decided: January 19, 1973.
Appeal from order of Superior Court, Oct. T., 1971, No. 966, affirming the judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, No. 1917, in case of Commonwealth of Pennsylvania v. Alfred Pollard.
Drew Salaman, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
James T. Ranney, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
[ 450 Pa. Page 140]
Appellant, Alfred Pollard, was arrested on March 10, 1970, and charged with possession of narcotics. A pre-trial motion to suppress evidence was timely filed, and after an evidentiary hearing, denied. Appellant, thereafter, was tried non-jury and found guilty. Post-trial motions were denied, and appellant was sentenced to serve 11 1/2 to 23 months imprisonment. The Superior Court affirmed in an opinionless per curiam order, with Judge Hoffman dissenting. This Court granted allocatur.
Appellant raises but one issue on this appeal: Did the trial court err in admitting into evidence the narcotics seized from appellant, a passenger in an automobile stopped for a routine traffic infraction, where allegedly no constitutional justification existed for ordering appellant from the car? For the reasons set out below, we decide this issue favorably to appellant. Accordingly, we reverse and remand for a new trial.
The trial court found the following facts: On March 10, 1970, two police officers, in an unmarked car, noticed an automobile carrying three men proceed through a red light at 20th and Christian Streets in the city of Philadelphia. The officers stopped the vehicle at the next intersection (approximately two minutes later), whereupon the driver produced a valid operator's license and proper registration. While one officer conversed with the driver, the other proceeded to the passenger's side of the automobile and ordered appellant, the passenger in the front seat, as well as the passenger in the rear, out of the car. As appellant was alighting from the vehicle, a white packet dropped from his hand.
[ 450 Pa. Page 141]
Upon retrieving and opening the packet, the officer placed appellant under arrest for possession of dangerous drugs.*fn1
As is conceded by the Commonwealth, and found by the trial court, probable cause did not exist for appellant's arrest at the time he was ordered from the car. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967); Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968). See also Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). Nonetheless, the Commonwealth attempts to justify the police officer's action as a "stop" under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) and Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968). We cannot agree.
As the Court stated in Terry, a "stop and frisk" is justified only : ". . . where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, . . ." Terry, supra at 30, 88 S. Ct. at 1884 (emphasis added).
This Court, applying the principles of Terry and Sibron, supra, held in Commonwealth v. Hicks, that: ". . . even in the absence of probable cause, a person may under certain circumstances be seized and searched
[ 450 Pa. Page 142]
by the police to protect their own safety. What the Commonwealth overlooks is that for such a precautionary seizure and search to be legitimate, there must first exist on the part of the police a reasonable belief that criminal activity is afoot and that the seized person is armed and dangerous. The police must prove that specific conduct of the seized person, observed by them, justified and made reasonable their belief that criminal activity was afoot and that the seized person was armed and dangerous. The instant record is devoid of such necessary proof. Hence, the seizure was not 'justified at its inception' and was violative of the Fourth Amendment. The evidence resulting therefrom should have been excluded." 434 Pa. 153, 160, 253 A.2d 276, 280 (1969) (emphasis added). See also Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Clarke, 219 Pa. Superior Ct. 340, 280 A.2d 662 (1971).
At the suppression hearing, here, the arresting officer testified that appellant was ordered from the vehicle for the sole reason that the car had been stopped in a "high crime area." The officer stated categorically that appellant had committed no suspicious or unlawful act prior to or at the time appellant was ordered out of the car.*fn2 Further, as was previously noted, appellant was not the driver of the automobile.
[ 450 Pa. Page 143]
On the basis of these uncontroverted facts, as found by the trial court, it is evident that the officer had no reason to believe that criminal activity was afoot or that appellant posed any danger to anyone's safety. Therefore, no lawful justification existed for the officer's action. See United States v. Johnson, 463 F. 2d 70 (10th Cir. 1972).*fn3
Having determined the unlawfulness of the initial detention of appellant, we must now decide ". . . whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) (quoting from Maguire, Evidence of Guilt, 221 (1959)).
Although abandoned property may normally be obtained and used for evidentiary purposes by the police,*fn4 such property may not be utilized where the abandonment is coerced by unlawful police action.
[ 450 Pa. Page 144]
As the Fifth Circuit noted in Fletcher v. Wainwright : "Several courts have considered this situation and have uniformly held that the initial illegality tainted the seizure of the evidence since the throwing was the direct consequence of the illegal entry. In such a situation it cannot be said that there was a 'voluntary abandonment' of the evidence. The only courts that have allowed the seizure of evidence that was thrown out the window have emphasized that 'no improper or unlawful act was committed by any of the officers' prior to the evidence being tossed out the window." 399 F. 2d 62, 64 (5th Cir. 1968) (citations omitted). See also Hobson v. United States, 226 F. 2d 890, 894 (8th Cir. 1955).
Here the record establishes that the police officer's unlawful and coercive action was the causative factor which motivated appellant's abandonment.*fn5 Accordingly, it must be concluded that the trial court erred by refusing to suppress the illegally obtained and tainted evidence. See, e.g., Williams v. United States, 237 F. 2d 789 (D.C. Cir. 1956); Moss v. Cox, 311 F. Supp. 1245 (E.D. Va. 1970).
The judgment of sentence is reversed and a new trial ordered.
Judgment of sentence reversed and new trial ordered.