilgore drove to the farm residence of her father
where she met with Appellant. A surveillance officer
who had been following in an unmarked car observed
Kilgore and Appellant walk toward a pickup truck that
was parked in the driveway. The officer lost sight of
the two suspects as he drove past the residence in order
to turn his vehicle around without being seen. When he
returned, he saw Appellant and Kilgore walking away
135 Pa.C.S. § 780-113(a)(30).
App. 2
from the truck. Kilgore then got into her car and
returned to the parking lot of the Brogue General Store
where she gave Winter approximately one ounce of
cocaine. Immediately after the transaction, police
moved in and arrested Kilgore. A search of her person
uncovered a small quantity of cocaine and related para-
phernalia; however, Kilgore did not have the $1,300 nor
did she have the additional three and one-half ounces of
cocaine.
When police arrived at the residence of Kilgore’s
father, one of the troopers went to the back door. Upon
seeing someone run from the kitchen, the trooper
announced the presence of the police and entered. He
found Appellant in the living room and placed him in
custody. The premises were then searched with the
_ consent of Kilgore’s father; however, police failed to
recover the additional cocaine or the $1,300 paid to
Kilgore. }
The search then turned to Appellant’s truck
which was parked at the rear of the residence. Without
a warrant or Appellant’s consent, police entered the
vehicle and found a McDonald’s beverage cup on the
floor of the passenger’s side. Inside the cup were
napkins and wrappers which covered several small bags
containing approximately three and one-half ounces of
cocaine. As a result of this discovery, Appellant was
placed under arrest. He later told police that he had hid
the missing money under the living room carpet. A sub-
sequent search of that location uncovered $2,100, which
included the $1,300 in prerecorded bills that Winter had
given to Kilgore.
Prior to trial, Appellant sought to suppress the
cocaine that was discovered in his truck. The suppres-
sion court denied the motion holding that
App. 3
the police had probable cause to believe,
based on the interaction between [Kilgore]
and [Appellant] as witnessed by the sur-
veillance officer, that [Appellant] was
involved with the drug transaction. The
officers had probable cause to believe that
[Appellant] was transporting drugs for
Kelly Kilgore for the purpose of the sale,
which occurred at the Brogue store.
Commonwealth v. Kilgore, No.2081 C.A.1991, slip op.
at 4-5 (C.P. York County Mar. 1, 1993).
On appeal, the Superior Court affirmed the lower
court’s denial of the suppression motion. Common-
wealth v. Kilgore, 437 Pa. Super. 491, 650 A.2d 462
(1994). Like the suppression court, the Superior Court
reasoned that police had probable cause to believe that
cocaine was present in Appellant’s vehicle based on the
observations of the surveillance officer who saw Appel-
lant and Kilgore walking to and from Appellant’s vehi-
cle without having entered the residence. Id. at 497-98,
650 A.2d at 465. Thus, the court believed that when the
search of the residence failed to uncover the missing
money and cocaine, the police had probable cause to
believe that those items were in Appellant's vehicle. Id.
Although we agree that the facts as presented to the sup-
pression court would lead one to intuitively deduce that
the cocaine and money were present in Appellant’s vehi-
cle, we are unpersuaded that a warrantless search of the
vehicle was justified under the circumstances of this
case.
It is well established that our stan-
dard of review in addressing a challenge
to a trial court’s denial of a suppression
motion is whether the factual findings are
App. 4
oe" Apwaerk:®
supported by the record and whether the
legal conclusions drawn from those facts
are correct.
Commonwealth v. Morris, 537 Pa. 417, 420, 644 A.2d
721, 723, petition denied, US. _,130L. Ed. 2d
519 (1994) (citation omitted). A review of the record in
the instant matter fails to disclose any of the recognized
exceptions to the search warrant requirement that would
justify the search of Appellant’s truck.
In Commonwealth v. Cockfield, 431 Pa. 639,
246 A.2d 381 (1968), this Court addressed the legality
of a warrantless search of an automobile conducted
under circumstances quite similar to those presented in
the instant case. In holding that the search of the
defendant’s vehicle was unreasonable under the Fourth
Amendment, we stated:
Certainly a search without a warrant is
not reasonable simply because the officers
have probable cause to believe that
incriminating evidence will be disclosea.
If this constituted "exigent circumstances,"
it would be almost impossible to think of
a case in which a warrant would be neces-
sary. And certainly an automobile is not
per se unprotected by the warrant proce-
dure of the Fourth Amendment. Although
it sometimes may be reasonable to search
a movable vehicle without a warrant, the
movability of the area to be searched is
not alone a sufficiently “exigent circum-
stance” to justify a warrantless search.
Other circumstances, for instance a seri-
ous possibility that the movable vehicle
App. 5
may, in fact, be ‘moved before a warrant
can be obtained, are necessary.
Id. at 644, 246 A.2d at 384 (citations omitted). Thus,
because the defendant was in police custody at the time
of the search and because there was no legitimate reason
to believe that the car would be moved, we held that the
failure of the police to obtain a search warrant neces-
sitated the exclusion of the evidence derived from that
search. Id. at 644-45, 246 A.2d at 384.
Likewise, in Commonwealth v. Linde, 448 Pa.
230, 293 A.2d 62, cert. dismissed, 409 U.S. 1031, 34 L.
Ed. 2d 482 (1972), this Court also found that a war-
rantless search of a vehicle was unreasonable where no
exigent circumstances were present. In Linde, the
defendant shot his estranged lover five times and then
turned the gun on himself. The victim died instantly,
and the defendant was transported by ambulance to a
nearby hospital. A police officer went to the hospital to
obtain the keys to the defendant’s vehicle which was
parked at a service station near the scene of the murder.
A subsequent search of the vehicle uncovered a note-
book of highly incriminating writings authored by the
defendant. The writings were introduced against the
defendant at trial.
In analyzing the reasonableness of the warrantless
search of the defendant’s vehicle, this Court again set
forth the analysis necessary to justify such a search.
[A] dual inquiry, both parts requiring
affirmative answers must be made: first,
whether there existed probable cause to
search; and secondly, whether exigent
circumstances can be found to excuse the
obtaining of a warrant.
App. 6
Id. at 233, 293 A.2d at 63-64. These principles were
recently reaffirmed by this Court in Commonwealth v.
Labron, Pa. _, A.2d __ (1995), wherein we
held that
this Commonwealth’s jurisprudence of the
automobile exception has long required
both the existence of probable cause and
the presence of exigent circumstances to
justify a warrantless search. Furthermore,
we have consistently recognized that when
police have advance information that a
particular vehicle carrying evidence of a
crime would be situated at a particular
locale, such that sufficient time exists to
obtain a warrant, the failure of the police
to secure a warrant prior to searching the
vehicle will render the search
unreasonable.
Id. at, A.2dat (emphasis added).
In the instant case, there is ample evidence in the
record to support the suppression court’s finding that
police had probable cause to believe that the cocaine and
money were in Appellant’s vehicle; however, we are
unable to ascertain the presence of any exigent circum-
stances which would justify the failure of police to
obtain a search warrant prior to searching the vehicle.
The record discloses that at least three of the
officers involved in the undercover investigation were at
the residence of Appellant’s father-in-law at the time of
the search of Appellant’s vehicle. The police had
Appellant in custody while they conducted a consensual
search of the residence. Appellant’s vehicle was parked
outside at the rear of the residence. Clearly, one of the
App. 7
officers could have secured the vehicle while a search
warrant was obtained. The Commonwealth has failed to
meet its burden of establishing that exigent circum-
stances existed such that it would have been imprac-
ticable for police to have obtained a search warrant
under the circumstances presented herein. See
Pa.R.Crim.P 323(h) ("The Commonwealth shall have the
burden of going forward with the evidence and of
establishing that the challenged evidence was not
obtained in violation of the defendant’s rights.").
Accordingly, we are constrained to conclude that the
search of Appellant’s vehicle was conducted in a manner
which violated his rights under the Fourth Amendment,
and thus, the fruits of that warrantless search should
have been suppressed.
Order reversed.
Mr. Justice Castille files a dissenting opinion.
Mr. Justice Montemuro, who participates by
designation as a senior judge as provided by Rule of
Judicial Administration 701 (f), concurs in the result.
