People v. de Jesús Robles

Mr. Justice Blanco Lugo,

dissenting.

The facts as recited in the majority opinion show, in my judgment, that the search made, though incidental to a lawful arrest for a violation of the Vehicle and Traffic Law— operating a motor vehicle without being duly authorized— was unreasonable. The unreasonableness does not refer to the contemporaneousness with the arrest, but to the lack of concurrence of any of the circumstances to which we referred in People v. Sosa Díaz, 90 P.R.R. 606 (1964). It was not made for the purpose of discovering and seizing articles connected with the violation committed, as the fruits thereof, or the tools used as means for its perpetration, or to seize weapons or other things which could be used to escape custody. This is so because I fail to see the manner in which it may conceivably be spoken of “fruits of the offense” or tools for its perpetration in connection with the violation of unauthorized driving. On the other hand, if the testimony of the officer who carried out the arrest and the subsequent search shows anything, it is that appellant docilely obeyed the orders of the police officers and that he made no attempt to offer resistance or to evade. If this is so, how can the search made be justified?

It is true that the detective said that “we suspected [in the burglary of Cástulo Torres] of three individuals who were [sic] in the business, and that according to information one of them was Porfirio de Jesús,” but, assuming that this is sufficient to comply with the requirement for the existence of “reasonable causes” which justified an arrest without a warrant — § 16(3) of the Code of Criminal Procedure, 34 L.P.R.A. § 243, cf. Rule 11(c) of the Rules of Criminal Procedure of 1963 — the witness himself reiterated over and over again that the arrest was due to the fact that when he was detained. appellant said that he had no license, not-*354to the “suspicion” that he had entered the burglarized establishment.1

Once it is concluded that the search, though lawful, was unreasonable, the articles seized were inadmissible, as would be any admission made by appellant to the detective, since obviously they were induced by the confrontation with the fruits of the unreasonable search. People v. Rodríguez Rivera, 91 P.R.R. 442 (1964).

What would there remain then as evidence of corroboration? Only, according to the delegate of the Solicitor General, the testimony of the owner of the burglarized business which places appellant with two other persons in the burglarized business at 9:30 in the evening of the occurrence, more than two hours before the commission of the offense, which took place after eleven of the same evening. I believe that that element of proof does not constitute by itself sufficient corroboration. It is true that in somé cases we have considered the presence of defendant as a link in the evidence of corroboration, but it has been 'jointly with other circumstances.

Lastly, the Solicitor places great emphasis on defendant’s testimony that he had been in the business, but that does not refer, as it is sought to be interpreted, to the moment of the penetration in 'the business, but to the time referred to in the preceding paragraph when he went to purchase cigarettes.

I cannot forego the opportunity to disapprove the assertion in footnote 3 to the effect that the operation of a motor vehicle without a license is not a mere traffic violation. A contrario sensu, it is held that it is a serious violation, based on an evident non sequitur: the serious traffic circumstances and the high incidence of accidents. In other words, if those circumstances or incidence were not present, it would not *355be serious, but it would be a mere violation. The statistics cited do not constitute either adequate basis for such conclusion, since the number of accidents or losses in which unauthorized drivers were involved is not clearly stated. To pretend to use the total results, without more, is honestly to indulge in the vice of overstatement.

In view of the fact that there was not sufficient corroboration, I am of the opinion that the judgments should be reversed and appellant acquitted.

If this had been the situation, the search could hardly have been made without the corresponding warrant issued by competent judicial authority. Cf. Flores Valentín v. Superior Court, 91 P.R.R. 782 (1965).