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COMMONWEALTH v. SWANGER (07/02/73)

decided: July 2, 1973.

COMMONWEALTH
v.
SWANGER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 1163, affirming the judgment of sentence of Court of Common Pleas of Lebanon County, No. 256 of 1970, in case of Commonwealth of Pennsylvania v. Glenn R. Swanger.

COUNSEL

Frederick S. Wolf, with him Beaver & Wolf, for appellant.

George E. Christianson, District Attorney and Leonard Packel, Deputy Attorney General, with them David J. Brightbill, Assistant District Attorney, J. Andrew Smyser and Marc Kapustin, Deputy Attorneys General, and Israel Packel, Attorney General, for Commonwealth, appellee.

Paul D. Boas and Samuel A. Vitaro, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice Pomeroy concur in the result.

Author: Eagen

[ 453 Pa. Page 109]

The appellant, Glenn R. Swanger, was convicted by a jury of burglary. Post trial motions were denied and Swanger was sentenced to serve a term of ten to twenty years imprisonment. A timely appeal was filed in the Superior Court, which affirmed the judgment and conviction. Allocatur was granted by this Court and on November 8, 1972, the issue was submitted for decision without oral argument. On January 19, 1973, we reversed the judgment and conviction and remanded for a new trial. A petition for reargument by the attorney general of the Commonwealth was granted and the case was orally argued before the Court on April 24, 1973. After further consideration, we again reverse and remand the case for a new trial.

The following facts are established by the record:

On the night of April 1, 1970, at approximately 3:45 a.m., Swanger was a passenger in an automobile operated by one John Krall. Two Pennsylvania state police officers stopped the automobile for a "routine" check. The officers determined the operator of the vehicle did not have a valid driver's license, and the vehicle did not have valid registration plates. During the questioning, one of the officers pointed a flashlight in the automobile and noticed burglary tools on the floor of the vehicle. The two passengers were ordered to step out of the vehicle and placed under arrest for possession of burglary tools. Subsequent investigation linked appellant to a burglary, the conviction of which he challenges instantly.

Pretrial Swanger questioned the validity of the "routine" stop of the automobile and made a motion to suppress all evidence which was the fruit of the allegedly illegal stop. After a hearing, the motion to suppress was denied, notwithstanding the testimony of the arresting officer that he saw nothing unusual about the

[ 453 Pa. Page 110]

    vehicle or the manner in which it was operated before he ordered the stop.

Appellant argues the "routine" stop was violative of the Fourth Amendment,*fn1 whereas, the Commonwealth counterargues the officers could validly stop the vehicle under The Vehicle Code of Pennsylvania,*fn2 even though the officers observed nothing unusual about the vehicle beforehand. Initially, we emphasize the only issue here involved is whether a police officer ...


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