Commonwealth v. Streater , 422 Pa. Super. 502 ( 1993 )

TAMILIA, Judge:

The Commonwealth takes this appeal from the Order of July 26, 1990, suppressing evidence seized as a result of the vehicle stop and subsequent arrest of appellee, David Streater.¹

The facts of this case, as summarized by the trial court, are as follows.

On August 6, 1989, Pittsburgh City Police Officer Joseph F. Tersak was on routine patrol in the area of Seventh Avenue and William Penn Place. He observed Mr. Streater operating a light blue vehicle with an expired registration plate. As he approached the vehicle he observed scrape marks and glue on the lower right hand side of the license plate. He suspected the plate had been altered. Mr. Streater was then asked to step out of the automobile where he was placed under arrest, handcuffed and taken to the patrol car. Due to traffic conditions attributable to the Three Rivers Regatta, Officer Tersak requested a police wagon with two (2) officers to assist him at the scene. Upon arrival, Officer Tersak asked Officer White to drive Mr. Streater’s car to Zone 2 Police Station, where it would be towed to the City Pound. Officer White testified that as he entered the automobile he observed on the front seat a bag of approximately seven pieces of suspected cocaine and a large wad of money.

(Slip Op., Ross, J., 11/27/90, pp. 1-2.) Appellee was charged with possession of a controlled substance,² possession with intent to deliver a controlled substance,³ possession of drug paraphernalia⁴ and possession of an altered document or plate.⁵ A suppression hearing was held, following which the court concluded that because the offense which led to the stop was a violation of the Vehicle Code and appellee was a resident of the Commonwealth, the correct procedure would have been to issue a citation or obtain the necessary information for filing a complaint. Since the court concluded that appellee’s arrest was unlawful, all evidence seized as a result of the arrest was suppressed.

When reviewing the trial court’s ruling on a suppression motion we must

determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430, 432 (1992).

The Commonwealth has framed the sole issue in this case as follows:

THE SUPPRESSION COURT ERRED IN HOLDING THE ARREST UNLAWFUL BECAUSE A POLICE OFFICER MAY ALWAYS MAKE A WARRANTLESS ARRESTS [sic] FOR MISDEMEANORS COMMITTED IN HIS PRESENCE PURSUANT TO THE COMMON LAW RULE, AS CODIFIED IN PA.R.CRIM.P. 101(2), AND OFFICER TERSAK HAD PROBABLE CAUSE TO BELIEVE THAT APPELLEE WAS IN POSSESSION OF AN ALTERED LICENSE PLATE, IN VIOLATION OF 75 PA.C.S.A. § 7122(3), A MISDEMEANOR OF THE FIRST DEGREE.

Based upon our review of the issue, we find the suppression court erred, as a matter of law, in its interpretation and application of Pa.R.Crim.P. 101(2), and we reverse.

We must begin our analysis, as did the suppression court, with the Rules of Criminal Procedure which provide the procedures for initiating criminal proceedings. Rule 101 states:

Criminal proceedings in court cases shall be instituted by:

1. filing a written complaint; or

2. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest; or

3. an arrest without a warrant upon probable cause when the offense is a felony; or

4. an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute.

Pa.R.Crim.P. 101.⁶ The suppression court went on to conclude “the Vehicle Code limits the power of the police to arrest without a warrant” (Slip Op. at 3). However, section 6304 of the Vehicle Code provides:

§ 6304. Authority to arrest without warrant.

(a) Pennsylvania State Police.—A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.

(b) Other police officers.—Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer making the arrest.

(c) Other powers preserved.—The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law.

75 Pa.C.S. § 6304 (emphasis added). The suppression court held that a motor vehicle violation, even for a misdemeanor such as section 7122(3), did not permit arrest of a local citizen except by the state police. This interpretation is erroneous because the arrest powers of police are not limited by the Vehicle Code, unless so specified, and the Code must be read in pari materia with the Crimes Code and the Rules of Criminal Procedure to determine if and when an arrest is proper. The specific language of section 6304(c) actually extends the power to arrest. 75 Pa.C.S. § 6304(c).

