Commonwealth v. One 1963 Cadillac

Dissenting Opinion by

Spaulding, J.:

I agree with Judge Hoffman that the warrantless search of appellant’s car was not incident to her arrest, as it was neither in the immediate vicinity of, nor substantially contemporaneous with the arrest. However, before holding the search unlawful, I believe it necessary to deal with the applicability of Cooper v. California, 386 U.S. 58 (1967) to the instant case.

In Cooper, the Supreme Court upheld a warrant-less search of a car which had been impounded by police under a statute requiring the police to hold for forfeiture proceedings any vehicle used to transport *242narcotics. In distinguishing Preston v. United States, 376 U.S. 364 (1964), which is the basis for Commonwealth v. Cockfield, 431 Pa. 639, 246 A. 2d 381 (1968), the Court in Cooper relied exclusively on the fact that the car was seized for forfeiture proceedings:

“[T]he reason for and the nature of the custody may constitutionally justify the search .... Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car . . . was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car . . . had no right ... to search it.” 386 U.S. at 61.

The Pennsylvania Liquor Code, 47 P.S. §6-601, provides : “No property rights shall exist in any . . . vehicle .. . used in the . . . illegal transportation of liquor . . . and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted .... No such property when in the custody of the law shall be seized or taken therefrom on any writ of replevin or like process.” While the Code does not expressly require police to seize a vehicle illegally transporting liquor, they clearly have the authority to do so. The fact that the Code does not require seizure and impounding, as was the case in Cooper, does not mean that that decision is inapplicable when a vehicle has in fact been seized under the Code. However, this difference necessitates distinguishing Cooper from the instant case.

*243In Cooper, a statute directed that the car he held for forfeiture and the seizure and police custody were based exclusively upon this statute. The challenged search took place 1 week after the car was impounded and was in all respects “incident” to the forfeiture proceedings. The language of Cooper quoted above clearly indicates that the validity of the search stemmed from the purpose for which the car was initially seized and subsequently detained, and the relationship between the search and this purpose.

In the case at bar, however, the arresting officers were not required to seize the car for forfeiture and there is no indication that it was so seized prior to the search. The first attempt to search the trunk of the car was made when appellant was arrested. This attempt was unavailing as appellant did not have the trunk key with her and attempts to view the interior of the trunk by removing the back seat were unsuccessful. The car was then taken to a police station where a master key was obtained and the trunk opened. This sequence of events indicates that the car was taken to the station to be searched, not as part of the routine procedure for impounding it pending forfeiture proceedings.

Cooper clearly did not intend to permit the bare existence of a forfeiture statute to create an exception to the general rules governing search incident to arrest. Rather, the rationale of the decision applies only to searches made in the course of the forfeiture process. While I would not hesitate to apply Cooper were it clear that the search was a result of seizure of the car for forfeiture under §6-601, the facts negate this possibility here. Since Cooper does not apply and the search was not incident to arrest, I would reverse the order of the court below.