No. 398 October Term 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Clear-field County, Pa., at No. 75-88-CRA.
James A. Naddeo, Clearfield, for appellant.
Thomas F. Morgan, District Attorney, Clearfield, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Cercone, J., joins.
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On November 12, 1974, appellant and a co-defendant, David Garrell, were arrested by the Clearfield Borough Police on a charge of violating the Drug, Device and Cosmetic Act.*fn1 Garrell pleaded guilty and is not a party to this appeal. Appellant was tried by a jury and found guilty on June 2, 1975. On November 6, 1975, the lower court sentenced appellant to pay one dollar and costs and to a term of thirty days to one year in prison. This appeal followed.
On November 12, 1974, Officer Ronald Smith of the Lawrence Township Police Department saw an automobile operated by appellant go through a stop sign and into a gas station. Since the gas station was in Clearfield Borough, Officer Smith radioed the Clearfield Borough Police, requesting that they meet him and his partner at the gas station. Before the Clearfield Borough Police arrived, Officer Smith saw appellant and another man get out of the automobile and walk towards the restroom of the gas station. Officer Smith testified that the two men walked in a "suspicious manner." When the men reached the restroom,
[ 251 Pa. Super. Page 255]
they both entered it. Shortly thereafter, Officer Jury and Assistant Chief Mohney of the Clearfield Borough Police arrived at the gas station. Officer Smith related the recent occurrences to Officer Jury. It will be necessary to consider later just what Officer Smith told Officer Jury, but for the moment it is enough to say that he explained that the suspicious manner with which the two men had entered the restroom caused him to believe that they were possibly "up to something." Officer Smith's partner, Officer Collins, knew the two men by name and told Officer Jury who they were. Officer Jury recognized appellant's name, as he had once arrested appellant on a marihuana charge. Officer Jury climbed onto the roof of a shed located beside the restroom in order to look into a window located directly above the door of the restroom. From this vantage point, Officer Jury was able to observe Garrell hold a syringe up to the light and push the plunger of the syringe in a slow manner, causing fluid to spurt from the end of the needle. As Officer Smith attempted to climb onto the shed, he made some noise. Hearing this noise, appellant and Garrell started to leave the restroom. As they began to open the door, officers standing outside confronted them. Officer Jury, still on top of the shed, observed appellant throw a syringe into the corner of the restroom and Garrell put his syringe into his right rear pocket. Both appellant and Garrell were apprehended by the officers standing outside the restroom. Officer Jury alighted from the shed and retrieved the syringe that appellant had discarded; he also removed the syringe from Garrell's pocket. Appellant and Garrell were then taken to the Clearfield Borough Police Station. After identifying information was obtained from them, they were released. Analysis showed the substance contained in the syringes to be morphine, which is classified as a Schedule II drug under the Drug, Device and Cosmetic Act.*fn2
Appellant filed a motion to suppress evidence. In support of the motion, appellant argued that he was the subject of an unreasonable search when Officer Jury observed his
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activity through the restroom window. Following a hearing, the motion was denied by the lower court and the case proceeded to trial. After being found guilty, appellant reiterated in post-verdict motions, and now argues on appeal, that his Fourth Amendment rights were violated. We agree.*fn3
Whether the Fourth Amendment applies at all to this case depends on whether appellant had a justifiable expectation of privacy when he entered the gas station restroom. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We hold that he had. The facts of this case are in no persuasive respect distinguishable from those in Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972).
Whether appellant's expectation of privacy was unreasonably violated depends on whether Officer Jury had probable cause to invade that privacy by climbing onto the shed and peering into the restroom. We hold that he did not.
In the first place, Officer Jury's testimony regarding what he was told by Officer Smith is too incomprehensible to support a finding of probable cause.
Q. You explain it to us as best you can, okay, the suspicious manner?
A. The two individuals walking close together, in other words not at a normal pace as if two people were walking side by side, but rather front to front, and they had, like, their arms together sort of elbows pinned to ...