This case involves an appeal from the order of June 28, 1990, sentencing the defendant/appellant (Steven M. Trunzo) to ninety days probation for underage drinking (18 Pa.C.S. § 6308(a)). We affirm.
The facts, viewed in a light most favorable to the verdict-winner, reveal that Officer Kevin C. Bickle, of the Brooksville Borough Police Department, received a radio call at approximately 12:10 a.m. to proceed to the Days Inn to investigate a "problem".
Upon arriving at the scene, Officer Bickle interviewed those present, one of whom was the appellant. In the course of his investigation, the officer learned that the appellant was nineteen years old. Additionally, in questioning the appellant, the officer detected an "odor" of alcohol on the appellant's breath, and, moreover, obtained an admission to drinking two Coors Light beers.
Based on Officer Bickle's "training and experience" (eleven years on the police force), and the believability that there was "possibly" other alcohol somewhere in the vehicle, he conducted a search of the interior of the appellant's vehicle. At that time, the appellant was standing outside of the vehicle and to the rear portion of the driver's side, the door to which had remained open since the police's arrival.
When no alcoholic beverages were found inside the vehicle, Officer Bickle asked, but was refused initially, to search the vehicle's trunk. After the officer explained to the appellant that a warrant could be obtained to conduct the search, during which time his vehicle would be impounded, the appellant "finally opened the trunk", and the police discovered eight bottles of Coors Light. The beer was seized and the appellant was issued a citation for underage drinking.
After the completion of the Commonwealth's case, counsel for the appellant asked the trial court to "reconsider" the denial of his motion to suppress. It appears that counsel for the appellant had not filed a formal omnibus pre-trial motion and attempted to argue orally his suppression claim prior to the commencement of the bench trial. The court denied the motion since it had not been raised timely, i.e., during the time-span between the hearing before the District Justice and the trial de novo before Common Pleas Court.
Nonetheless, thereafter, the trial court permitted counsel for the appellant to present testimony to refute the Commonwealth's
Trunzo recounted telling the constable his age and denying he consumed any alcohol. When he refused to open the trunk of his vehicle, the police were summoned. With their arrival, the appellant again refused, repeatedly, to open the trunk to his automobile, even with the officer's threatened use of force, impoundment of his vehicle and the securement of a warrant if consent were not given to search the vehicle.
The appellant's version presented the police as individuals who "pulled" his car keys from his hand to open the trunk and wherein bottles of Coors Light were located and confiscated. With this recovery, the appellant tells of being asked by Officer Bickle whether he "drank two beers," to which he answered, "Yes".
At the close of the case, counsel for the appellant argued that the warrantless search was improper in the absence of exigent circumstances and the use of coercion by the police to secure entry into the trunk. Moreover, counsel argued that the police lacked even "reasonable suspicion" that a crime had been committed and that the appellant had committed it.
Counsel for the Commonwealth retorted that consent to search had been established and was not vitiated by alleged "threats" against the appellant, the latter of which was the product of "incredible" testimony by the accused. Further, counsel for the Commonwealth stated that the police acted properly given the (1) odor of alcohol, (2) admission, (3) knowledge by the police of the appellant's age, (4) knowledge by the police that one under twenty-one is prohibited from consuming alcohol, and (5) awareness that the appellant drove to Days Inn.
The trial court refrained from ruling on the legality of the warrantless search because this was reflective of a "possession" of alcohol charge and the appellant had been cited for "consumption" of alcohol. As a result, the trial court
Post-trial motions were filed and denied by an order dated May 2, 1990. In an accompanying opinion, the trial court wrote that it "may have erred" in holding the appellant guilty of violating Section 6308(a) based upon the police's testimony that he smelled alcohol on the appellant's breath where the Commonwealth failed to establish that the beverage consumed contained 0.50% (or more) of alcohol by volume. Likewise, the trial court considered the voluntariness of the appellant's admission to drinking to be "somewhat suspect".
Nevertheless, the trial court held that the police had probable cause to search the trunk, notwithstanding the appellant's statement to the contrary, and the contents found therein constituted a violation of Section 6308(a). Probable cause to search was premised upon: (1) the odor of alcohol on the appellant's breath, (2) the fact that the appellant was nineteen years of age, (3) the fact that the appellant's car door was open when the police arrived at the scene, and (4) the officer's experience that the area was a known drinking site for underage individuals.