JUDGMENT ENTERED:
JANUARY 24, 1996
/s/
JOAN L. STEHULAK, ESQUIRE
DEPUTY PROTHONOTARY
App. 8
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH O! No. 39 M.D. Appeal
PENNSYLVANIA, Docket 1995
Appellee,
Appeal trom the order
of the Superior Court
at No. 286 HBG 93,
entered November 23,
1994, affirming the
Order of the Court of
\ Common Pleas of York
County, Criminal
Division, at No. 280]
CA 1991, entered
March |, 1983
437 Pa. Super. 491,
650 A.2d 462 (1994)
RANDY LEE KILGORE. SUBMITTED
Appellant August 2, 1995
DISSENTING OPINION
DECIDED:
DECEMBER 26, 1995
MR. JUSTICE CASTILLE
[he majority holds that although probable cause
existed to search appellant's car, the cocaine and money
found in appellant's car must be suppressed because
appellant was in custody and police could have guarded
the car until they were able to secure a warrant to search
it. I believe that such a ruling ignores the circumstances
App. 9
of the search as well as the impact that such a ruling
makes upon the limited resources of police. Accord-
ingly, because I believe the majority's holding all but
eviscerates the automobile exception to search warrant
requirements, | must dissent.
It is well established that a warrantless search of
an automobile does not offend the Fourth Amendment
where, inter alia, there is probable cause to search the
vehicle and where exigent circumstances exist. Com-
monwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346,
1349 (1985) (citations omitted); Commonwealth v.
Holzer, 480 Pa. 93, 389 A.2d 101 (1978) (the realities
and practicalities of law enforcement dictate that where
exigent circumstances exist, the warrant requirement is
excused) (citation omitted); Commonwealth v. Lewis,
442 Pa. 98, 100, 275 A.2d 51, 52 (1971) (warrantless
search is proper where probable cause exists to believe
evidence of a crime is concealed in the vehicle). This
“automobile exception" to the warrant requirement was
recognized as a result of the reduced expectation of
privacy a person has with respect to his or her auto-
mobile, the exigency created by the mobility of a car,
and that due to the exigency it would be unlikely that
the vehicle would be available by the time police were
able to obtain a warrant. Commonwealth vy. Smith, 452
Pa. 1, 5, 304 A.2d 456, 458 (1973), cert. denied, 414
U.S. 1076 (1973), citing Chambers v. Maroney, 399
U.S. 42, 51 (1973). In finding that the automobile
exception does not apply to the search at issue, the
majority has essentially eviscerated the entire automobile
exception since it now holds that if a police officer can
be made available to guard the car while another officer
obtains a warrant, then there is no exigency because it is
no longer unlikely that the police guarded vehicle will
be unavailable by the time a warrant was obtained.
App. 10
Ignoring the time it may take for police to: return to
their headquarters, type up an affidavit, obtain approval
of the affidavit from the local District Attorney's office
(if required), locate a neutral and detached magistrate to
approve the warrant, have the warrant approved (assum-
ing no changes are needed), and possibly round-up addi-
tional back-up, the majority has now imposed a duty
upon police to idly watch over a car until a warrant is
obtained, whenever that time might be. One of the
purposes behind the automobile exception was to
prevent this type of drain on law enforcement. See
United States v. Chadwick, 433 U.S. 1 (1977), accord
Co Ww v. , 491 Pa. 32, 38, 417 A.2d
620, 623 (1980) (the basis for allowing warrantless
searches of automobiles is based upon the inherent
mobility of vehicles, the consequent practical problems
of obtaining a warrant prior to infringing a legitimate
expectation of privacy, and the diminished expectation
of privacy which is accorded automobiles because of
their open construction, their function, and their
subjection to a myriad of state regulations).
Moreover, policy considerations also support the
police officers’ immediate warrantless search of the
vehicle as opposed to requiring some officers to remain
at the scene, securing the vehicle, while other officers
seek out a search warrant. Requiring a number of police
officers to remain with a suspect and a vehicle for an
indefinite and uncertain amount of time will exhaust the
limited resources of law enforcement and further ignores
the realities attendant to the demands placed on law
enforcement in modern society. Under such circum-
stances, the officers who secure the vehicle will not be
available to respond to any other police emergencies.
Many automobile investigations occur after regular hours
and where, as here, the incident occurs in a rural area,
procurement of a search warrant could take hours
App. Il
depending on the distance from the nearest magistrate
and the location of the impoundment of the vehicle.
As stated by this Court in Commonwealth v. Mil-
yak, 508 Pa. at 9-10, 493 A.2d at 1349, immobilization
of a vehicle until a search warrant is obtained is merely
an alternative to an immediate warrantless search of a
vehicle, not a requirement as the majority holds. See
Chambers v. Maroney, 399 U.S. 42, 52 (1970) (there is
no difference between seizing and holding a vehicle
before presenting the probable cause issue to a magis-
trate and carrying out an immediate search without a
warrant; thus, given probable cause to search, either
course is reasonable under the Fourth Amendment);
Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d
1381, 1383 (1988), overruled in part by Commonwealth
vy. Rosario, _ Pa __, 648 A.2d 1172 (1994). Thus,
as a matter of federal and state case law, the police
officers here were not required to secure or immobilize
the vehicle until a search warrant was obtained.
Both Commonwealth v. Cockfield, 431 Pa. 639,
246 A.2d 381 (1968) and Commonwealth v. Linde, 448
Pa. 230, 293 A.2d 62 (1972), cert. dismissed, 409 U.S.
1031 (1972), upon which the majority rely, are readily
distinguishable from the instant case. In Cockfield,
police officers were patrolling a neighborhood on April
7, 1960, at approximately 2:30 a.m., when they discov-
ered a house fire. When firemen gained entry into the
home, the dead bodies of a woman and her two young
children were found. Police and fire officials detected a
strong odor of gasoline or kerosene on the premises.
At approximately 3:40 a.m., two detectives who
were investigating the fire spoke with a neighbor of the
victims. The neighbor informed them that the deceased
woman had a relationship with a man who was later
App. 12
determined to be Cockfield. The woman said that the
couple's relationship had been strained and that
Cockfield assaulted the woman with a knife approxi-
mately one month prior to the fire. The neighbor also
informed the police that Cockfield drove a 1953 or 1954
Dodge or Plymouth car with a bluish top and dirty white
or gray at the bottom. Shortly after 5 a.m., the detec-
tives and two other officials went to the neighborhood
where Cockfield was believed to live. A neighborhood
resident directed the officials to Cockfield’s house. The
officers rang Cockfield’s doorbell and knocked on the
door but no one responded.
The officers then walked through the general area
to see if there was an automobile which matched the
description given to them. A car fitting the description
was parked approximately three-fourths of a block away.
The officers felt the hood of the car and it was quite
warm indicating that the motor had recently been oper-
ating. One of officers took the license plate number to
ascertain the identity of the registered owner. However,
within minutes, the officer returned to the location of the
vehicle with the deceased woman's sister who told the
police that the vehicle belonged to Cockfield. The
police then opened the trunk of the car, which smelled
of gasoline, and discovered a two gallon empty can
marked "Gulf" and a roll of charred toilet paper. The
officers maintained surveillance of the automobile until
approximately 8 a.m., however, Cockfield never
appeared. Consequently, the police towed the auto-
mobile to a nearby police station where it was parked
and disabled by removing the distributor and disconnect-
ing certain electrical wiring. Later that day, Cockfield
discovered his automobile parked in front of the police
station. Cockfield went inside the station and inquired
as to why his vehicle was at the station. A duty officer
told Cockfield that he could take the car. Thus, Cock-
App. 13
field purchased and installed the necessary parts and
drove the car away.
On April 8, 1960, at approximately | a.m., police
took Cockfield into custody and questicned him regard-
ing the fire. On April 9, 1960, Cockfield signed an
inculpatory statement. Thereafter, police took Cock-
field’s automobile into custody a second time. After
Cockfield was arraigned, police officers unlocked the
trunk of the automobile and seized the gasoline can and
charred toilet paper which the Commonwealth intro-
duced as evidence at Cockfield’s trial.
This Court concluded that the evidence seized
from Cockfield’s vehicle must be suppressed because the
warrantless search of the vehicle was unreasonable under
the Fourth Amendment. This Court reasoned that since
Cockfield was in police custody at the time of the
search, there was no legitimate reason to believe that the
car would be or could be moved. Consequently, this
Court held that there were no exigent circumstances
which justified the warrantless search. Id. at 645, 246
A.2d at 384.
In Linde, police arrived at the defendant’s girl-
friend home and discovered that both Linde and his girl-
friend had been shot. The girlfriend died instantly as a
result of five gunshot wounds, however Linde survived
and was transferred to a hospital. The police located
Linde’s automobile which was parked at a service sta-
tion approximately 550 yards from his girlfriend’s home.
One police officer went to the hospital and obtained
Linde’s car keys from a hospital custodian. The officer
returned to the service station where officers unlocked
and searched the car. The officers found a notebook
containing five pages of handwritten incriminating state-
ments. Ten days later, the police went to the hospital
App. 14
Oe 25 4) NM ee
and presented the incriminating notes to Linde. After
acknowledging that he owned the notebook and that he
wrote the notes, Linde initialed each page. The Com-
monwealth introduced the writings as evidence against
Linde at trial.
