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.
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.
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 ...