Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1974, Nos. 1292 to 1295, inclusive, in case of Commonwealth of Pennsylvania v. Westley Hayes and David Green.
James Garrett, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Harry R. Seay, submitted a brief for appellee, Westley Hayes.
Andrea Commaker Levin, Assistant Defender, with her John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellee, David Green.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Spaeth, J.
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On August 1, 1974, at approximately 1:30 p.m., John Walsh, a sergeant with the Philadelphia Police Department, was cruising in an unmarked patrol car when he observed two men, appellees Westley Hayes and David Green, sitting in a green and black Mustang, parked in front of an apartment building in an area in which there had recently been a number of burglaries. Since the automobile in which the men were sitting matched the description of a car which the police suspected had been
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used in one or more of the burglaries, Sergeant Walsh parked his car and watched the two men. After a wait of three to five minutes, Sergeant Walsh observed the two men leave the car, ascend the steps to the apartment building and disappear from view. When the two men reappeared, they were carrying two white boxes and a portable typewriter, which they placed on the rear seat of their car. The men then entered the building a second time and emerged carrying a large television set, which they placed in the trunk of the car. At that point, Sergeant Walsh approached the men, identified himself, and asked if either of the two men lived in the apartment building; when both men replied in the negative, the sergeant called for assistance. When a backup car arrived, Sergeant Walsh instructed the police officers to detain appellees until he could check inside the apartment building. A search of the third floor of the building disclosed an apartment which had obviously been burglarized. The sergeant then instructed his men to take the two suspects into custody and to call for a police wagon. David Green and Westley Hayes were charged with criminal conspiracy and burglary. At a suppression hearing held on January 28, 1975, the lower court granted appellees' motions to suppress physical evidence and all statements made by appellees, and the Commonwealth appealed the grant of the suppression motions.
The Commonwealth argues that the initial brief detention of appellees was reasonable under the circumstances, and that the subsequent arrest of appellees and seizure of the stolen property were pursuant to a lawful arrest based on probable cause. In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the Supreme Court approved the procedure whereby a police officer might detain an individual for a short period of time if the officer suspected that the individual had engaged or was presently engaging in criminal activity, notwithstanding the fact that his suspicion did not rise to
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probable cause to arrest that individual. The Court there stated (407 U.S. 143, at 145-46): "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1] recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." After the initial stop, however, a police officer must have probable cause before making an actual arrest. Commonwealth v. Ellis, 233 Pa. Superior Ct. 169, 335 A.2d 512 (1975). Whether a police officer has probable cause to arrest depends upon whether at the time of the arrest the facts and circumstances within the knowledge of the officer, or of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886 (1970); Commonwealth v. Tookes, 236 Pa. Superior Ct. 386, 344 A.2d 576 (1975). Of course, if appellees in the case before us were lawfully arrested, then evidence obtained as the fruit of such lawful arrest would be admissible against appellees. Henry v. U. S., 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); Commonwealth v. Tookes, supra.
Appellees refer us to Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974), as support for their argument that the lower court properly suppressed the stolen articles and certain statements made by them to the police, as fruit of an arrest not based on ...