This Court held that the writings seized from
Linde’s vehicle must be suppressed because even assum-
ing that the police had probable cause to search the
vehicle, the exigent circumstances required for a
warrantless search were clearly absent because the
vehicle was under constant police guard from the
moment it was located to the moment the police
searched it; the vehicle was locked, unoccupied, and the
police had possession of the keys; and because Linde
himself was in the hospital undergoing emergency
surgery and therefore, there was no danger he would
move the car.
Clearly, Cockfield and Linde both involved
searches of vehicles which had been in police custody
and which police had immobilized for several hours
prior to conducting a search. Consequently, in those
cases, unlike the instant case, the police had ample
Opportunity to procure a search warrant. Here, police
conducted the search at issue only after the police had
reason to believe that appellant was in possession of
additional cocaine and the prerecorded money. The car
was located on a third party’s property and was within
reach of appellant’s father who was present. Under
these circumstances, | would find that exigent circum-
stances existed. Commonwealth v. Milyak, supra at 7-8,
493 A.2d at 1349; Commonwealth v. Rodriguez, 526 Pa.
268, 585 A.2d 988 (1991) (probable cause and exigent
circumstances existed where reliable confidential
informant supplied police with information regarding
appellant's illegal activities, where informant told police
App. 15
that appellant would be at a certain location, on a certain
date and that appellant would be selling drugs; more-
over, since police did not know appellant would be
travelling in that specific vehicle on the date in question
until they saw appellant driving, the warrantless search
of defendant’s vehicle was valid); Commonwealth v.
Baker, supra (warrantless search of vehicle proper where
police received information from a reliable informant
that defendant assaulted an individual! in an alley with a
gun and that the defendant exited the scene in a partic-
ular automobile and within minutes of the informant’s
information, police located that automobile and placed
defendant under a brief period of surveillance and
stopped defendant only when he attempted to drive
away).
Accordingly, | would affirm the order of the
Superior Court.
App. 16
|
° so er
COMMONWEALTH OF ~ _: IN THE SUPERIOR
PENNSYLVANIA : COURT OF PENNSYL-
: VANIA
Vv.
RANDY LEE KILGORE, =: No. 286 Harrisburg,
Appellant : 1992
Appeal from Judgment of Sentence of the
Court of Common Pleas, Criminal Divi-
sion, of York County, No. 2081 C.A.
1991.
BEFORE: WIEAND, SAYLOR and
CERCONE, JJ.
FILED Nov 23 1994
OPINION BY WIEAND, J.:
Randy Lee Kilgore was tried by jury and was
found guilty of delivery of cocaine and possession of
cocaine with intent to deliver. Post-trial motions were
denied, and Kilgore was sentenced to serve concurrent
terms of imprisonment for not less than four years nor
more than eight years. On direct appeal from the judg-
ment of sentence, Kilgore challenges trial and pre-trial
rulings made by the trial court.
With the aid of Scott Winter, a suspect in
another criminal matter, arrangements were made by
state police to purchase from Kelly Jo Kilgore, the
former wife of the defendant, Randy Lee Kilgore, an
"eighth kilo" (approximately four and one-half ounces)
of cocaine in the parking lot of the Brogue General
Store in Chanceford Township, York County, on July 6,
1991. At or about 7:00 p.m. on that date, Winter and
App. 17
Kelly met in the parking lot, where Winter informed
Kelly that he had a buyer waiting "up the road" and
wanted an ounce of cocaine. The "buyer" wanted to
examine this cocaine, he said and, if he were satisfied,
Winter would buy an additional three and one-half
ounces on his behalf. Winter then paid Kelly the sum
of $1,300.00 from funds which had been supplied by the
police, and Kelly got back in her car and drove away to
get the cocaine.
While under surveillance by police in an
unmarked car, Kelly drove to the home of her father,
approximately a mile away. There, she exited her car
and met her husband, Randy Kilgore. Both were
observed as they walked toward a pickup truck which
had been parked in the driveway. The surveilling
policeman then lost sight of the Kilgores as he passed
the home and turned his vehicle around out of sight of
the home. When he returned, he saw the Kilgores walk-
ing away from the truck. Kelly then got into her car
and returned to the Brogue General Store, where she
delivered approximately an ounce of cocaine to Winter.
He signalled the waiting police, who then moved in and
placed Kelly under arrest. A search of her person
produced a small quantity of cocaine and drug parapher-
nalia, but she did not have the $1,300.00 dollars which
Winter had paid to her or the additional cocaine which
Winter had expressed a desire to purchase.
Police then went to the home of Kelly’s father,
Otis Brown, where Trooper Kurt Voggenreiter went to
the back door. The back door was open, and through a
screen door he could see the interior of the kitchen.
When he saw someone run from the kitchen, he
announced the presence of police and entered. He found
Randy Kilgore in the living room and placed him in the
custody of other police personnel who had entered the
App. 18
F TT -
|
.
|
|
kitchen. With the consent of Otis Brown, the owner, the
premises were then searched, but neither cocaine nor the
money paid to Kelly Kilgore during the prior cocaine
transaction was discovered.
Without a warrant or consent of the owner, other
police conducted a search of Randy Kilgore’s truck,
which was parked at the rear of the residence. They
found several small bags of cocaine in a beverage cup
on the front floor of the truck. The cocaine was later
determined to weigh approximately three and one-half
ounces. Randy Kilgore was then arrested and placed in
the back of a police vehicle. He later told police that
the money they were seeking was under the living room
carpet. There they found $2,100.00, which included
$1,300.00 in pre-recorded bills which had been paid to
Kelly Kilgore.
The trial court refused to suppress the cocaine
found in Randy Kilgore’s truck, and this, it is argued on
appeal, was error. Our standard of review of this issue
was stated in Commonwealth v. Govens, 429 Pa.Super.
464, 632 A.2d 1316 (1993), as follows:
In conducting appellate review of the rul-
ing of the suppression court, this Court:
"must determine whether
the factual findings are
supported by the record.
When it is a defendant who
has appealed, we must con-
sider only the evidence of
the prosecution and so
much of the evidence for
the defense as, fairly read
in the context of the record
App. 19
as a whole, remains uncon-
tradicted. Assuming that
there is support in the
record, we are bound by
the facts as are found and
we may reverse the sup-
pression court only if the
legal conclusions drawn
from those facts are in
error.’
Commonwealth v. Whitney, 511 Pa. 232,
239-240, 512 A.2d 1152, 1156 (1986),
quoting Commonwealth v. Cortez, 507
Pa. 529, 532, 491 A.2d 111, 112 (1985),
cert. denied, 474 U.S. 950, 106 S.Ct. 349,
88 L.Ed.2d 297 (1985). See also: Com-
monwealth v. O’Shea, 523 Pa. 384, 395,
567 A.2d 1023, 1028 (1989), cert. denied,
__ US. __, 111 S.Ct. 225, 112 L.Ed.2d
180 (1990); Commonwealth v. Hughes,
521 Pa. 423, 438-439, 555 A.2d 1264,
1271-1272 (1989).
Id. at 473, 632 A.2d at 1320.
With respect to searches of motor vehicles, the
Pennsylvania Supreme Court has said, in Commonwealth
v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985), the fol-
lowing:
While searches and seizures conducted
outside the judicial process, without prior
approval by a magistrate, are generally
unreasonable under the Fourth Amend-
ment, Katz v. United States, 389 U.S.
347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d
App. 20
Eee Se ae
576, 585 (1967); Mincey v. Arizona, 437
U.S. 385, 390, 98 S.Ct. 2408, 2412, 57
L.Ed.2d 290 (1978), there is an estab-
lished departure from the warrant require-
ment for certain automobile searches
based on the inherent mobility of vehi-
cles, with the consequent practical
problems in obtaining a warrant prior to
infringing a legitimate expectation of
privacy, and on the "diminished expecta-
tion of privacy which is accorded auto-
mobiles because of their open construc-
tion, their function, and their subjection to
a myriad of state regulations." Common-
wealth v. Timko, 491 Pa. 32, 38, 417
A.2d 620, 623 (1980) citing United States
v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476,
53 L.Ed.2d 538 (1977); see also, South
Dakota v. Opperman, 428 U.S. 364, 367,
96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000
(1976); Commonwealth v. Mangini, 478
Pa. 147, 386 A.2d 482 (1979). Accord-
ingly, as stated by this Court in
Commonwealth v. Lewis, 442 Pa. 98, 275
A.2d 51 (1971):
To justify ... a [warrantless]
search ..., an officer must
have independent probable
cause to believe that a
felony has been committed
by the occupants of the
vehicle, or that it has been
used in the furtherance of
the commission of a felony,
or the officer must have a
basis for believing that
App. 21
evidence of a crime is con-
cealed within the vehicle,
or that there are weapons
therein which are accessible
to the occupants.
