No. 121 April Term, 1978, Appeal from Order of the Court of Common Pleas of Somerset County, at No. 165 Criminal, 1977, Criminal Division.
David B. Hartman, Assistant District Attorney, Somerset, for Commonwealth, appellant.
Ronald P. Rusinak, Johnstown, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 481]
Defendant was charged with possession of marijuana and with intention to deliver marijuana. He filed an "Application to Suppress Evidence," on which a suppression hearing was held. One of two arresting officers testified. The suppression judge ordered the evidence suppressed; and the Commonwealth has appealed the ruling.
The evidence supports, and the judge found these facts, (Opinion by SHAULIS, J., pp. 3-4):
Shortly before 2 A.M. on May 14, 1977, Officer Gratten was accompanying Officer Clifford Shaffer on a routine patrol along Route 403 in Conemaugh Township. They observed a pickup truck in front of them, driving on the wrong side of the road. The officers followed the truck for about a half-mile as it turned off Route 403 onto Miller-Picking Road, Officer Shaffer decided to stop the truck.
[ 265 Pa. Super. Page 482]
Officer Shaffer approached the driver's side of the pickup truck and asked the driver, defendant Lehman, to step out. Shaffer asked Lehman to submit to a field sobriety test and then walked with him to the police cruiser, which was parked behind the truck. Officer Gratten had approached the passenger side of the truck in order to watch the female passenger. When Shaffer took Lehman back to the police cruiser, Gratten came around to the driver's side of the truck. Gratten shined a flashlight into the open driver's door to look at the female passenger who had remained in the truck.
In the beam of the light, Gratten saw what he believed to be 'marijuana seeds, stems and flowers' on the floor of the driver's side. He picked up some of this material and carried it back to the police car. Gratten returned to the truck, advised the passenger of her ' Miranda ' rights, and saw more suspected marijuana on the floor. Under the driver's seat he found a brown bag containing more suspected marijuana separated into three plastic 'sandwich baggies.' He took these items back to the police cruiser and advised Lehman of his ' Miranda ' rights. Returning to the truck again, Gratten took a pipe from the ashtray and a vial containing suspected marijuana from the glove compartment. Gratten at this point returned to the police cruiser and told Lehman he was under arrest. The officers transported Lehman to the municipal building where another 'sandwich baggy' of suspected marijuana was found in a pocket of defendant's overalls.
Defendant was charged with possession and possession with intent to deliver a total of 14 ounces of marijuana. No vehicle code violations were filed against defendant. The female passenger was not arrested or charged with any offense.
The Commonwealth argues that the eccentric behavior of the driver of the car furnished probable cause to stop the truck. The defendant argues that there was no probable cause. The suppression judge assumed arguendo, without ...