Leonard G. Ambrose III, Erie, for appellant.
R. Gordon Kennedy, Dist. Atty., Bernard L. Siegel, First Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result.
The appellant was arrested and subsequently charged on two counts of burglary, conspiracy, possession of burglary tools, receiving stolen goods and larceny. Prior to trial, a Motion to Suppress was denied. The appellant was found guilty by a jury of burglary and possession of burglary tools and after the denial of post-trial motions, sentence was imposed. On appeal, the Superior Court, being equally divided, the judgment of sentence was affirmed. Commonwealth v. Murray, 226 Pa. Super. 101,
A.2d 293 (1973). Allocatur was then granted by this Court and we now reverse.*fn1
The crucial question raised in this appeal was the legality of the stop of an automobile in which appellant was a passenger. The pertinent facts are that the police responded to a burglar alarm from a clothing store and arrived shortly thereafter at the scene. Upon arrival, the officers noted a fleeing shadow departing from the rear of the building in question. Although an attempt was made to apprehend the fleeing suspect it proved unsuccessful and under the circumstances, no identification of the individual was possible. At the scene, the officers discovered a pry bar wedged between the door and the door casing at the rear of the store. Other members of the police department, after being advised of the incident, proceeded to search the area in an effort to apprehend the culprit. Approximately an hour after the initial alarm, police officers observed a 1962 Chevrolet automobile enter a driveway of a house located near the store, stop for a few moments and then depart. It was subsequently determined that the place where the vehicle had stopped, was the home of the parents of appellant. As the automobile drove away, the police proceeded to follow it for approximately one-half mile. During this period of time, no traffic laws were violated nor was there any indication of anything unusual either about the appearance of the vehicle or the behavior of its occupants. The officers then signaled the vehicle to stop. The driver complied and immediately brought his vehicle to a halt. One of the officers went to the passenger side of the automobile and at some point thereafter shined a flashlight into its rear interior. Lying on the floor behind the driver's seat and visible from the outside, was a hammer and railroad spike. Upon request, the three occupants
of the car produced proper identification. As a result of the police's observation of these items in the rear of the vehicle, a search warrant was obtained for the automobile and the resulting search produced items that had been taken in a burglary earlier that night.
We recently stated in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875, 878 (1973):
"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 police absolute, unreviewable discretion and authority to ...