No. 30 March Term, 1979, Appeal from the Order of the Superior Court at No. 203 April Term, 1977, entered on December 28, 1978, which affirmed the Judgment of Sentence entered on September 30, 1976, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7503927.
John H. Corbett, Jr., Paulette Balogh, Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, M. Susan Ruffner, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Flaherty, J., files a dissenting opinion in which Larsen and Kauffman, JJ., join.
The validity of a warrantless police search of an automobile trunk is challenged on this appeal. We conclude that the police lacked probable cause for the search and that the evidence found in the locked trunk should therefore have been suppressed. Accordingly, we reverse and order a new trial.*fn1
At 1:30 a. m. on May 5, 1975, officers patrolling in a marked police car observed an automobile proceeding through an intersection without stopping for a stop sign.
The officers followed this car for several blocks. After weaving from side to side, the car pulled to the curb in front of a residence. The officers parked their car and watched as a passenger Jesse C. Booker left the car, knelt beside the passenger door, and then walked toward the residence. At this time the officers stopped Booker. The police then asked appellant Michael Long, the driver of the car, as well as another passenger, to get out of the car. Police detected the smell of alcohol on appellant's breath, and after he was unable to produce a driver's license or automobile registration police arrested him. Appellant and the other passenger were then searched for weapons.
Upon reaching the scene, one of several other officers responding to the call discovered a revolver and a clear plastic bag containing several packets, later identified as heroin, beneath the car on the passenger side. Officers then opened the trunk of appellant's car where they found marijuana and heroin.*fn2
Prior to trial, appellant sought to suppress the drugs found in the car trunk. The court, however, denied the motion to suppress. After a non-jury trial, appellant was convicted of possession with intent to deliver the narcotics discovered in the trunk and sentenced to two and ...