No. 578 April Term, 1976, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7507677A
Robert L. Eberhardt, Charles W. Johns, and Louis R. Paulick, Assistant District Attorneys, Pittsburgh, for Commonwealth, appellant.
Bruce A. Carsia and John J. Cohen, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.
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The instant appeal has been taken by the Commonwealth from an Order granting a defense motion to suppress all physical evidence obtained for use against the appellees in criminal proceedings.*fn1 After a thorough review, we find the arguments raised by the Commonwealth to be meritorious and reverse the Order of the lower court.
The record shows that on September 21, 1975, at approximately 3:30 a. m., an officer of the Pittsburgh Police Department was conducting surveillance at the Loendi Club on Ledlie Street in Pittsburgh, and observed patrons entering and leaving the club after the legal closing time. The officer had been instructed by his superiors to observe activity at the club and ascertain if certain people, for whom police had search or arrest warrants, were entering the club. During his surveillance the officer observed appellee Banks arrive in a clean, shiny, green 1974 Cadillac and enter the club. Approximately one-half hour later, Banks exited the club and entered the car, remaining there for a short period of time; thereafter he returned to the club. At about 5:30 a. m., the club was raided by police, and Banks along with other patrons was arrested on a charge of visiting a disorderly house. While being transported from the Loendi Club to the Public Safety Building, Banks and another man forced open the rear exit door of the police bus, jumped out and escaped. Not long after, at about 6:30 a. m., or 7:00 a. m., while police were still at the club awaiting warrants to search vehicles outside the club, appellee Banks with Greer as his passenger drove on Ledlie Street past the police at the
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club. He was driving a Chevrolet, and one of the officers on the scene identified him as he drove by. This officer advised the other officers of Bank's identity and the fact that he had escaped from the police bus. Farther down the street, but in the clear view of the officers, appellee Banks stopped the Chevrolet and appellee Greer got out of the passenger side. She got into the green Cadillac Banks had earlier driven to the club. Both Banks and Greer then drove the two cars down to the next street, apparently not knowing that it was a dead-end street and provided no outlet from Ledlie Street.
The police on the scene, including the officer who conducted the original surveillance were at that time still at the site awaiting the arrival of a superior officer who was to deliver warrants previously issued for the search of vehicles of several of the club patrons who had been arrested. Just after Banks and Greer had driven down the street and turned the corner, the officer arrived with the warrants. He left his car in the middle of narrow Ledlie Street. Just after that, apparently finding no outlet, the appellees drove back up Ledlie Street, with Greer, driving the Cadillac, in the lead.
The two cars were forced to stop as a result of the position of the parked police car. Appellee Greer stopped the Cadillac just beside the officer who had initiated the surveillance earlier that morning. The latter recognized the Cadillac as the automobile he had first seen driven by the appellee Banks when he had first arrived at the after-hours club. The officer was standing about one and a half feet from the passenger-side window of the Cadillac when he saw the butt end of a revolver sticking out from the front seat armrest which was down. He shouted to a fellow policeman, who was on the other side of the car, that there was a gun on the seat. That officer opened the driver-side door and hit an electric door unlock button. The first officer then opened the other door and pulled out the gun. While pulling out the gun, he noticed a brown paper bag which had been under the armrest. Protruding from the bag was a rolled cigarette, which, based upon his past experience, appeared to
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him to be a marijuana cigarette. Opening the bag, he found other items of contraband, including heroin and cocaine. Appellee Greer was arrested and appellee Banks was re-arrested.
It was the claim of the appellees that the initial stop and subsequent search and arrests in this case were without probable cause. We find the contrary to be true. The appellees came to a stop only because they could not pass a police car parked in their path. There is not a scintilla of evidence to suggest that the police car was thus parked by the officer as a roadblock for appellees' cars. Moreover, if such evidence were present, we would hold such conduct proper in view of the totality of circumstances then apparent to the police on the scene. Appellee Banks was known to be a recent escapee from custody following the raid on the club. His companion, Greer, was assisting him in the removal of his car from the scene of the arrest. When, in the course of such events, an officer spotted the gun, in plain view in the Cadillac, the police were completely justified in entering the car to prevent its use in furtherance of the appellees' attempts to avoid a re-arrest of Banks. The discovery of the suspected narcotics in the course of these activities suggests no impropriety by the officers.
"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." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612 (1972). The instant situation is somewhat akin to a stop and frisk situation where the officer has power to act where he observes ". . . unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . . ." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). In the case of a vehicle stop and search, probable cause exists when the officer is possessed of information
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which creates a reasonable suspicion that the detained motorist is involved in criminal activity. Commonwealth v. Ferraro, 237 Pa. Super. 268, 352 A.2d 548 (1975); Commonwealth v. Nastari, 232 Pa. Super. 405, 335 A.2d 468 (1975). As recited above, the officer saw the Cadillac stop beside him as a result of its inability to pass a parked police car. He knew that it was driven to the scene by an individual who had a short time before escaped from police. The woman driver had accompanied this escapee back to the scene of his arrest to get his vehicle, probably to further assist and facilitate his continued evasion of arrest. In plain view, at that time, the officer saw a gun within the reach of the Cadillac's driver. Based upon these facts there was clearly probable cause to act in the manner the police did and enter the Cadillac to seize the weapon and detain and then arrest the driver. Of course, knowing that the driver of the next car was at that time a fugitive, there was certainly probable cause to arrest him. All of these facts completely justified the reasonable belief that criminal activity was afoot at the time a probable cause existed to support the conduct of the police.
Reversed and remanded for trial.
SPAETH, Judge, dissenting:
The officer who conducted the search of the green Cadillac testified that appellee Greer, "driving the green Cadillac belonging to [appellee] Banks, stopped directly in front of me. I was on the passenger's ...