Appeal from order of Court of Common Pleas of Chester County, Sept. T., 1972, No. 246, in case of Commonwealth of Pennsylvania v. Enrique DeJesus.
Robert S. Gawthrop, III, Assistant District Attorney, with him William H. Lamb, District Attorney, for Commonwealth, appellant.
John R. Merrick, Public Defender, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J.
[ 226 Pa. Super. Page 80]
This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Chester County suppressing the evidence after an indictment of the defendant-appellee, Enrique DeJesus, for violation of the Uniform Firearms Act. The Commonwealth cannot prove a case without the suppressed evidence and this appeal by the Commonwealth followed.
The facts are as follows: On September 23, 1972, at approximately 12 midnight, the Chief of Police of Avondale Borough was on patrol when he was approached at a gasoline station lot by a car occupied by young people. The spokesman for the group, Chet Munson, Jr., a resident of Avondale but unknown to the officer, complained of a vehicle that was following them closely and trying to drive them off the road. The car complained of was parked in the same lot about fifty (50) feet from the Munson vehicle.
The officer approached the parked car in the company of a fellow officer and flashed his light into the window as he was approaching the car some distance away. The flashlight disclosed two occupants in the car moving about as if they were trying to hide something and "scrooching down" so that they could not be seen. The officer continued to approach the car still flashing his light and asked the driver to get out and show his cards. The officer beamed his light into the
[ 226 Pa. Super. Page 81]
car and from his position outside of the car saw something shiny which he reached in and removed. It was an unregistered, fully loaded revolver.
The court below suppressed the evidence on the theory that the police officer did not have the right to position himself outside the parked car where the flashlight disclosed the revolver. He relied heavily on the recent case of Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). This case was reargued before the Supreme Court and reaffirmed in an opinion by Mr. Justice Eagen, adopted and filed on July 2, 1973.
In the Swanger case, supra, the stopping of the car was without any reason except a "routine check" by the officer and the court held that: "It is axiomatic, however, that only unreasonable seizures are proscribed by the Fourth Amendment. Therefore, appellant's 'seizure' would not be constitutionally impermissible if it could be shown that it was reasonable."
The Court further said that: "The crux of our decision that a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of the Motor Vehicle Code, goes to the Commonwealth's argument the police need no justification to stop the vehicle. We rule before the government may single out one automobile to stop, there must be specific facts justifying this intrusion. To hold otherwise would be to give the ...