No. 172 March Term, 1975, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania Criminal Division, at Nos. 2016A, 2017A, April Term, 1974.
Robert E. Colville, Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellant.
John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion. Eagen, C. J., and O'Brien, J., concurred in the result. Nix, J., dissents.
Appellees, Greber and Gullick, were charged with several violations of the Controlled Substance, Drug, Device and Cosmetic Act, conspiracy, and corrupting the morals of a minor. Prior to trial, appellees sought to suppress certain physical evidence obtained by police at the time of, and subsequent to, their arrest. This is an appeal by the prosecution from an order of the trial court suppressing this physical evidence. The trial court held that the evidence was the product of an illegal search and seizure because appellees' arrest was not based on probable cause. The Superior Court affirmed, per curiam, Commonwealth v. Greber, 231 Pa. Super. 767, 331 A.2d 523 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed. We affirm.
Following are the facts as stated by the trial court:
"On February 28, 1974, Officer Dan Matuszak of the Mount Lebanon Police, took up a surveillance from a building whereby he could observe the area around Bowling City. This surveillance was conducted at approximately 10:00 p. m. The area was a high crime area. From a distance of several hundred feet Officer Matuszak viewed the entire parking area of the Bowling City parking lot with a pair of binoculars.
At approximately 10:20 p. m., Officer Matuszak noticed a juvenile standing at the front entrance to Bowling City itself. The juvenile made several trips to the parking lot as if he were looking for somebody. Each time he would return to the doorway.
Eventually, a Ford Mustang pulled into the parking lot. The juvenile approached the vehicle and talked for a moment. The vehicle then pulled to the corner of the building and the juvenile followed on foot. The juvenile then approached the passenger side and spoke with the occupants. A bag was handed out of the car. He held it up to his face as if to smell it. Thereafter, he placed it at his feet and pulled something out of his pocket that appeared to be either a billfold or a wallet. Officer Matuszak could see the flash of a bill or bills. However, on cross-examination Officer Matuszak stated that what he thought was a flash of bills by the juvenile could have been a credit card or a piece of paper, or it could have well been anything.
The juvenile then picked the bag up and proceeded to walk back toward the main entrance of Bowling City. Officer Matuszak testified that the activity of the juvenile in itself did not appear to be criminal. However, he stated that it was common ...