Id. at 101, 275 A.2d at 52; see also,
Commonwealth v. Shaffer, 447 Pa. 91,
288 A.2d 727 (1972) citing Chambers v.
Maroney, supra, Commonwealth v. Smith,
443 Pa. 151, 277 A.2d 807 (1971); Com-
monwealth v. Dussell, 439 Pa. 392, 266
A.2d 659 (1970) citing Dyke vy. Taylor
391 U.S.
Implement Manufacturing Co.,
216, 88 S.Ct. 1472, 20 L.Ed.2d 538
(1968). Thus, where there exists probable
cause related to the vehicle or its
occupants, a search of the vehicle | is
permissible.
Id. at 7-8, 493 A.2d at 1349. See also: United States v.
McGlory, 968 F.2d 309, 343 (3d Cir.1992); United
States v. Salmon, 944 F.2d 1106, 1123 (3d Cir. pe
cert. denied, Washington v. United States, __
112 S.Ct. 1213, 117 L.Ed.2d 451 (1992), ——
wealth v. Germann, 423 Pa.Super. 393, 398-399, 621
A.2d 589, 592 (1993).
"The level of probable cause necessary for a
warrantless search of an automobile is the same as that
needed to obtain a [search] warrant." Commonwealth v.
Talley, 430 Pa.Super. 351, 357, 634 A.2d 640, 643
(1993); Commonwealth v. Pleummer, 421 Pa.Super. 51,
56, 617 A.2d 718, 721 (1993), allocatur denied, _—s P.
__, 637 A.2d 282 (1993). In Commonwealth v, Rodri-
guez, 526 Pa. 268, 585 A.2d 988 (1991), the Pennsy!-
vania Supreme Court explained:
App. 22
In this Commonwealth, the stan-
dard for evaluating whether probable
cause exists is the “totality of the cir-
cumstances” test set forth in Lllinois vy,
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). See Commonwealth
v. Baker, 513 Pa. 23, 518 A.2d 802
(1986), Commonwealth v. Gray, 509 Pa.
476, 503 A.2d 921 (1985). The bench
mark of a warrantless arrest is the exis-
tence of probable cause, namely, whether
the facts and circumstances which are
within the knowledge of the officer at the
time of the arrest, and of which he has
reasonably trustworthy information, are
sufficient to warrant a man of reasonable
caution in the belief that the suspect has
committed or is committing a crime.
Commonwealth v. Wagner, 486 Pa. 548,
406 A.2d 1026 (1979). Applying that test
to the within case, the veracity and basis
of knowledge of those persons supplying
hearsay information must be examined to
determine whether there is a “fair prob-
ability that contraband or evidence of a
crime will be found in a particular place."
Commonwealth v. Baker, supra, 513 Pa.
at 26, 518 A.2d at 803.
ee Oe NO all ited! «a id ae eae Re, as RR A EES a PS et NE oe
Id. at 272-273, 585 A.2d at 990.
Once the requirement of probable cause is
satisfied, the exigencies regarding the
inherent mobility of a vehicle and inade-
quate time to obtain a search warrant
render a warrantless vehicle search proper
App. 23
even when the accused is in police cus-
tody.
Commonwealth v. Elliot, 416 Pa.Super. 499, 504, 611
A.2d 727, 729 (1992), allocatur denied, 534 Pa. 646,
627 A.2d 177 (1993). After probable cause exists, the
police are not required to watch over or immobilize a
vehicle while a search warrant is obtained. See:
Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d
1381, 1383-184 (1988); Commonwealth v. Camacho,
425 Pa.Super. 567, 578-580, 625 A.2d 1242, 1248-1249
(1993).
The suppression court found that police had
probable cause to search appellant's truck. The evidence
showed that Kelly Kilgore had left the parking lot of the
Brogue General Store to obtain cocaine and had been
followed. She entered her car and drove directly to her
father’s home where, without entering the home, she met
her husband. The two of them then walked toward the
truck. The following police car passed the home and for
a few minutes was out of sight of the truck. After the
police car was turned around and returned, however,
Kelly and Randy Kilgore were observed walking back
from the truck. Kelly then got into her car and drove
directly to the parking lot of the store, where she
delivered an ounce of cocaine to Scott Winter. Subse-
quently, when police searched the Brown home, they did
not find any cocaine, even though Kelly had assured
Scott Winter that she had an additional three and
one-half ounces of cocaine to sell.
Under these circumstances, we find no error in
the trial court’s finding that the police had probable
Cunmasnaette x, feces, 400 Pa Super. 580, 585 A.2d
App. 24
ss « oe
ee ee ee — 7
© peti eee ote
1078 (1991), allocatur denied, 528 Pa. 621, 597 A.2d
1151 (1991). Moreover, once police had probable cause
to search the vehicle, a search of closed containers in
that vehicle was also permissible. See: California v.
Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d
619 (1991); Commonwealth v. Elliot, supra; Common-
wealth v. Hoffman, 403 Pa.Super. 530, 589 A.2d 737
(1991), allocatur denied, 530 Pa. 652, 608 A.2d 28
(1992).
During direct examination, the Commonwealth
showed that its witness, Scott Winter, had previously
been convicted of forgery, of several burglaries and of
several thefts. Appellant also sought to show that
Winter had been convicted of arson, but the prosecution
asserted and the trial court found that Winter's arson
conviction was not crimen falsi. | Therefore, the trial
court excluded evidence that the witness had been con-
victed of arson. Appellant argues in this Court, as he did
in the trial court, that because arson is a felony, a con-
viction thereof is admissible to attack the credibility of a
witness.
In Commonwealth v. Randall, 515 Pa. 410, 528
A.2d 1326 (1987), the Supreme Court adopted the fol-
lowing rule:
[E}vidence of prior convictions can be
introduced for the purpose of impeaching
the credibility of a witness if the convic-
tion was for an offense involving dishon-
esty or false statement, and the date of
I The record forwarded to this Court does not permit
: -
us to make a determination of the circumstances which
led to Winter's conviction for arson.
App. 25
conviction or the last day of confinement
is within ten years of the trial date. If a
period greater than ten years has expired
the presiding judge must determine
whether the value of the evidence sub-
stantially outweighs its prejudicial effect.
Id. at 415, 528 A.2d at 1329. See: Commonwealth v.
Jackson, 526 Pa. 294, 585 A.2d 1001 (1991); Common-
wealth v. Walker, 384 Pa.Super. 562, 559 A.2d 579
(1989); Commonwealth v. Flis, 369 Pa.Super. 275, 535
A.2d 157 (1987), allocatur denied, 519 Pa. 659, 546
A.2d 620 (1988). See also: Packel and Poulin, Pennsy!-
vania Evidence, Ch. VI, § 609 (1987). Thus, it is now
established that a witness may be impeached on the
basis of a prior conviction only if the crime involves
dishonesty or false statement. Commonwealth v.
Mehalic, 382 Pa.Super. 264, 285, 555 A.2d 173, 183
(1989). “[A] witness may not be impeached on the
basis of convictions for crimes not involving dishonesty
or false statement." Commonwealth v. Williams, 524
Pa. 404, 407, 573 A.2d 536, 538 (1990). See also:
Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d
1154, 1160 (1982), cert. denied, 456 U.S. 980, 102 S.Ct.
2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Corley,
432 Pa.Super. 371, 379, 638 A.2d 985, 989 (1994).
Indeed, the Supreme Court has said that
the law regarding impeachment of a wit-
ness and impeachment of a defendant is
consistent in prohibiting impeachment
regarding prior arrests and prior convic-
tions for crimes not involving crimen
falsi.
Commonwealth v. Stokes, 532 Pa. 242, 256, 615 A.2d
704, 711 (1992).
App. 26
It follows that appellant's argument must fail.
Even a felony conviction is admissible to impeach the
credibility of a witness only if the crime involved
dishonesty or false statement. Because the record does
not enable us to determine whether the witness's arson
conyiction was based on a reckless act or a dishonest
act,~ we cannot say that the trial court erred when it
excluded evidence thereof to impeach the witness's
credibility.
Appellant's argument that the prosecution failed
to establish a chain of custody sufficient to permit the
cocaine to be received in evidence must also be rejected.
"Physical evidence may be admitted at trial without
demonstrating to an absolute certainty the precise chain
of custody." Commonwealth v. Culmer, 413 Pa.Super.
203, 217, 604 A.2d 1090, 1097 (1992).