With regard to sentencing, this was imposed on June 6, 1990, and directed that the appellant be placed on probation for six months, pay the cost of prosecution, pay the
The first issue posed claims that the trial court erred in convicting the appellant of "consuming" alcoholic beverages, in violation of Section 6308(a), "based solely on the citing officer's testimony that he allegedly detected the odor of
Before addressing the appellant's challenge to the sufficiency of the evidence, we need to dispose of the second question proffered, i.e., whether the warrantless search of the vehicle, from which was seized eight Coors Light beers and looked to by the trial court as the basis for the Section 6308(a) violation, was permissible?
There is no indication that the search was effectuated incidental to an arrest, or justified by exigent circumstances or was consensual, so as to dispense with the securement of a warrant. See State v. Spellman, 153 Conn. 65, 212 A.2d 413 (1965); 45 Am.Jur.2d, Intoxicating Liquors, §§ 469, 470 (1969). Consequently, it needs to be decided whether Officer Bickle had probable cause to believe that a summary offense was being committed in his presence. No authority justifies an arrest without a warrant for a summary offense committed beyond the presence of an arresting officer in the absence of a statute giving that right. See Miles v. Com., Dept. of Trans., 8 Pa.Cmwlth. 544, 304 A.2d 704, 707 (1973).
The offense for which the appellant was charged with committing and ultimately convicted, a violation of Section 6308(a), is a summary offense. The method by which proceedings for a summary offense can be instituted are governed by Pa.R.Crim.P. 51, which provides:
Accordingly, the only permissible arrest without a warrant for a non-traffic summary offense occurs where the arrest "is specifically authorized by law." Additionally, in the Comment to Pa.R.Crim.P. 70, in discussing procedures to follow in summary cases when a defendant is arrested without a warrant,
At bar, the police issued the appellant a citation for underage drinking because the appellant had "admitted drinking two (2) Coors Light beers" and was in "possession" of eight Coors Light beers while under the age of 21. Thus, the issuance of the citation, versus arresting the appellant, was the correct procedure to follow. See Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975), Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965), and contrast with United States v. Crutchfield, 418 F.Supp. 701 (W.D.Pa.1976). No evidence of violence, the threat of violence or the appellant fleeing discounted the need to resort to an arrest of the accused. See Comment to Rule 70. Therefore, the question we need to resolve is under what circumstances can police conduct a warrantless search of a vehicle incident to a summary offense.
Albeit it is true that the general practice in nontraffic summary cases is to issue a citation and not arrest, see Shillingford, supra; Pincavitch, supra; Rules 51 and 70, this does not prohibit the conducting of a warrantless search of a vehicle where police have probable cause to believe that evidence of a crime is concealed within the vehicle. See, e.g., Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991); State v. Spellman, supra.
More to the point, in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the United States Supreme Court recited the conditions under which a warrantless search of an automobile would be tolerated; viz.:
What is to be garnered from the Chambers line of cases is the precept that where facts show that the police had probable cause to believe that evidence of a crime is located within the lawfully stopped vehicle, this same probable cause transcends the stop to "justif[y] the search of every part of the vehicle and its contents that may conceal the object of the search." Jenkins, supra, 401 Pa.Super. at 590, 585 A.2d at 1083, quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982).
In adherence with the law just recited, we find that Officer Bickle had a "basis for believing that evidence of a crime (a Section 6308(a) violation) was concealed within the vehicle." For example, the officer received a call from Constable Willis Bish that he "had a problem" and the police were "needed ... at the inn." Officer Bickle had been to Days Inn on numerous occasions on similar calls. Therefore, given the time (12:00 a.m.), day (Sunday) and information relayed ("a problem" needed attending), he
Thus, looking at all of the circumstances in a commonsense fashion and through the eyes of a "trained and experienced" officer, we hold that Officer Bickle's "assumption" escalated to "reasonable" grounds upon the completion of his investigation. As such, the police acted properly in securing
Having concluded that the police acted lawfully in entering the trunk of the appellant's vehicle, we may now turn to the issue of whether the evidence presented was sufficient to convict the appellant of violating Section 6308(a); it reads:
As amended 1988, March 25, P.L. 262, No. 31, § 10, effective in 60 days, 18 Pa.C.S. § 6308(a) (Supp.1990).
