No. 2640 OCTOBER TERM 1979, No. 68 PHILADELPHIA 1980, Appeal from an Order of the Court of Common Pleas of Montgomery County, at 2713-79.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Edward Kane, Norristown, for appellees.
Price, Watkins and Montgomery, JJ.
[ 285 Pa. Super. Page 553]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Montgomery County which suppressed certain evidence seized by police from defendant Seip's truck. Without this evidence the Commonwealth is unable to proceed with its cases against the defendants.
[ 285 Pa. Super. Page 554]
The defendants had been charged with Burglary, Theft, Criminal Conspiracy, and Receiving Stolen Property. These charges arose out of an incident occurring on June 16, 1979 at which time Patrolman Ritrovato stopped the defendant Seip's vehicle at the Valley Forge Turnpike exit in Upper Merion Township, Pennsylvania, and discovered therein redcolored machinery recently stolen from the Royal Contracting Company. The court below suppressed this evidence holding that the officer did not have probable cause to stop defendant Seip's vehicle.
On June 16, 1979 at 6:47 P.M. the police dispatcher at the Upper Merion Township Police Department received a call from a Larry Perkins, proprietor of the Perkins Garage in the township. His call concerned the presence of a pick-up truck containing a white male and two children in the cab thereof on his property. The truck had been there for an hour. After receiving this information from the dispatcher Officer Ritrovato went to the scene. Upon arriving he observed the defendant Seip in the pick-up truck which had a glass and metal cabin over its loading bed. The cabin contained windows through which one could readily observe the contents thereof. The officer approached Seip who informed him that he was waiting for a Wilson Freight Company driver who was scheduled to show Seip an antique car and that he was accompanied only by the two children. No other person than Seip and the children were observed either in the cab or cabin of the vehicle. The officer also observed that the cabin of the vehicle was essentially empty. After checking Seip's vehicle registration and owner's cards (which were in order), the officer left the scene.
At 8:25 P.M. the dispatcher received a call from a John Schmitz, who keeps a dump truck parked across from Perkin's garage. Schmitz informed the dispatcher that he had seen the pick-up truck travelling down a driveway which leads from the Royal Contracting Company. Seip was driving but another white male inside the cabin was seen attempting to close the door to the cabin. He also saw red colored pieces of machinery inside the cabin of the truck.
[ 285 Pa. Super. Page 555]
This information was relayed to Patrolman Ritrovato who was familiar with the fact that Royal Contracting Company maintains various machinery.
At the turnpike booth Ritrovato, assisted by two other officers, observed the truck stopped at the tollgate. Seip was behind the wheel of the truck accompanied by two children who were in the cab of the truck. While walking around the vehicle, Ritrovato observed machinery in the cabin of the truck on the loading bed. The cabin of the truck was mostly glass and had a glass door on the back and the contents of the loading bed were plainly visible to him. He then raised the cabin window and saw that the machinery consisted of a paint sprayer, an electric welder, a winch, and a portable pump. He also saw a quilted blanket which was rising and falling as if someone were underneath the blanket breathing. The officer then ordered the person underneath the blanket to come out from under it whereupon the defendant DeNault exited the cabin of the truck and informed Ritrovato that he was a former employee of Royal Contracting Company and had permission to use the ...