Real evidence is sufficiently authenticated
if "evidence, direct or circumstantial,
establishes a reasonable inference that the
identity and condition of the exhibit
remained unimpaired until it was surren-
dered to the trial court.’
Commonwealth v. Schwartz, 419 Pa.Super. 251, 269,
615 A.2d 350, 359 (1992), allocatur denied, 535 Pa.
617, 629 A.2d 1379 (1993), quoting Commonwealth v.
Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).
In the instant case, there was no evidence sug-
gesting a break in the chain of custody of the cocaine
seized from appellant’s truck. Moreover and in any
event, "gaps in the chain of custody go to the weight to
2See: 18 PaCS. § 3301.
App. 27
be given to the testimony, not its admissibility." Com-
monwealth v. Bolden, 486 Pa. 383, 388-389, 406 A.2d
333, 335-336 (1979). Here, the jury could find that the
cocaine received at trial was the contraband removed
from appellant's truck. The trial court did not err when
it allowed this evidence to be admitted.
Finally, appellant contends that the trial court
erred when it permitted Kimberly Souder to testify as an
expert in analyzing and identifying the alleged contra-
band as cocaine. In Commonwealth v. McCloy, 393
Pa.Super. 217, 574 A.2d 86 (1990), allocatur denied,
527 Pa. 585, 588 A.2d 508 (1991), the Superior Court
reviewed the applicable law as follows:
To qualify as an expert witness, a witness
need only have a "reasonable pretension
to specialized knowledge," on a subject
for which expert testimony is admissible.
Commonwealth v. Washington, 235 Pa.
Super. 339, 340 A.2d 896 (1975). An
expert’s pretension to specialized knowl-
edge may be based upon practical, occu-
pational, or other experiential training;
the expert need not have gained expertise
through academic training. Common-
wealth v. Ellis, 354 Pa.Super. 11, 510
A.2d 1253 (1986); Commonwealth y.
Daniels, 280 Pa.Super. 278, 421 A.2d 721
(1980). The determination of whether a
witness is qualified to offer an expert
opinion on a particular subject is a matter
addressed to the sound discretion of the
trial court, and its discretion will not be
reversed absent a clear abuse of discre-
tion. Commonwealth v. Samuels, 354 Pa.
Super. 128, 511 A.2d 221 (1986);
App. 28
Commonwealth v. Ellis, supra; Common-
weaith v. Bulling, 331 Pa.Super. 84, 480
A.2d 254 (1984).
Id. at 220-221, 574 A.2d at 88, quoting Commonwealth
y. Pearsall, 368 Pa.Super. 327, 332, 534 A.2d 106, 109
(1987), allocatur denied, 524 Pa. 596, 568 A.2d 1246
(1989). See also: Commonwealth v. Snowdy, 412
Pa.Super. 493, 502-503, 603 A.2d 1044, 1048 (1992),
allocatur denied, 533 Pa. 633, 621 A.2d 580 (1993)
In the instant case, Souder testified that she had
been graduated from Pennsylvania State University witn
a B.S. in chemistry. Thereafter, she had undergone five
weeks of on-the-job training before she began working
for the Pennsylvania State Police. During this time
period, she had performed between fifty and one hun-
dred chemical analyses while under the direct supervi-
sion of another chemist. At the time of trial, Souder
had been employed by the State Police for approxi-
mately six months, during which time she had per-
formed approximately nine hundred additional chemical
analyses. Although she was still on probationary status,
all of her work performance reviews had been satisfac-
tory. She had previously qualified to testify as an expert
witness in both York and Dauphin Counties. Although
it is true that Souder did not possess a vast wealth of
forensic experience, it was sufficiently established that
she possessed a reasonable pretension to specific know|-
edge with regard to chemical testing of suspected illicit
drugs. We conclude, therefore, that the trial court did
not commit an abuse of discretion when it determined
that Souder was qualified to give expert testimony. See:
Commonwealth v. Echevarria, 394 Pa.Super. 261, 266-
267, 575 A.2d 620, 623 (1990).
App. 29
Finding no error in appellant’s trial, the judgment
of sentence must be affirmed.
Affirmed.
App. 30
IN THE COURT OF COMMON PLEAS
OF YORK COUNTY, PENNSYLVANIA
COMMONWEALTH OF — : No. 2081 C.A. 1991
PENNSYLVANIA
v. : Delivery of Drugs;
: Possession with Intent
RANDY LEE KILGORE _ : to Deliver; Conspiracy
APPEARANCES:
CHRISTY FAWCETT, ESQUIRE
Assistant District Attorney
for the Commonwealth
ALLEN H. SMITH, ESQUIRE
for Defendant
O ON
This matter comes before the Court on the post-
trial motions of defendant, Pandy Lee Kilgore, seeking
an arrest of judgment and in the alternative a new trial.
Defendant was convicted by jury trial of possession of
drugs with intent to deliver, and delivery of drugs on
July 15, 1992. Co-defendant, Kelly Kilgore, was con-
victed in the same trial of possession of drugs, posses-
sion of drugs with intent to deliver and delivery of
drugs. For the following reasons, defendant, Randy Lee
Kilgore’s post-trial motions will be refused and denied.
Defendant’s allegations of error are as follows:
1. Improper refusal to suppress evidence
of cocaine found in defendant’s vehicle in
App. 31
a plastic cup during warrantless,
non-consensual search;
2. Failure to dismiss charges based on
Pa.Crim.Proc. Rule 1100 violation;
3. Chain of custody broken for drugs
during period of July 8, 1991 until May
14, 1992;
4. Error in refusing to allow evidence of
prior conviction of non crimen falsi
felony (i.e. arson) to impeach a witness
other than a defendant;
5. Improper certification as expert wit-
ness of forensic chemist who analyzed
drugs after original chemist was on leave
for illness; ‘
6. Allegation that Commonwealth failed
to meet its burden of proof that drugs
analyzed by second chemist had not been
"altered, mixed, unadulterated” by original
chemist, who was unavailable for trial;
7. Failure to grant mistrial when
prosecutor referred to defenses of
defendant as "smoke screen."
The factual background surrounds the arranged
sale and delivery of over 125 grams of cocaine by co-
defendant Kelly Kilgore to undercover drug officers.
The pre-arranged "buy" occurred at the Brogue Store
when Kelly Kilgore received $1,300.00 from the infor- _
mant in exchange for a sample of approximately | ounce
of the cocaine. After the money was transferred, Kelly
App. 32
Kilgore drove to the farm residence of her father where
she met with the defendant.
Before returning to the store, where she made the
drug transfer, a surveillance officer observed Kelly
Kilgore drive down the farm lane, get out of her vehicle,
meet defendant and walk toward the defendant's truck
which was parked in the driveway. The defendant and
co-defendant met and then co-defendant, Kelly Kilgore,
returned to her car and drove back to the Brogue store
where the transaction occurred. Upon return to the
farm, after the transaction and arrest of Kelly Kilgore,
defendant Randy Kilgore was inside the residence.
Kelly Kilgore’s father gave consent for the search of the
premise.
Defendant first argues that the Court erred
through improper refusal to suppress evidence of cocaine
found in defendant’s vehicle in a plastic cup during war-
rantless, non-consensual search. The defendant argues
that the momentary liaison between the co-defendant and
defendant was not within the defendant’s vehicle, only
within the vicinity. Defendant alleges a lack of probable
cause to search the truck, and a lack of exigent circum-
stances which would require a warrantless search
thereof. The drugs were not in plain view, but rather
were hidden in a fast-food beverage cup with a lid on it.
Defendant maintains that he was not the subject of the
arrest when the search occurred, and accordingly, under
the authority of New York v. Belton, 453 U.S. 454
(1981), the fruits of such search must be suppressed.
In its Order of October 1, 1991, this Court
determined that there was probable cause to believe that
there was a balance of cocaine left in the vicinity of
where the delivery was made to Kelly Kilgore.
App. 33
While searches and seizures conducted
outside the judicial process, without prior
approval by a magistrate, are generally
unreasonable under the Fourth Amend-
ment, (cites omitted), there is an estab-
lished departure from the warrant require-
ment for certain automobile searches
based on the mobility of vehicles, with
the consequent practical problems in
obtaining a warrant prior to infringing a
legitimate expectation of privacy, and on
the ‘diminished expectation of privacy
which is accorded automobiles because of
their open construction, their function,
and their subjection to a myriad of state
regulations.’ (cites omitted). Accord-
ingly, as stated by this Court in Common-
wealth v. Lewis, 442 Pa. 98, 275 A.2d 51
(1971): To justify ... a [warrantless]
search ..., an officer must have indepen-
dent probable cause to believe that a
felony has been committed by the occu-
pants of the vehicle, or that it has been
used in the furtherance of the commission
of a felony, or the officer must have a
basis for believing that evidence of a
crime is concealed within the vehicle, or
that there are weapons therein which are
accessible to the occupants. (cites
omitted).
