Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Jacobs, President Judge, concurs in the result.
This appeal is from judgments of sentence for robbery, burglary, and conspiracy. Appellant makes three arguments.
[ 255 Pa. Super. Page 101]
Appellant first argues that the lower court should have suppressed evidence obtained by New Jersey police after they stopped appellant in Cinnaminson Township, New Jersey.
On July 11, 1972, in the early afternoon, Officer David Duboraw was on a routine patrol when he saw, parked in a service station lot, a black and white Mercury Cougar with a green and white out-of-state license tag and a black man inside. Duboraw noticed this car because he remembered a bulletin issued for a car of its description on June 9, 1972, in connection with a robbery and shooting by two black men in the adjoining borough.
After circling the block, Duboraw saw that a Ford U-Haul van (or panel truck) had joined the Cougar, and that the driver of the Cougar was talking with two black men in the van. As Duboraw watched, the two vehicles drove out of the service station lot. Duboraw followed them to a liquor store, where the Cougar parked in a normal manner but the van parked in an unusual manner, pulling up with its front facing the doors of the store, and blocking the semi-circular drive. The three men went inside the store. Suspecting that a robbery might be in progress, Duboraw radioed for help. Two other police cars arrived, and took up positions from which they could observe the events. The three men emerged from the store with a six-pack of beer and a bottle of wine, and drove off. About a quarter-mile down the road both vehicles pulled into what the police described as a "jug handle" off the road. At that point the three police cars stopped them and asked the drivers for identification and vehicle registrations. One driver had no identification; the other had a license that was out of date. Appellant was the passenger in the van. Since the Cougar, the van and the police cars together were blocking traffic, the police asked the three men to accompany them to the police station a block away, to check out their licenses and identifications. The men drove to the station in their vehicles.
[ 255 Pa. Super. Page 11]
At the station, unknown to the three suspects, one officer went into the men's room and looked into the toilet tank, finding it normal. The three men were brought into the adjoining interrogation room, and shortly afterwards one of them asked to use the men's room. The officer listened outside the door; he heard no urinating or flushing, but did hear the sound of porcelain against porcelain. After the man came out, appellant also asked to use the men's room; the officer listened, with the same result. When appellant came out, the officer went in and looked into the toilet tank. Sure enough, in it he found credit cards and papers; some of them belonged to a person who, the police knew, had been robbed ten days earlier. A search warrant for the Cougar and the van was obtained, and evidence was found that linked appellant to an armed robbery in Pennsylvania; it is this evidence that appellant sought to have suppressed.*fn1
Appellant argues that the police had no probable cause to arrest him, and that even assuming that the police could question the drivers as part of a valid, routine vehicle check, State v. Kabayama, 98 N.J.Super. 85, 236 A.2d 164 (1967), they still had no reason to detain or question him, a mere passenger in the van.
We agree that the police had no probable cause to arrest the three men, either for the robbery and shooting reported in the bulletin a month before, or for being about to commit a crime. However, the police were aware that one of the vehicles they were observing might have been involved in the robbery a month before, and they observed events at the liquor store suggestive of a possible casing-out for another robbery. These facts were enough reason to detain and question the occupants of the vehicles momentarily to determine if criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. ...