Appeal from order of Superior Court, April T., 1967, No. 248, affirming judgment of Court of Oyer and Terminer of Mercer County June T., 1965, No. 12, in case of Commonwealth v. Clifford Pinno.
Michael J. Wherry, for appellant.
Joseph J. Nelson, Assistant District Attorney, and Edward M. Bell, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Jones concur in the result. Mr. Justice Musmanno did not participate in the decision of this case.
At 10:15 p.m. on March 3, 1965, Officer Lawrence Wenko of the Pittsburgh police force observed appellant driving a convertible which had articles in the back seat and trunk (which was partly open). Officer Wenko was unable to stop the vehicle, but about fifteen minutes later he found the same car parked and unoccupied. Upon seeing television sets inside, Officer Wenko radioed his superior, asking the latter to meet him at the convertible. While awaiting his superior, Officer Wenko began to search the car and found a television set, a pair of rubber gloves, and a pinch bar.
At about 10:45 that evening, appellant was arrested six to ten miles from the car. Meanwhile, the car was being towed to the police garage, where it was again searched, an inventory being made of the goods found therein. During this entire period, the Pittsburgh police had no knowledge that the items in the convertible were stolen, or even that a burglary had been committed.
At trial, appellant for the first time moved to suppress the evidence seized during the searches of his automobile. The trial judge in the absence of the jury, held a hearing, and concluded that the evidence was illegally seized. But rather than suppressing the evidence, the judge ruled that the issue of whether appellant, by not making application by five days before trial, had waived his right to raise the suppression claim under Pa. R. Crim. P. 2001(b) presented a factual inquiry which was for the jury to decide under Rule 2001(h).*fn1 The jury concluded on a special interrogatory
that there was a waiver, and convicted appellant of burglary, the Superior Court affirming per curiam by an equally divided court. We agree with appellant that this trial procedure was improper under Rule 2001 and his conviction should be set aside.
Initially we must consider whether the trial judge was correct in deciding that the evidence in question was seized as part of a constitutionally invalid search. Although the rule established by the Supreme Court of the United States to determine the validity of warrantless automobile searches is not entirely clear, compare Preston v. United States, 376 U.S. 364, 84 S. Ct. 881 (1964) with Cooper v. California, 386 U.S. 58, 87 S. Ct. 788 (1967),*fn2 we need not enter that thicket to decide this case. There can be no question that in any event, a prerequisite to a valid search is probable cause, and that was not present here. Officer Wenko and his colleagues admittedly had no information that a crime had been committed, and although the circumstances may have looked suspicious to Officer Wenko,
even "strong reason to suspect" will not adequately substitute for probable cause as grounds for an arrest or search. Henry v. United States, 361 U.S. 98, 101, 80 S. Ct. 168, 170-71 (1959); see, e.g., Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1912 (1968); United States ex rel. McArthur v. Rundle, 402 F. 2d 701 (3d Cir. 1968). We thus conclude that the trial ...