No. 394 January Term, 1979, Appeal from the Order of the Superior Court, No. 1867, October Term, 1977, affirming the Order of the Court of Common Pleas of Berks County, 1975 Term, No. 973.
Theodore Simon, Philadelphia, for appellant.
Charles Guthrie, Asst. Dist. Atty., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
In the Court of Common Pleas of Berks County, the appellant, Paul Benjamin LaRue Fassett, Sr., was convicted of conspiracy and possession of a controlled substance. An appeal was taken to the Superior Court, which affirmed,*fn1 and we granted allocatur.
On June 20, 1975, at approximately 11:00 a. m., a bank robbery occurred on Route 10 in Cumru Township, Berks County. Police officers were alerted by a radio dispatch that three or four black males in a light-colored sedan, sought in connection with the crime, may have concealed themselves in the area. The dispatch contained no further description of the vehicle or its occupants. At 8:15 p. m. that same day, a police officer observed a white 1960 Oldsmobile sedan, occupied by two black males, traveling on Route 23 in Morgantown, approximately eight miles from the robbery scene. Although the vehicle was being operated in a lawful manner, the officer, recalling the radio alert, made an investigatory stop. The driver alighted to converse with the officer, and the appellant, who had been riding on the passenger side, removed an open shopping bag from the floor of the automobile and deposited it on the highway adjacent to the passenger door. The officer proceeded to the passenger side to investigate, and observed, in plain view within the bag, a quantity of marijuana. Appellant and the driver were arrested; neither was, however, in fact connected with the bank robbery. A joint trial ensued in which both were convicted of related conspiracy and controlled substance possession offenses.
Appellant alleges that trial counsel was ineffective*fn2 for failing to move for suppression of the physical evidence, to-wit marijuana, on the ground that it was obtained through an investigatory stop that violated Fourth Amendment rights. We agree.*fn3 In Commonwealth v. Murray, 460 Pa. 53, 60-61, 331 A.2d 414, 417-418 (1975), this Court set forth the standard of cause required to support the stop of a vehicle:
Where individuals proceeding in an automobile are forced to interrupt their travel at police direction, such action clearly amounts to a seizure of those individuals and the basis for that stop must meet Fourth Amendment standards. Traditionally, we have held that a seizure is not unreasonable under the Fourth Amendment where probable cause exists at the time of that seizure . . . The decisions of the United States Supreme Court and this Court have defined probable cause as being present where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information were sufficient to warrant a man of reasonable caution and belief to conclude that the suspect had committed or is committing a crime. . .
The United States Supreme Court in [ Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), has ...