Com. v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346 (1985).
Under this standard, the police had probable
cause to believe, based on the interaction between the
co-defendant and defendant as witnessed by the surveil-
lance officer, that the defendant was involved with the
App. 34
drug transaction. The officers had probable cause to
believe that the defendant was transporting drugs for
Kelly Kilgore for the purpose of the sale, which
occurred at the Brogue store. Accordingly, the police
acted within the law when they searched the truck. We
determine that under the totality of the circumstances,
probable cause existed for the warrantless search of
defendant Kilgore’s vehicle and deny any allegation of
error.
Next, defendant argues that Pennsylvania Rule of
Criminal Procedure Rule 1100 requires the dismissal of
all charges against defendant. Defendant was arrested
and charged with the crimes on July 6, 1991, a prelimi-
nary hearing was held on July 22, 1991, and arraignment
was completed on August 23, 1991. A suppression
motion was filed September 9, 1991 and refused after
hearing on October 1, 1991. The Court’s time was
taken on other matters so that the motion could not be
heard until over three weeks after the motion was filed.
Under the authority of Com. v. Chilcote, 396 Pa.Super
106, 112-113, 578 A.2d 429 (1990), we determine that
the period of delay involved in the motion to suppress
and this Court’s ruling should be charged against the
defendant and is properly excluded from the computa-
tion of the 180-day period under Rule 1100. With the
exclusion of these days, the commencement of trial was
timely.
Because of the determination that the trial was
commenced within the mandates required under Rule
1100, we determine that defendant’s due diligence
argument is moot.
Next, defendant argues that no chain of custody
of the drugs was established for the period of July 8,
1991 until May 14, 1992. The record reveals that
App. 35
Detective Voggenreiter, as evidence officer, received the
drugs on July 6, 1991, and secured them in his locked
trunk until Monday, July 8, 1991 when he delivered
them to the state police crime lab. The drugs remained
there until just prior to trial when Trooper Corbett
picked them up from the state police crime lab, using
the regular procedures for such transfer of evidence.
The evidence was then delivered by Trooper Corbett to
Trooper George and secured in the District Attorney's
Office safe, until the time of trial. The defense objects,
not to the transfers of the substances, but rather to the
chain of custody at the state police crime lab. The
original analysis of the evidence was performed on
August 12, 1991, by a chemist who subsequently had a
heart attack which required an extended medical leave of
absence. The Commonwealth represented to the Court
that the first chemist, Prasad Dasgupta, was still
unavailable at the time of trial. No testimony was
presented regarding the results of the first chemist’s
analysis. The Court took notice that the illness of
Dasgupta was corroborated through other judicial
matters.
The subsequent analysis was performed on June
3, 1992, by a chemist who testified that she took the
evidence from the evidence vault which is kept secure,
and returned it back into the vault at the conclusion of
her analysis. The second chemist identified the evidence
as cocaine and testified in detail with respect to the
analysis procedures and supervision. Defense maintains
that Dasgupta was not unavailable at the time of trial to
testify to the condition of the drugs at the time of his
analysis. Although the original chemist did return to the
state laboratory before the end of his medical leave, the
record reveals that his visit was of very short duration
and social in nature.
App. 36
Defendant alleges that Detective Voggenreiter
obtained the alleged drugs on July 6, 1991, and deliv-
ered them to the Harrisburg Crime Laboratory on July 8,
1991. When Detective Voggenreiter next saw the evi-
dence on July 13, 1992, the evidence was packed differ-
ently. On July 6, 1991, the contents were in plastic
baggies. On July 13, 1992, the contents were in heat
sealed plastic bags. Physical evidence may be admitted
at trial without demonstrating an absolute chain of
custody. Com. v.Culmer, _ Pa.Super. _—, 604 A.2d
1090, 1097 (1992). Gaps in the chain of custody go to
the weight to be given the testimony, not to its
admissibility. Com. v. Bolden, 486 Pa. 383, 389, 406
A.2d 333 (1979).
The Commonwealth must establish a reasonable
inference that the identity and condition of the evidence
has remained the same from the time it was first
received until the time of trial. Com. v. Miller, 234
Pa.Super. 146, 339 A.2d 573 (1975). The chain of cus-
tody of the drugs as testified to by the second chemist
was that she followed the procedure at the Pennsylvania
State Crime Lab which was to remove the evidence
from the secure vault for the purposes of the analysis,
and to return it to the secure vault at the completion of
her analysis.
Additionally, much attention was given to the
chain of custody in defense counsel's closing arguments,
stressing that the jury be absolutely convinced about the
qualifications of the chemist and the condition of the
drugs in order to convict the defendants. Given the
totality of the testimony, argument and evidence, we
determine that the jury could reasonably conclude that
the condition of the evidence remained the same from
the time it was first received until the time of trial.
App. 37
Next, the defense maintains that the Court erred
when it ruled that Scott Winters, a witness for the
Commonwealth, could not be impeached for felonies of
which he was convicted and sentenced unless the felo-
nies were of a crimen falsi nature. In this case, Scott
Winters assisted the Commonwealth in setting up the
drug raid by arranging a buy from Kelly Kilgore.
Under cross-examination, an effort was made to elicit
Winters’ prior conviction for felonies not of a crimen
falsi nature, specifically arson, disorderly conduct and
underage drinking. The Court determined that the prior
offenses were not relevant to the witness’s veracity and
accordingly, were inadmissible. See, Com. v. Yost, 478
Pa. 327, 386 A.2d 956 (1978).
Defense argues that a distinction is made between
the admissibility of prior records of defendants and wit-
nesses for impeachment purposes. Defense agrees that
prior convictions for felonies not involving crimen falsi
crimes may not be used to impeach a defendant; but
defense maintains that prior convictions for felonies not
involving crimen falsi crimes may be used to impeach
one other than a defendant. Defense contends that Com.
v. Eubanks, 511 Pa. 201, 512 A.2d 619 (1986) clearly
draws a distinction between the rule for defendants and
the rule for witnesses. The Court in Eubanks, supra.,
determined that the exclusion of evidence of a prior
homicide conviction by the witness, which reference to
was critical to the defendant's defense, was reversible
error.
We find no probative value to the revelations
concerning arson, disorderly conduct and underage
drinking convictions of Winters. The prior record of the
witness in the case sub judice can be distinguished from
the Eubanks, supra., witness because the prior convic-
tions of Winters are unrelated to the present litigation.
App. 38
We determine, that given the totality of the tes-
timony concerning Winters, his status as a corrupt wit-
ness was quite evident to the jury. The record reveals
that Mr. Winter's plea agreement was made known, as
well as substantial argument with respect to his potential
motive to testify against the defendants. One Common-
wealth witness explained to the jury, with respect to
Winters, that they “can't use a swan to do a rat’s job.”
Accordingly, the Court will deny this point of error.
Next, defense alleges Court error through admis-
sion of the testimony of Kimberly Lynn Sauder, forensic
scientist, when she had no courses in forensic chemistry,
was still on a probationary status with the Pennsylvania
State Crime Laboratory, and there was testimony that
her supervisor did not work with her on a day-to-day
basis. Defense maintains that the Commonwealth
needed to show that she did her tests twice or that
another verified her tests and results.
Ms. Sauder was qualified as an expert witness for
the Commonwealth based on the evidence presented that
she held a Bachelors of Science Degree in Chemistry
from Penn State University, was given on-the-job train-
ing and was supervised. Although she was technically
still on probation, she was permitted to work by herself
and was supervised. She testified that all of her reviews
had been satisfactory. She had additional work experi-
ence, and has been qualified as an expert in several
other counties. Accordingly, we find no error in the
admission of her testimony as an expert witness.
The next point of alleged error is that although
the Commonwealth acknowledged that the alleged con-
traband had been tested by Prasad Dasgupta, it failed to
show that the contraband tested by Dasgupta had not
been altered, mixed, adulterated and that what Kimberly
App. 39
Sauder tested was in fact that which the Commonwealth
seized on July 6, 1991. We incorporate by reference our
decision concerning the validity of the chain of custody
of the drugs as stated above, and determine that the
Court committed no error with its admission.
Finally, the defense alleges that the Common-
wealth committed reversible error when it described, in
its closing argument, the defense argument as a "smoke
screen.” The immediate objection to this characteriza-
tion was addressed by the Court with a curative instruc-
tion to the jury to disregard any reference to a "smoke
screen” and to make its own decision with respect to the
defense based upon the facts as presented.
A mistrial is not mandated by every trial error.
