No. 2857 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 3917-78.
Before Montemuro, Hoffman, and Van Der Voort, JJ.
Appellant contends that the lower court erred in failing to suppress a sawed-off shotgun that had been seized during a warrantless search of his automobile. We disagree and, accordingly, affirm the judgment of sentence.
When ruling on a suppression motion, the lower court must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(g); Commonwealth v. Brown, 473 Pa. 562, , 375 A.2d 1260, 1262 (1977); Commonwealth v. Dixon, 266 Pa. Superior Ct. 569, 572, 323 A.2d 55, (1979). On appeal, this Court must determine whether the record supports the suppression court's findings of fact and conclusions of law. See, e.g., Commonwealth v. Brown, supra; Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). If the suppression motion has been denied, the appellate court "will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Brown, supra at , 375 A.2d at 1262, quoting Commonwealth v. Kichline, 468 Pa. 264, 280, 361 A.2d 282, 290 (1976).
Applying these criteria, the evidence at the suppression hearing establishes the following: On September 21, 1978, at approximately 1:20 a.m., the chief of security at the Mariott Hotel in Lower Merion Township saw a guest wandering about the hotel lobby engaging other guests in conversation. The man, who appeared to be intoxicated, later met three men and a woman in the hotel's all-night restaurant. The security officer observed the woman and one of her companions accompany the guest to his room. Suspecting a possible robbery, the security officer maintained watch of the room. The companion departed promptly. At approximately 4:15 a.m., the woman left the room. Shortly thereafter, her companion returned, and asked the security officer where she had gone. He replied that she had gone "out the door." The companion proceeded to the guest's room followed by the security officer. The guest then told the security officer that the woman had just stolen his watch and money. The security officer immediately searched the hotel lobby for the woman. During this search, he met a Philadelphia policeman and told him of the robbery. The security officer and the policeman then went to the parking lot where they saw the woman and appellant sitting on the front seat of appellant's automobile. About this time, the security officer received a radio warning that the woman was armed. As they approached the car, the policeman asked the woman and appellant to get out of the car. When the woman exited the car, the policeman noticed that she was armed with a pistol. A uniformed hotel security officer subsequently searched appellant's car and discovered the sawed-off shotgun. Appellant and the woman were detained until the arrival of a Lower Merion Township policeman who placed them under arrest.
Appellant contends that the warrantless search of his automobile was improper because the officers lacked probable cause. We disagree. It is well settled that an officer may conduct a warrantless search of an automobile if he has independent probable cause to believe that: (1) a felony has been committed by the occupants; (2) the vehicle has been used in the furtherance of the commission of a felony; (3) evidence of a crime is concealed within the vehicle; or (4) weapons are located therein and are accessible to the occupants. Commonwealth v. Shaffer, 447 Pa. 91, 104, A.2d , (1972), quoting Commonwealth v. Lawis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971). Considering the information supplied by the guest and over the security officer's radio, the security officer's observations, and the proximity in time and place to the robbery, the officers had probable cause to believe that the woman had robbed the guest, was attempting to flee in appellant's automobile, and may have been armed. See Commonwealth v. Ramsey, Pa. Superior Ct. , , 393 A.2d 806, 811 (1978). Moreover, "[e]ven if we were to accept the doubtful conclusion that probable cause to arrest did not then exist, a limited invasion of [appellant's] privacy for the purpose of investigating possible criminal activity was constitutionally proper." Commonwealth v. Kazior, Pa. Superior Ct. , , 410 A.2d 822, 825 (1979) (citations omitted) (when officer learned that burglary had just occurred or was then occurring, saw two men leaving scene of burglary, and search of area produced two men hiding on floor of nearby parked vehicle, officer had, at a minimum, sufficient basis to detain occupants for brief investigation). In either event, because the officers had a reasonable basis to believe that the woman was armed and posed a threat to their safety, they could order the occupants out of the car and conduct a limited search for weapons. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, L.Ed.2d (1977); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accord, Commonwealth v. Kazior, supra. When the officers discovered that the woman was armed, they had probable cause to search for other weapons accessible to the occupants of the vehicle. Commonwealth v. Shaffer, supra at 104-05, A.2d at . Cf. New York v. Belton, U.S. , 101 S.Ct. 2860, L.Ed.2d (1981) (when making full custodial arrest, officers may search interior of arrestee's automobile incident to the arrest). Accordingly, the lower court did not err in refusing to suppress the sawed-off shotgun.*fn*