226 Pa. Super. 101 | Pa. Super. Ct. | 1973
Opinion
The six judges who heard and decided this appeal being equally divided, the judgment of sentence is affirmed.
Opinion by
In Support oe Reversal:
Appellants, Donald Yineent Murray and Paul Herman Adams, are attacking their convictions of burglary and possession of burglary tools on the grounds that the fruits of an illegal stop, or of an illegal arrest, or of an illegal search pursuant to a warrant were admitted into evidence against them in violation of their constitutional rights as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. I find their claim with regard to the stop to be meritorious and therefore, without reaching the other grounds alleged, would reverse and remand for a new trial.
On September 2, 1969, around 11:40 p.m., there was an attempted burglary at the Robert Hall’s Clothing Store in Millcreek Township, Erie County, Pennsylvania. In responding to a burglar alarm that was triggered in the attempt but sounded only at the police station, Officer Stevenson of the Millcreek Township Police Department reached the scene in time to get a fleeting glimpse of the shadow of a person leaving the area of the store on foot. The officer was unable to describe the person. A cursory search of a trailer park adjacent to the store did not produce the person, nor any suspects. The officer found, still stuck in the door, a pry bar that had apparently been used to jimmy it partially open. Within minutes, Officers Urraro and Kensil arrived on the scene and were advised of the shadow. They proceeded to search the area by cruising around in their patrol car. About an hour after the initial alarm, they saw a 1962 Chevrolet pull into the
Appellants were charged with the burglary of Ferraro Ford, and with possession of burglary tools. Their motion to suppress the evidence that was in plain view during the stop as well as that obtained during the search pursuant to the warrant was denied, as was a motion for a new trial and in arrest of judgment based on the same arguments that had been made in support of the motion to suppress.
Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969), relying on Terry v. Ohio, 393 U.S. 1 (1968), makes it clear that stopping an individual under a show of authority is a seizure of his person that must meet the standards of the Fourth Amendment. Commonwealth v. Boyer, 223 Pa. Superior Ct. 196, 297 A. 2d 493 (1972) (Hoffman, J., dissenting). There are two circumstances in which an officer may constitutionally seize a person. The first is when the police officer has probable cause to arrest, i.e., at the inception of the seizure he has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief that the person seized has committed a crime. Commonwealth v. Hicks, supra at 158, 253 A. 2d at 279. The second is where only a momentary seizure is made for purposes of crim
In the present case there was no probable cause to stop the ear. The two officers who stopped it had no clues as to who had committed the attempted burglary of the Robert Hall’s Clothing Store. Officer Stevenson had been unable to give them a description of the person whose shadow he saw fleeing the scene. Whoever the person was, he was on foot. There was no evidence that he had a car. If he did have a car, he could have been out of the area by the time appellants were stopped an hour after the initial alarm sounded. Nothing linked the burglary to appellants or to the car in which they were riding. There was nothing unusual about the car’s mere presence in the area because although it was just after midnight, there were many other cars on the road (none of which was stopped). The only facts on which the Commonwealth can rely are the officers’ knowledge that a burglary liad been attempted and their observation of “suspicious” behavior by the car in the vicinity of the burglary.
These facts are not enough on which to predicate a finding of probable cause. In Commonwealth v. Pegram, 450 Pa. 590, 301 A. 2d 695 (1973), it was held that there was no probable cause for the arrest of a man who fled from the vicinity of an attempted robbery of which the detaining officers had knowledge. The flight
Nor were the facts enough to warrant a momentary seizure for investigative purposes. Just how suspicious the actions of the car were is determinative. The Commonwealth, in its brief, contends that the occupants of the car could have seen the patrol car and, not wishing to be discovered, pulled into the driveway, backed out, and proceeded slowly in the opposite direction so as to avoid suspicion. But Officer Urraro testified at the hearing on the motion to suppress that he was a distance away from the car when it pulled into the driveway. What he saw could not lead him reasonably to conclude that the action taken by appellants was in response to sighting his patrol car and that criminal activity was afoot. The facts here are unlike those presented in Commonwealth v. Pegram, supra, and Commonwealth v. Meadows, supra, where police officers were close enough to see that the defendants’ actions, flight in one case and stepping out of sight in the other, were responses to spying the officers. Moreover, appellants’ conduct was too consistent with normal behavior for it to be labeled “suspicious” without other facts.
The judgment of sentence should be reversed and the ease remanded for a new trial.
The house was the home oí the parents of one of appellants, Donald Vincent Murray.
Appellants maintain that the car pulled into the driveway in order to pick up appellant Murray whose parents own the house.