Opinion by
Aрpellant Calvin Clarke was arrested on April 23, 1970 and charged with carrying a concealed deadly *342 weapon. His motion to suppress was denied by the Honorable Thomas Reed of the Court of Common Pleas of Philadelphia. On September 7, 1970, he ivas found guilty by the Honorable Maurice Sporkin sitting without a jury. Post trial motions were denied and sentence was imposed. This appeal is from the ruling of Judge Reed at the suppression hearing.
The circumstances leading tо appellant’s arrest were not, in our judgment, sufficient to establish probable cause for arrest under the standards enunciated in
Commonwealth v. Hicks,
The arresting officer hаd been cruising in a patrol car in the vicinity of 15th and Westmoreland Streets in North Philadelphia. Stopping at an intersection, the officer observed aрpellant talking in a pay telephone booth. Apparently after seeing the police car, appellant hung up the phone and begаn to “hurriedly” walk north on 15th Street. The officer observed a “bulge” in appellаnt’s rear pocket and he subsequently detained, searched and arrested him. 1 He further testified that he did not see appellant committing any crime and thаt lie had no information that a crime had been committed in that neighborhood.
In Hides, supra, our Supreme Court held that in order for a precautionary search and seizure to be legitimate: “. . . there must first exist on the part of the police a reasonable belief that criminal activity is *343 afoot and that the seized person is armed and dangerous. The police must prove that spеcific conduct of the seized person, observed by them, justified and made rеasonable their belief that criminal activity was afoot and that the seizеd person was armed and dangerous. The instant record is devoid of such necessary proof. Hence, the seizure was not ‘justified at its inception’ and wаs violative of the Fourth Amendment. The evidence resulting therefrom should have bеen excluded.” at p. 160.
In both
Hicks
and
Commonwealth v. Berrios.,
Here the police officer admitted observing nothing that would give rise to the “reasonable belief that criminal activity is afoot and that the seized person is armed and dangerous”. The officer was not even investigating a reported crime and neither appellant’s hurried exit from the telephone booth nor the “bulge” in his pocket were of themselves sufficient to establish probable cause. Further, we do not bеlieve that these factors, taken together, warranted either the inferеnce that appellant had committed or was in the process of сommitting a crime.
The search of appellant was unlawful and the fruits of this search should not have been admitted into evidence.
The judgment of sentence is vacated and appellant is granted a new trial.
Notes
The officer described his actions as follows: “Q. You were in plain view of the defendant? A. Yes, about 10 fеet away. Q. Go on. A. He saw us. He hung the phone up rather abruptly and started vеry hurriedly north on 15th Street close behind us. At this time I looked back at him on my side and I observed a bulge in his right rear pocket. I backed the police car up аnd I got out of the car and asked the defendant what the problem was. He stated that he had just been robbed. At this time I frisked him and felt what appeared to be a gun. We retrieved it. It was a gun. I placed him under arrest.” (N.T. 5, 6.)