Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 1107 C.D. of 1973, in case of Commonwealth of Pennsylvania v. Harrison Epps Boyer.
Barry H. Denker, and Shuman, Denker & Land, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Watkins, P. J., and Van der Voort, J., join in this dissenting opinion.
[ 236 Pa. Super. Page 216]
On the night of February 29, 1973, Officers Robert C. Geary and Richard E. Cecconello of the Pennsylvania State Police, were on midnight patrol on the Pennsylvania Turnpike in Lower Swatara Township, Dauphin County. Confidential information had been received by the State Police concerning a white over black Cadillac which was allegedly transporting heroin between Philadelphia and Harrisburg.
The officers observed what appeared to be a 1969 white over black Cadillac convertible enter the Pennsylvania Turnpike at the Harrisburg East Interchange. Upon stopping the auto, the officers saw that it was a white over dark blue Cadillac convertible. As the officers approached the car from opposite sides, they observed the appellant, who was driving, and two passengers, Jacqueline Hudson in the right-front seat, and Leon Ryland Brown in the rear seat.
When Officer Cecconello looked inside the car with his flashlight, he noticed Ms. Hudson attempting to hide something. He testified that there appeared to be glassine packets in her right hand. He then requested that she get out of the car. In her possession were packages wrapped with a red rubber band which later investigation revealed to contain heroin. Everyone was then ordered out of the car and searched. Appellant was found to be in possession of $460 in small-denomination bills. Leon Brown, the other passenger, was found to have $310 in the rear pocket of his pants.
All three occupants of the car were arrested and subsequently indicted. Their cases were consolidated for trial and after waiving a jury trial, the accused were found guilty of unlawful possession of narcotic drugs.*fn1 This appeal is brought by appellant only, in which he raises two main issues.
[ 236 Pa. Super. Page 217]
Appellant first contends that the stopping of the vehicle and the seizure of the heroin were illegal. He relies on the recent case of Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), to support his position. The facts in Swanger, supra, are as follows: On April 1, 1970, at approximately 3:45 a.m., two Pennsylvania State Police Officers stopped an automobile in which Glenn Swanger was a passenger.*fn2 During the questioning one of the officers pointed his flashlight into the automobile and noticed burglary tools on the floor. The two passengers were then arrested for possession of burglary tools. The arresting officer testified that he saw nothing unusual about the vehicle or the manner in which it was operated before he ordered the stop. On these facts, the Swanger court held that the Fourth Amendment prohibited routine or spot checks of automobile operators. The court stated at 112: "We rule before the government may single out one automobile to stop, there must be specific facts justifying this intrusion." This rationale follows that articulated by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 21 (1968), wherein that Court stated: "And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."
The Commonwealth attempts to distinguish the present case from Swanger, supra, by arguing that there was probable cause for the ...