Given the legality of the stop, defendants next attack the validity of the arrest as being unsupported by probable cause. Further, defendants argue that the only violation attributable to either of them was a summary offense under the Pennsylvania Vehicle Code, i.e., the failure of defendant Nazarok to have a driver's license with him. Since Pennsylvania courts purportedly do not permit an arrest or search for such an offense, defendants maintain that all evidence seized by the officers must be suppressed.
We do not agree that a motor vehicle code violation formed the sole basis for the arrest. The evidence clearly establishes that independent probable cause to arrest the defendants arose during the course of the investigatory stop.
Following the investigatory stop, information developed rapidly until ultimately providing the officers with a reasonable basis to believe a crime was in progress. Neither defendant could produce any identification or indicia of ownership of the automobile. Officer Halpin observed from outside the vehicle a screwdriver and pliers on its rear floor as well as maps and a flashlight on its front seat, all in plain view. Recognizing the potential use of these instruments in a burglary, he asked the defendants what they were doing. Although both men stated that they had visited several bars in the area, neither could recall the name of a single establishment to which they had been. Additionally, no odor of alcohol could be detected on the breath of Nazarok, who stood only one or two feet from Officer Halpin. Further arousing the officers' suspicions were the continual furtive glances between the defendants, their stilted speech patterns and the apparent attempt of defendant Rickus to twice leave the scene. The observance of a bulge in Nazarok's jacket pocket as well as a portion of a bullet-proof vest protruding above the jacket led to the discovery that both defendants were wearing full upper-body bullet-proof vests.
At that point, the information known to the officers was sufficient to establish probable cause to believe criminal activity, i.e., a burglary, was in progress. Courts have long recognized that investigating officers need not be armed with evidence sufficient to prove guilt in a court of law before effecting a legal arrest and search. Adams v. Williams, 407 U.S. at 149 (1972); Henry v. United States, 361 U.S. 98, 102, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959). Probable cause exists if the facts known to the officers and the circumstances with which they are faced would warrant a prudent man in believing that the suspected offense had been or was in the process of being committed. Henry v. United States, 361 U.S. at 102; Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Zadroga v. City of Philadelphia, No. 81-1174 slip op. at 5 (E.D. Pa. March 30, 1983). Since such a belief was clearly warranted in the instant case, the defendants' arrest was legal.
Defendants further contend that the alleged statement concerning the hitting of a drug dealer made by defendant Nazarok must be suppressed because it was obtained without his first being informed of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). More particularly, they argue that the interrogation of Nazarok was custodial in nature because it followed a pat-down search and was being conducted at gunpoint. Therefore, defendants argue that the investigating officers had a duty to warn Nazarok of his rights before proceeding.
Since the defendants were being properly detained pursuant to a Terry stop and had not been formally arrested at the time of the alleged statement, the Government maintains that Miranda warnings were not then required. Moreover, it contends that Officer Berwind's drawing of his gun during the course of the stop was reasonable under the circumstances as a precautionary measure and, therefore, insufficient to transform the stop into an arrest.
An individual need not have been formally arrested before his interrogation by police officers is deemed custodial in nature. Miranda v. Arizona, 384 U.S. at 444 (1966). The test is more properly whether the interrogation, initiated by law enforcement officers, is conducted in a manner that deprives the questioned individual in any significant way of his freedom to act. Id.
In the case at bar, the circumstances under which the statement was obtained went well beyond the limited detention and questioning envisioned by Terry.9 We previously found that the statement came at a time after the investigating officers had probable cause sufficient to arrest the defendants. Additionally, the defendants already had been spread-eagled against the Buick and patted down by one officer while an assisting officer held a gun on them. Hence, the defendants were clearly the focus of a police investigation and, more importantly, greatly restricted with respect to their freedom of action. For these reasons, we find that the interrogation which led to defendant Nazarok's alleged statement was custodial in nature and thus required the investigating officers to inform him of his rights prior to proceeding with questioning. Therefore, the alleged statement must be suppressed.
Lastly, defendants challenge the warrantless search of the vehicle's trunk as having been conducted without independent probable cause and as having exceeded the permissible scope of a search incident to an arrest. Accordingly, they seek to suppress all evidence obtained thereby.
The Government, strenuously opposing suppression, argues that the information known to the officers at the time of the search was sufficient to provide them with probable cause to believe that the car contained evidence of crime, i.e., additional burglar tools. Furthermore, it contends that under United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572 (1982), a police officer armed with probable cause to search any part of a vehicle may lawfully search every part of that vehicle. Hence, the Government maintains that the search of the trunk was legal, and the evidence found therein should not be suppressed.
Because the law of Pennsylvania controls this issue, Ross is not dispositive.
This precise issue was addressed by the Supreme Court of Pennsylvania in Commonwealth v. Long, 489 Pa. 369, 414 A. 2d 113 (1980). In Long, the Court found a warrantless search of a locked automobile trunk to be violative of the right to be free of unreasonable searches and seizures under Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution.
Id. at 117. In reaching its conclusion, the Court opined that the existence of probable cause sufficient to search the passenger section of a car does not automatically justify a search of its trunk. Commonwealth v. Long, 414 A. 2d at 116. The Court held that
in reviewing the validity of a warrantless automobile search it must be recognized that the open areas of a car differ from the locked trunk, where the owner of the vehicle manifests a greater expectation of privacy.