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COMMONWEALTH v. NASTARI ET AL. (02/27/75)

decided: February 27, 1975.

COMMONWEALTH, APPELLANT,
v.
NASTARI ET AL.



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1972, No. 3792, in case of Commonwealth of Pennsylvania v. John Nastari and Michael Romana.

COUNSEL

Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.

Irving M. Green and David O'Hanesian, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Cercone and Price, JJ., concur in the result.

Author: Hoffman

[ 232 Pa. Super. Page 406]

The Commonwealth appeals from the order of the lower court that suppressed evidence seized by the police from appellees' vehicle.

[ 232 Pa. Super. Page 407]

On December 20, 1971, at 1:55 a.m., two armed men committed a robbery in the North Versailles Bowl, a bowling alley in North Versailles Township, Allegheny County. The police were notified immediately. At 2:06 a.m., the Huntington Township police transmitted a radio broadcast which indicated that the robbery suspects, two white males between 35 and 40 years old, were headed towards North Huntington Township in a light-colored Volkswagen and that the suspects were armed. Lieutenant John Cimprich of the North Huntington Township Police Department heard the broadcast while he was sitting in his police car in a service station parking lot on Route 30, approximately one mile from the bowling alley. Immediately prior to the broadcast, the lieutenant had observed two men traveling at a slow rate of speed in a light-colored Volkswagen. There was little traffic on the highway because of the early hour of the morning; the lieutenant was able to observe the men clearly because the roadway was well-lit from the nearby service station. After the broadcast, and less than fifteen minutes after the robbery, the lieutenant notified his partner, Officer Richard Keeler, on patrol in a separate vehicle one mile east on Route 30, that the robbery suspects were approaching Keeler's location.

Officer Keeler spotted the VW immediately and followed the automobile as the driver turned off the main road. After Lieutenant Cimprich had caught up with the VW, Officer Keeler signaled for the suspects to pull off the roadway. While the lieutenant was talking with the operator of the vehicle, Officer Keeler shined a spotlight through the window on the operator and on the back seat of the automobile. With the aid of the flashlight, the officer saw a green bank bag and a large screw driver visible in a black gym bag. The subsequent search revealed two pistols and the money taken in the robbery.

Appellees were subsequently arrested and indicted on charges of armed robbery, violation of the Uniform

[ 232 Pa. Super. Page 408]

Firearms Act and burglary; appellee Nastari was additionally charged with pointing a firearm. Appellees thereafter filed a motion to suppress the physical evidence discovered in the gym bag. After a hearing on December 18, and 19, 1973, the court below granted the appellees' motion. The Commonwealth appealed that order on January 22, 1974.*fn1

The Commonwealth concedes that the police must meet the requirements of the Fourth Amendment of the United States Constitution when they conduct an investigatory stop of an automobile. That is the clear holding of two recent Pennsylvania Supreme Court cases. Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). As stated in Swanger, "[a]n automobile is a place where an individual has a reasonable expectation of privacy . . . . Moreover, when a police officer stops a vehicle he has 'seized' the vehicle and its occupants, and thus, the protections of the Fourth Amendment must ...


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