H. David Rothman, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Nix, J., concurs in the result.
On December 14, 1972, appellant, Alfred Pinney, was tried by a judge sitting without a jury and found guilty of possession of narcotics and dangerous drugs, placed on one year's probation, and ordered to pay the costs of his prosecution. Appellant's post-verdict motions in arrest of judgment and for a new trial were denied. The Superior Court, one judge dissenting, affirmed appellant's conviction. Commonwealth v. Pinney, 236 Pa. Super. 309, 344 A.2d 596 (1975).
Appellant contends here, as he did in the Superior Court, that his conviction should be reversed because the drugs introduced into evidence were the product of an unlawful search. Specifically, appellant argues that the search of his person violated his constitutional right to be free from unreasonable searches; thus the trial judge was in error in denying his motion to suppress the drugs found in appellant's possession. We agree, and therefore reverse the judgment of sentence.
On December 9, 1971, a Pennsylvania state trooper was murdered and two Altoona police officers were wounded. The descriptions and names of the two suspects were broadcast. The following morning, a bus driver telephoned the state police when he observed three men boarding his bus in Altoona, two of whom he thought matched the broadcast descriptions. Appellant was one of the passengers. Three plain clothed police officers, armed with complete descriptions of the two suspects, boarded the vehicle at its destination in Monroeville, approximately 70 miles from Altoona, and immediately proceeded to the rear of the bus where appellant and his two companions were seated. The officers
identified themselves as police, requested that the three youths stand, and asked for identification. Despite the fact that all three youths produced identification inconsistent with the names of the murder suspects, one of the officers conducted a pat-down search of the appellant and felt a bulge in appellant's coat pocket. The officer ordered appellant to empty his pockets. The bulge, which the officer testified he believed might be a small automatic weapon, was a two-inch by four-inch plastic bag of marijuana and six foil packets containing 571 diamphetamine tablets. The appellant was removed from the bus, and a subsequent check of identifications cleared the appellant and his two companions of any complicity in the police murder.
The prosecution first contends that the search of appellant's person was constitutionally valid as incident to a lawful arrest. Such a search is a well settled exception to the Fourth Amendment's warrant requirement. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Whether the arrest was constitutionally valid depends on whether, at the time the arrest was made, the officers had probable cause to make it. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 680 (1976). Probable cause existed if, at the time appellant was detained by the police, the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the appellant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932, 937 (1976); Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975). Mere suspicion is not enough; the burden is on the Commonwealth to show, with reasonable specificity, facts sufficient to establish that probable cause for the arrest existed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).
The existence or nonexistence of probable cause, as well as the broader question of the constitutionality of a warrantless search, can only be decided in the concrete factual context of the individual case. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917, 932 (1968). While this Court does not sit to appraise contradictory factual questions, it is this Court's duty to make an independent examination of probable cause, apart from any conclusions drawn by a trial judge or other appellate court, to ensure that the constitutional criteria ...