Out of the literally dozens of offenses under the Vehicle Code, a mere handful are designated as misdemeanors, the remainder being summary in nature. The misdemeanors are deemed to require a different treatment because of their unique qualities calling for greater arrest power and ultimately a more severe penalty. Greater arrest powers are required to assure the actor will be brought to justice and evidence obtained at the time of arrest can be secured so as to be available at trial or to prevent the continuance of the illegal activity. Examples are driving under the influence (§ 3731), homicide by vehicle (§ 3732), accidents involving death or personal injury (§ 3742), removal or falsification of identification numbers (§ 7102) and altering, forging or counterfeiting documents and plates (§ 7122), the present offense. In most of these violations proceeding by citation could result in the loss of evidence essential to the conviction as the evidence would travel with the actor and his vehicle. Arrest is necessary, as here, to preserve the evidence or to assure proper identification and availability for trial.

The analysis we employ today is not novel. In Commonwealth v. Neufer, 264 Pa.Super. 553, 400 A.2d 596 (1979), this Court held section 6304 incorporated by reference the authority to arrest for a summary offense, when that authority exists outside the Vehicle Code. In Neufer; the defendant was arrested for “pedestrian under the influence,” a summary offense under the Vehicle Code. By looking “elsewhere to determine whether any authority [exists] to make a warrant-less arrest,” Id. at 559, 400 A.2d at 599, and finding arrest authority existed in cases of drunkenness and disorderly conduct under the Second Class Township Code of 1933, 53 P.S. § 65591, the arrest was held to be valid.

Neufer, of course, was a case involving a summary offense, but its underlying principle extends to the case before us. The arrest in this case, if anything, has greater validity because of the explicit powers of police to arrest pursuant to Pa.R.Crim.P. 101. To hold otherwise requires us to find the rules of criminal procedure do not apply equally to motor vehicle cases. The rules provide that in summary offenses, unless specified otherwise, proceedings are instituted by citations. In misdemeanor cases, proceedings are commenced by written complaint or arrest without warrant when the misdemeanor occurs in the presence of the police officer, unless otherwise provided by statute (example being driving under the influence). Felony cases are instituted by written complaint, arrest without warrant upon probable cause or when the felony is committed in the presence of the police officer. There are no exceptions and special considerations to the means of instituting proceedings.

It is not disputed generally, nor is it the subject of debate in this case, that at common law a police officer was authorized to effect a warrantless arrest for any misdemeanor committed in his presence. Rule 101 is merely the codification of the common law rule. It follows, then, that if Officer Tersak had probable cause to make a warrantless arrest of appellee for a violation of section 7122 of the Vehicle Code, a first degree misdemeanor,⁷ the arrest was legal. Probable cause for a warrantless arrest exists where the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe the suspect has committed or is committing a crime. Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991).

Officer Tersak testified he stopped appellee’s automobile because of the discrepancy between the temporary registration sticker on appellee’s license plate and the letters on the plate indicating it was approximately four years old. As he approached the vehicle, Officer Tersak observed a residue of glue and scratch marks where the expired registration sticker apparently had been removed, leaving only the temporary sticker, and altering the plate to make it appear to be valid.

We find, based upon his observations, Officer Tersak had probable cause to arrest appellee under Rule 101(2) for a continuing violation of section 7122. The subsequent seizure occurred pursuant to a valid arrest, and was therefore lawful. Consequently, suppression of the evidence was improper, and we remand for trial on all charges.

Order reversed; remanded for trial.

Jurisdiction relinquished.

Concurring Opinion by KELLY, J., joined by McEWEN, J.

1 . The Commonwealth has certified that the suppression Order terminates or substantially handicaps its prosecution of appellee. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

2 . 35 P.S. 5 780-113(a)(16).

3 . Id., § 780-113(a)(30).

4 . Id., § 780-113(a)(32).

5 . 75 Pa.C.S. § 7122(3).

6 . As one commentator noted: "An initial problem exists for anyone trying to determine when such 'specifically authorized’ arrests can take place. These grants of power are not collected in any one place, but instead they are scattered throughout the Crimes Code, the Vehicle Code, and elsewhere.” McCarthy, Warrantless Arrests in Pennsylvania, 92 Dick.L.Rev. 105, 114 (1987).

7 . Section 7122 provides:

Altered, forged or counterfeit documents and plates.

A person is guilty of a misdemeanor of the first degree if the person, with fraudulent intent:

(3) has possession of, sells or attempts to sell, uses or displays a certificate of title, registration card or plate, driver's license, inspection certificate, proof of insurance or any other document issued by the department, knowing it to have been altered, forged or counterfeited.