Appellant's Brief at 6-7 (Emphasis in original).
Although the trial court admitted that it may have erred in finding the appellant guilty of Section 6308(a) solely upon Officer Bickle's testimony of smelling alcohol on his breath, see Trial Court Opinion at 6; N.T. 38, the entire opinion of the trial court needs to be read to appreciate that this same fact was viewed in tandem with other evidence in validating the warrantless search of the appellant's vehicle. For example, on the last page of the trial court's opinion, mention is made of the officer detecting the odor of alcoholic beverages on the appellant's breath and looking to it as a factor in upholding the warrantless search. It is not that the trial court discounted totally the efficacy of the odor of alcohol. On the contrary, it merely utilized it in conjunction with the other evidence before the officer in deciding the search question.
The trial court had before it testimony indicating an odor of alcohol on the appellant's breath and the seizure of eight
The evidence at trial was that the appellant had purchased two cases of Coors beer for two minors. The beer was presented as an exhibit at trial.
It was the appellant's argument that the Commonwealth failed to prove every element of a Section 6310.1 violation when no evidence was offered concerning the alcoholic content of the Coors beer. In dismissing the appellant's claim, the Weller Court wrote:
399 Pa.Super. at 171-172, 581 A.2d at 1391. See also In Re: ABC, A Juvenile, 12 Adams County L.J. 142 (1971), Commonwealth v. Boyer, 63 Lanc.L.Rev. 51 (1970), aff'd 219 Pa.Super. 756, 281 A.2d 349 (1971) and contrast with In Re Kauffman, 215 Pa.Super. 110, 257 A.2d 313 (1969).
In light of Weller and Tau Kappa Epsilon, the prosecution need not have produced a chemical test of the beer seized from the appellant's vehicle and reading 0.50% or more to constitute a violation of Section 6308(a). The testimony of Officer Bickle, indicating the detection of an odor of alcohol emanating from the appellant, and the seizing of Coors Light beer from the appellant's vehicle contemporaneously thereto constitute sufficient evidence to affirm the appellant's conviction and order entering judgment
MONTGOMERY, J., concurs in the result.
The court's decision finding the appellant guilty of underage drinking because of the "odor" of alcohol detected by Officer Bickle, of necessity, discounted the "admission" in reaching its decision. N.T. 38. Perforce, the matter was closed and could not have been resurrected in a post-verdict context. Stark, supra. Accordingly, we do not look to this disputed evidence in our assessment of the case.
For edification purposes, given counsel for the appellant's admitted "confusion" as to whether he could have filed a formal omnibus pre-trial motion to suppress in Common Pleas Court, as compared to raising it orally at pre-trial following the District Justice's finding the appellant guilty of the summary offense of underage drinking, we would point out that since Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc), it has been the practice in this Commonwealth that:
Gussey, supra, 319 Pa.Super. at 402 n. 3, 466 A.2d at 221 n. 3.
And, the fact that the offense believed to have been committed, underage drinking, was a summary offense does not render inapposite the probable cause standard to believe that the law was being or had been violated because a "summary" offense is considered a "crime" for which the panoply of punishments (imprisonment, fine and/or probation) attach. See Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976).
The appellant testified that the key was removed forcibly from his hand by the police and used to enter the trunk. We need not resolve this credibility issue since it is not within our bailiwick to do so. Rather, we deem it sufficient to find that the police had probable cause to believe that the trunk contained contraband. See Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 1979-1980, 26 L.Ed.2d 419 (1970). Accordingly, the search was proper.
A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages. 18 Pa.C.S. § 6308 (1983) (amended in 1988).
Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.
The position espoused by the majority in Tau Kappa Epsilon, and endorsed by Weller, supra, is the law until altered by our Supreme Court. Accordingly, precedent having been established, this Court will adhere to the rulings enunciated under Weller and Tau Kappa Epsilon, the latter of which has been granted allocatur by the Pennsylvania Supreme Court. See 525 Pa. 581, 575 A.2d 112 (1990).