On September 26, 1972, Pennsylvania State Trooper Stabs received a message from police officer Fox, of the Myerstown Borough Police Department. Fox related to Stabs that Edwin Houtz, of Myerstown, who was in the military service, had been reported AWOL and further that Fox had received a telephone call that Houtz was sitting on a porch one-half mile outside the Borough of Myerstown. This is beyond the jurisdiction of the officer and Stabs was enlisted to apprehend Houtz.
Both officers proceeded to the location where Houtz
Unquestionably, Officer Stabs had authority to arrest Houtz for the offense of being absent from the military service without leave. AWOL is a criminal offense under the Uniform Code of Military Justice, 10 U. S. C. §886, 70 A. Stat. 67. Furthermore, the Uniform Code of Military Justice, 10 U. S. C. §808, 70 A. Stat. 40, grants civilian police officers the authority to summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces. We believe defendant’s contention that the police officer had the right to summarily arrest for desertion, but not for being AWOL is meritless. Of course, all deserters are AWOL while not all soldiers AWOL are deserters. The fine distinction is not to be made by the police officer who apprehends the missing soldier on the highway but by the appropriate courts of military justice.
Thus, having authority to apprehend Houtz without a warrant, we are of the opinion that the officer had the equal right to stop and frisk Houtz for his own protection: Terry v. Ohio, 392 U. S. 1 (1968); Commonwealth v. Hicks, 434 Pa. 153 (1969).
In patting down Houtz, Officer Stabs felt an object
After consideration, we make the following
ORDER
And now, to wit, July 2, 1974, defendant’s pretrial application to suppress evidence is refused.