A mistrial is necessary only when the incident upon
which the motion is based is of such a nature as to deny
the defendant a fair trial. Com. v. Cannady, 404
Pa.Super. 215, 591 A.2d 356, 360 (1991). A mistrial is
not necessary where cautionary instructions were ade-
quate to overcome any prejudice. Com. v. Lawson, 519
Pa. 175, 185, 546 A.2d 589, 594 (1988).
Additionally, the totality of the Court’s charge on
the proper role of the jury to assess the facts which sup-
port their conclusions adequately covers those issues
which are clearly the province of the jury. Accordingly,
we find no error in the Court's refusal to grant a mistrial
for the above stated reasons.
Accordingly, we will deny defendant, Randy Lee
Kilgore’s motion seeking an arrest of judgment and in
App. 40
———————
App. 41
lent Judge Joseph |
tert
IN THE COURT OF COMMON PLEAS
OF YORK COUNTY
COMMONWEALTH : 2081 M.A. 1991
VS.
RANDY LEE KILGORE
(Suppression Hrg.)
York, Pa., Tuesday, October 1, 1991
Before the Honorable Joseph E. Erb, President Judge
APPEARANCES:
WILLIAM H. GRAFF, JR., Esquire
Assistant District Attorney
For the Commonwealth
ALLEN H. SMITH, Esquire
For the Defendant
Reported by:
Karen Bellavia, RPR
Official Court Reporter
App. 42
PROCEEDINGS
** *
MR. GRAFF: This is Commonwealth of Penn-
sylvania versus Randy Lee Kilgore, 2081 of 91; the
charge is Celivery of cocaine, possession with intent to
deliver cocaine, and criminal conspiracy to deliver
cocaine.
This is the time and date set for a hearing on the
motion to suppress the evidence alleging that the Com-
monwealth made an illegal search of the Defendant's
truck.
We call Trooper Voggenreiter.
*_* *
KURT E. VOGGENREITER, called as a witness,
having been duly sworn according to law, testified as
follows:
DIRECT EXAMINATION
BY MR. GRAFF:
Q. State your full name and occupation, sir.
A. Kurt E. Voggenreiter, V-o-g-g-e-n-r-e-i-t-e-r,
I’m a member of the Pennsylvania State Police.
Q. You specialize in narcotic investigations?
A. Yes, sir, that’s correct.
App. 43
Q. Were you on duty with the York County
Drug Task Force on July 6th, 1991, at approximately
seven p.m.?
A. | was.
Q. Were you at that time working in the area of
Brogue with a unit of officers?
A. Yes, sir, that’s correct.
Q. Did you set up a surveillance unit around the
Brogue General Store?
A. Yes. We had a staticrary surveillance uri
and a roaming surveillance unit.
Q. You were working with a confidential
informant at the time?
A. Yes.
Q. What game plan had you devised that partic-
ular day to buy cocaine and from whom?
A. The informait, in my presence, arranged with
a Kelly Kilgore to buy and eighth kilo of cocaine.
The arrangements eventually decided upon were
that the informant was to meet Kelly Kilgore at the
Brogue General Store and that he was going to purchase
an ounce of it; and if he and his made-up customer liked
it, we would come back and buy the remainder of the
eighth kilo.
Q. Did you provide money to the informant
prior to the informant meeting Kelly Kilgore?
App. 44
A. Yes, we did.
Q. Do you know Kelly Kilgore’s relationship to
this Defendant?
A. Yes, sir, 1 do. Kelly Kilgore is this Defen-
dant’s ex-wife.
Q. She’s also been charged and has separate
counts?
A. Yes.
Q. Were you in a surveillance point at the
Brogue General Store at about 7:10 p.m. on that night?
A. Yes, I was.
Q. Who, if anyone, did you see meet with the
informant?
A. We were in constant radio contact with each
other, all the different units, and my position -- } wasn’t
in a position to see the actual meet myself. I saw the
vehicle pull into the general area. I didn’t see the actual
meet.
The meet was described over the air by Detective
Anthony Glowczewski, York County District Attorney’s
Office. He kept us posted as the -- he described it as a
Camaro, I believe he said maroon in color, with a
female.
Q. Was the person you later arrested known as
Kelly Kilgore to you?
A. Yes, she was operating that Camaro.
App. 45
Q. One or some of the units saw Kelly Kilgore
meet with your informant?
A. Yes, get in the vehicle with the informant;
and, in fact, Glowezewski said over the radio that,
they're counting money.__
Q. Was the plan, as you knew it, to receive the
coke at that time?
A. No. Kelly was to come, see if the money
was all there; then when she saw that the money was all
right, she was going to take $1300 of the money to buy
the ounce, and if we liked the ounce we were gonna
come back and buy the rest of it then.
Q. At the time that meeting was taking place,
were there other surveillance units already set up on this
Defendant’s home?
A. Yes.
Q. How far would that be from the Brogue
General Store?
A. Probably a mile, not much more, not much
less.
Q. Once Kelly Kilgore met with the informant,
where did she go?
A. She left the Brogue General Store and drove
directly to the residence that we later found out was her
father’s and where she was presently living, the one that
was within a mile of the store.
App. 46
Q. You remained at the Brogue General Store
and other units were at this Defendant’s residence?
A. That’s correct.
Q. Did you at some point in time shortly
thereafter see her return to the informant?
A. Yes, she returned within several minutes.
Q. And you didn’t see where she went, but other
units can testify that they had?
A. Yes.
Q. What happened when she got back?
A. Within a very short time, Glowczewski said
the signal is given, take her down, and we converged on
her vehicle and placed her under arrest.
I retrieved the evidence, which was a bag of
white powder which later tested out positive for cocaine
and which appeared to be approximately an ounce.
Q. But the original order was for four ounces?
A. Well, it was for an eighth of a kilo; but it
was agreed that we were only gonna buy an ounce,
check it out, and if we liked it go back and buy the rest.
Q. Did she have any of the money you orig-
inally provided to the informant?
A. No, she did not. The money that we gave
the informant for the ounce was missing.
App. 47
Q. After her arrest, you went with the other
officers to this Defendant's residence?
A. Yes, the residence that was described to us
by the other surveillance as the residence that she went
to directly after she looked at the money.
Q. And did you search the house?
A. Yes. We were given a consentual -- we were
given permission by the owner of the house, Mr. Brown,
to search the house.
Q. The Defendant was present at the time?
He was.
And his car -- was his car later searched?
I'm sorry?
? FF. @-P?
How did the car get searched, let’s start with
that?
A. We didn’t find anything in the house. We
knew that there was at least $1300 missing.
The money that we purchased the ounce for,
within the short period of time between when it was
given to Kelly Kilgore and when we arrived at the resi-
dence, it would have had to have been somewhere in
that area, so we knew that was there.
We also knew that there was the remainder of
the eighth ounce of cocaine -- or the eighth kilo of
cocaine minus the ounce that we bought somewhere.
We had reason to believe it was at the residence.
App. 48
Therefore, a search of the residence did not turn
up the cocaine, the remainder of the eighth kilo, so the
only place left was the vehicle of the Defendant here.
It was then searched. And in the passenger -- on
the passenger’s side of the floor of the vehicle was a
MacDonald's cup. The MacDonald's cup had the plastic
cap on it, had a straw sticking out of it. When you took
the cap off, there was napkins and wrappers balled up.
Underneath this was more bags of what later tested
positive for cocaine.
Q. That was turned over to you by Agent Way?
A. Yes, Agent Way found it, that’s correct.
Q. Was this Defendant later interviewed by
Detective Engle?
A. On the way back to the barracks after he was
placed in the back of Engle’s police car, he gave Detec-
tive Engle a statement.
Q. He had been advised of his Miranda rights?
A. Oh, yes. I myself advised him.
Q. Did he appear to understand them?
A. He definitely understood his rights.
Q. To your knowledge, did he waive those
rights and basically confess to the offense. He
confessed to the offense?
A. Yes, he did, yes.
App. 49
MR. GRAFF: That’s all I have of this witness.
CROSS-EXAMINATION
BY MR. SMITH:
Q. Officer, did you have a search warrant to
search this Defendant’s vehicle?
A. No, sir, we did not.
Q. Tell me how carefully you searched the
house to look for the $1300 and to look for the
remainder of what you believe was the cocaine.
A. It was not what I would term a thorough
search.
Myself, I didn’t believe that the father of Kelly
Kilgore, the Defendant’s ex-father-in-law, was involved
in it. It was searched well enough that had a package of
approximately four ounces of cocaine been around, it
would have been seen.
