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decided: March 29, 1976.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1974, Nos. 1821 and 1822, in case of Commonwealth of Pennsylvania v. Jesse Benson.


John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.

Francis C. Barbieri, Jr., Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, J., concurs in the result. Concurring Opinion by Price, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Van Der Voort

[ 239 Pa. Super. Page 102]

On December 1, 1974, at approximately 9:20 A.M., Officer Craig Baker of the Philadelphia Police Force received a Police Department radio report advising him to be on the lookout for a dark-skinned Negro male, approximately 6 feet tall, in a brown leather coat, driving a late-model dark green Ford station wagon with the first two numbers of the license plate 4 and 0. The suspect was wanted for investigation in the possible sale of guns and a check-writing machine. One hour after hearing the report, Officer Baker stopped Jesse Benson, appellant in this case. Appellant was wearing a brown leather coat, and was driving a late-model dark green Ford station wagon with a license plate with the first two numbers 4 and 0. When Officer Baker asked to see appellant's owner's card and driver's license, appellant replied that he did not have a driver's license and that he did not have the owner's card for the car. Officer Baker testified that he was unable to radio in to the station to find out if the car had been stolen since the computer was down at the time; furthermore, Officer Baker was unable to rely on the latest "hot sheet", since the sheets were not published on weekends.

Acting reasonably under the circumstances, Officer Baker took appellant into custody for transportation to the police station. After placing appellant in the police wagon, and before leaving for the station, Officer Baker looked in the back seat of the station wagon which appellant had been driving, and discovered, under a green mat or old rug, a check-writing machine. After

[ 239 Pa. Super. Page 103]

    arrival at the police station, an investigation disclosed that the Ford station wagon had been stolen sometime between 6:45 and 10:30 the previous evening. Appellant was charged with theft of the auto, unauthorized use of the auto, and with receiving stolen goods.

Appellant moved to suppress all evidence discovered as the result of his allegedly-illegal arrest. A hearing on the suppression motion was held on April 3, 1975, at which time the motion was denied. Officer Baker was the only witness to testify at this hearing. Appellant was tried by a judge sitting without a jury immediately following the denial of the suppression motion. The judge found appellant guilty of theft, unauthorized use of an auto, and receiving stolen property, and sentenced appellant to 5 years probation. Appellant appealed from the judgment of sentence, arguing that the evidence of his possession of the automobile should have been suppressed as fruit of an unlawful arrest, since the Commonwealth allegedly "failed to satisfy its burden of establishing probable cause for transmitting the police radio bulletin which prompted the arrest."

Appellant relies on the U.S. Supreme Court case of Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L.Ed. 2d 306 (1971), as support for his argument. In Whiteley, a warrant had been issued for the arrest of specific named individuals, and a police officer stopped a car with the object of arresting those individuals. The information which the arresting officer relied upon was based on information supplied for the warrant by an unnamed informer, and the Supreme Court specifically found that the warrant was not based on sufficient probable cause. The Court went on to say however (at 567), that "where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone." (Emphasis added). The Court found that there was no such new information

[ 239 Pa. Super. Page 104]

    obtained by the arresting officer, and reversed the denial of the suppression motion. The implication is that police may rely upon information which is broadcast over the police radio in order to justify an initial stop of an automobile suspected of having been involved in criminal activity. The arrest of persons thus stopped can then be justified either by demonstrating that probable cause existed for the issuance of the police bulletin,*fn1 or by showing that information obtained during the stop by the arresting officers gave rise to probable cause for an arrest. In Whiteley, there was no probable cause for the issuance of the warrant (and, consequently, no probable cause for the police bulletin), and there was no new information disclosed by the stop. The Supreme Court therefore reversed. In the case before us, new information - ...

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