When | first arrived at the door, | saw somebody
run -- we heard shouts as we were approaching. It’s
about 50 -- oh, maybe 30 to 50 yards from the driveway
to the house. So as we parked, we ran up to the house,
we heard some commotion inside and | saw somebody
bolt from the kitchen into the further reaches of the
house.
I yelled "State Police,” entered the house and the
Defendant was coming out of the -- there were two liv-
ing rooms in the house, he was coming out of the rear
App. 50
living room; and it was my opinion that he was attempt-
ing to appear nonchalant. I gave a quick toss in the
living room mainly looking for a weapon.
After we were given permission to search, | went
back and looked a little more thoroughly, this time look-
ing for the cocaine and/or the money. It later turned out
that the money was in this room but it was under the
carpet area. I think that’s what you were alluding to.
Q. Now, when you searched the house the first
time, you didn’t find the money; is that correct?
A. That's correct, yes.
Q. How long after you searched did you find the
money?
A. I believe it was the Defendant who told one
of the officers where to look for the money.
Q. This was after you had searched his vehicle?
A. I’m not sure at what point that was. It could
possibly have been after the vehicle was searched.
Q. He didn’t make statements to anybody until
after the vehicle was searched. did he?
A. No, that’s correct.
Q. Did the Defendant make any statements to
you or did he make them to Mr. Engle only?
A. The only thing he told me was, go ahead and
search.
App. 51
period of time where Mr. Brown confronted his daughter
out on the lawn. I was out there when this took place.
that he had the opportunity to save all this uuouble for
his father-in-law, to have his father-in-law’s house torn
apart; and | asked him if he wanted to be a man about it
and he said, go ahead and search. He looked me in the
eyes and said, go ahead and search.
ahead and search.
lot of problems, and if he was involved in it why let
Kelly take the whole burden; and his reply to me was,
go ahead and search.
Q. What?
A. What?
Q. What.
A. I'm sorry.
Q. What did he mean, what did he say?
A. Ill give you the context of it. There was a
I went back into the house and I told Mr. Kilgore
Q. What, the house?
A. I’m just telling you what he said, he said, go
Q. Tell me exactly what you said you wanted to
A. I told him he could save his father-in-law a
Q. And what did you do?
A. Searched.
App. 52
Q. What?
A. Everything, the house, and then eventually
got to his vehicle
Q. Did he say to you, you may search my car?
A. He did not use those words.
Q. Did you give you keys?
A. No.
Q. Was the car locked?
+A. I don’t recall. I wasn’t the one who insti-
tuted the search on the vehicle. I don’t recall if the keys
were taken from him and we unlocked the truck or if it
was unlocked. Maybe Agent Way could tell you that
MR. SMITH: I have no further questions
Thank vow
REDIRECT EXAMINATION
BY MR. GRAFF:
Q. Let me ask you something, Trooper Voggen-
reiter; the car wasn’t a junker, obviously an operable
car }
A. Oh, yes, it was operable.
Q. What kind of car was it?
App. 53
A. It was a Toyota pickup truck with a cap on
the back, fairly late model. I have the year here some-
where, but it’s a fairly late-model vehicle.
Q. Was it in the driveway?
A. Yes.
MR. GRAFF: That’s all I have.
MR. SMITH: No further questions.
MR. GRAFF: We call Agent Way.
DONALD L. WAY, called as a witness, having
been duly sworn according to law, testified as follows:
DIRECT EXAMINATION
BY MR. GRAFF:
Q. Would you state your name and occupation
for the record, sir.
A. Donald L. Way, W-a-y, narcotics agent for
the State of Pennsylvania, Attorney General's Office.
Q. You specialize in narcotics investigation?
A. Yes.
Q. Were you on duty July 6th, 1991, as a part
of the arrest of this Defendant?
App. 54
A. Yes. | was
Q. At the time the unit was set up in the Brogue
General Store, where were you located?
A. I was located at an elementary school located
on the same street as Mr. Kilgore’s father-in-law. I was
located at that store -- | mean at that school, excuse me
Y. And you're in radio communication with all
the other units at the time?
A. Yes, I was
Q. Were you in a position to see the Camaro
described by Trooper Voggenreiter arrive at the Brogue
General Store?
A. | didn’t see it -- I seen it come. but I didn’t
see it when it actually sat down and met with the infor-
mant. no
Q. After it had been with the informant for a
while, were you in a position to see that vehicle leave?
A. Yes, | was.
Q. Where did it go?
A. It went to her father’s house. the residence
where she was staying
Q. Did you see it arrive, were you in a position
to see it arrive?
A. Yes. | was
Q. Did you see the Defendant at any time once
that car arrived?
A. Yes, I did.
Q. Would you tell the Court what you saw when
that Camaro came back to that residence.
A. When the Camaro went to the residence, |
actually followed the vehicle up to the residence.
At the time that it arrived at the residence, Mr.
Kilgore here was coming up from the direction of the
house. I observed the young lady get out of the vehicle
and walk towards the truck along with Mr. Kilgore.
Q. He was walking from the house to the truck?
A. He came from that direction, yes.
Q. And how long did the two of them meet at
the truck?
A. Not very long. After -- | went down the
road, turned around. By the time | turned around, they
were walking back from the truck and she had gotten in
her vehicle, and she actually pulled out behind me going
down the highway.
Q. And did you follow her back down then to
the Brogue General Store?
A. I didn’t follow her into the store. | turned
off again back at the school, and she proceeded to go in
her direction towards the store.
Q. And that’s where she was arrested?
App. 56
A. Yes.
Q. And you were back at the residence: it’s my
understanding you searched the truck where the cocaine
was found?
A. Yes, | did.
Q. And is what Trooper Voggenreiter described
basically what you found?
A. Yes.
Q. Do you recall, if you know, whether the
truck was locked?
A. When I searched the truck, the truck was
open. I didn’t use any keys to gain entry or anything
The doors were open when I went to search it.
MR. GRAFF: Your witness
CROSS EXAMINATION
BY MR. SMITH:
Q. Who was the first one to go to the truck?
A. I really couldn't tell you who was the first
one. I went to the residence first.
Q. What about Mr. Engle, what was his Capacity
at this point when the truck was there and you were
there?
App. 57
A. I believe Mr. Engle was at his car. He also
was moving around in different locations. I don’t think
he was precisely stationary the whole time at his vehicle.
Q. Did you hear this Defendant make any com-
ments or statements to Officer Voggenreiter?
A. No, I did not.
Q. Did this Defendant make any statements to
you?
A. No, he did not.
MR. SMITH: No further questions. Thank you. -
** *
REDIRECT EXAMINATION
BY MR. GRAFF:
Q. Agent Way, while you’re on the witness
stand, your understanding of when you went to the truck
to search is that somebody else had already looked
through it?
A. Yes.
And they didn’t find the drugs?
That’s correct.
You conducted a more thorough search?
> 2 >
Yes.
App. 58
Q. And found the drugs that you turned over to
Trooper Voggenreiter?
A. Yes.
MR. GRAFF: Thank you.
MR. SMITH: No questions.
MR. GRAFF: That’s all the evidence we intend
to present, Your Honor.
THE COURT: Okay.
MR. SMITH: We have no testimony at this
time.
MR. GRAFF: Our argument is just an auto-
mobile exception. They had probable cause to believe
that the coke was in that truck. They had ordered four,
she came back with one. She took our money.
We have every reason to believe since she didn’t
go to the house, she went to the truck to meet this
Defendant, that the rest of the drugs were there, so no
warrant was necessary. It was just a simple automobile
exception to the warrant requirement.
MR. SMITH: Our position, Your Honor, was
there was no probable cause and no authority to search
this vehicle. There was no search warrant.
The police had searched the house, found
nothing, and then on their own motion searched the
truck and, of course, eventually found something but
without authority to search it.
App. 59
Our position is that the search was illegal, and
any statements made by this Defendant after he was
arrested would also be the fruits of an unlawful search
and seizure and should be suppressed.
ORDER
The Court has heard the testimony with regard to
the background of this case. The circumstantial evi-
dence clearly supports the decision of the officers that
there was a balance of cocaine that was left in the
vicinity of where the delivery apparently was made to
the person who delivered drugs at the Brogue Store.
They had certainly probable cause to search. This is a
vehicle.
The search of the house was searched with the
consent of the owner. There was sufficient probable
cause to arrest the Defendant.
It’s not contested that he was given his Con-
stitutional Rights and anything he said will not be
suppressed, and the search of the car under the circum-
stances there was probable cause; and under the present
law taking into consideration the totality of the circum-
stances, there was no need for a search warrant.
Accordingly, we enter the following Order:
AND NOW, to wit, this !st day of October,
1991, the Defendant’s motion to suppress evidence is
refused and denied, and we grant an exception.
** *
END OF PROCEEDINGS
App. 60
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