Com. v. Benson

• Decision Date: 29 March 1976
• Citation: 361 A.2d 695,239 Pa.Super. 100
• Parties: COMMONWEALTH of Pennsylvania v. Jesse BENSON, Appellant.
• Court: Pennsylvania Superior Court

Page 695

361 A.2d 695

239 Pa.Super. 100

COMMONWEALTH of Pennsylvania v. Jesse BENSON, Appellant.

Superior Court of Pennsylvania.

March 29, 1976.

Petition for Allowance of Appeal Granted July 15, 1976.

John W. Packel, Asst. Pub. Defender, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief Appeals Div., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge:

On December 1, 1974, at approximately 9:20 A.M., Officer Craig Baker of the Philadelphia Police Force received a Police Department radio report advising him to be on the lookout for a dark-skinned Negro male, approximately 6 feet tall, in a brown leather coat, driving a late-model dark green Ford station wagon with the first two numbers of the license plate 4 and 0. The suspect was wanted for investigation in the possible sale of guns and a check-writing machine. One hour after hearing the report, Officer Baker stopped Jesse Benson, appellant in this case. Appellant was wearing a brown leather coat, and was driving a late-model dark green Ford station wagon with a license plate with the first two numbers 4 and 0. When Officer Baker asked to see appellant's owner's card and driver's license, appellant replied that he did not have a driver's license and that he did not have the owner's card for the car. Officer Baker testified that he was unable to radio in to the station to find out if the car had been stolen since the computer was down at the time; furthermore, Officer Baker was unable to rely on the latest 'hot sheet', since the sheets were not published on weekends.

Acting reasonably under the circumstances, Officer Baker took appellant into custody for transportation to the police station. After placing appellant in the police wagon, and before leaving for the station, Officer Baker looked in the back seat of the station wagon which appellant had been driving, and discovered, under a green mat or old rug, a check-writing machine.

After arrival at the police station, an investigation disclosed that the Ford station wagon had been stolen sometime between 6:45 and 10:30 the previous evening. Appellant was charged with theft of the auto, unauthorized use of the auto, and with receiving stolen goods.

Appellant moved to suppress all evidence discovered as the result of his allegedly-illegal arrest. A hearing on the suppression motion was held on April 3, 1975, at which time the motion was denied. Officer Baker was the only witness to testify at this hearing. Appellant was tried by a judge sitting without a jury immediately following the denial of the suppression motion. The judge found appellant guilty of theft, unauthorized use of an auto, and receiving stolen property, and sentenced appellant to 5 years probation. Appellant appealed from the judgment of sentence, arguing that the evidence of his possession of the automobile should have been suppressed as fruit of an unlawful arrest, since the Commonwealth allegedly 'failed to satisfy its burden of establishing probable cause for transmitting the police radio bulletin which prompted the arrest.'

Appellant relies on the U.S. Supreme Court case of Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), as support for his argument. In Whiteley, a warrant had been issued for the arrest of specific named individuals, and a police officer stopped a car with the object of arresting those individuals. The information which the arresting officer relied upon was based on information supplied for the warrant by an unnamed informer, and the Supreme Court specifically found that the warrant was not based on sufficient probable cause. The Court went on to say however (at 567, 91 S.Ct. at 1036), that 'where the initial impetus for an arrest is an informer's tip, information Gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone.' (Emphasis added). The Court found that there was no such new information obtained by the arresting officer, and reversed the denial of the suppression motion. The implication is that police may rely upon information which is broadcast over the police radio in order to justify an initial stop of an automobile suspected of having been involved in criminal activity. The arrest of persons thus stopped can then be justified either by demonstrating that probable cause existed for the issuance of the police bulletin, ¹ or by showing that information obtained during the stop by the arresting officers gave rise to probable cause for an arrest. In Whiteley, there was no probable cause for the issuance of the warrant (and, consequently, no probable cause for the police bulletin), and there was no new information disclosed by the stop. The Supreme Court therefore reversed. In the case before us, new information--inability of the driver to produce a driver's license or owner's card--came to light at the time of the stop, and this information was sufficient to justify Officer Baker's action in taking appellant to the police station.

In Commonwealth v. Brown, 228 Pa.Super. 158, 323 A.2d 104 (1974), police officers who had been informed that a certain individual had just engaged in selling narcotics, stopped a car in which that person was riding, and saw him drop two silver-colored packets to the ground. Our Court reversed the grant of a motion to suppress the fruits of that stop, holding that the police initially did not have probable cause to effect an arrest, but that subsequent events (appellant's attempt to dispose of the narcotics) did justify the arrest. The situation in Brown was essentially the same as the situation now before us--there was initially no probable cause (at least none demonstrated at the suppression hearing) for an arrest, but events at the time of the stop justified an arrest. In Brown, the only person to testify at the suppression hearing was one of the arresting officers, and his testimony was ambiguous as to whether he himself, or officers out of that officer's presence, had received the information (the tip) which might have constituted probable cause. (In any event, we held that probable cause was lacking). In the case before us, the only witness to testify at the suppression hearing was Officer Baker, the arresting officer, who, as only the recipient of the bulletin, was unable to demonstrate probable cause for the issuance of the police bulletin. Both in Brown and in the case before us, new information became available to the police at the time of the stop: in Brown, silver-colored packets that fell to the ground; in our case, inability of the driver to produce a driver's license or owner's card.

A second case very similar to the one before us is Commonwealth v. Boyer, 236 Pa.Super. 214, 345 A.2d 187 (1975). In Boyer, State Police Officers on turnpike patrol received radio instructions to be on the lookout for a 'white-over-black' Cadillac suspected of transporting heroin between Philadelphia and Harrisburg. The officers observed what they thought was a white-over-black Cadillac convertible enter the Harrisburg East interchange and, pursuant to the radio bulletin, stopped the car for investigation. On approaching the car, the officers noticed that it actually was white over Dark blue. When one of the officers shined his flashlight inside the car, he noticed that one of the passengers was attempting to hide something, and that there appeared to be glassine packets in that passenger's right hand. Further investigation disclosed packages of heroin. Appellant (the driver) and the two passengers were arrested, tried, and found guilty of possession of narcotics. Our Court, relying on Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), reversed the lower court's denial of a suppression motion.

We find that neither Swanger nor Boyer is controlling in the case before us. In Swanger, our Supreme Court reversed the lower court's denial of a suppression motion, since the police had stopped a vehicle for merely a 'routine' check, 'even though the officers observed nothing unusual about the vehicle beforehand.' Boyer is distinguishable in the sparsity of information that was available to the arresting officers, who only knew that a certain color Cadillac was suspected of transporting heroin between Philadelphia and Harrisburg. Whether or not such information alone might have justified an investigatory stop, the fact that the car was a different color precluded a majority of our Court from affirming the denial of the suppression motion. In Boyer, the police were not justified in believing that appellant was engaging in criminal activity, and the stop and subsequent discovery of narcotics was therefore illegal. Brown, not Boyer, is controlling in the case before us.

In the 1972 Supreme Court case Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, Justice Rehnquist, expressing the view of six members of that Court stated:

'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' 407 U.S. at 145--46, 92 S.Ct. at 1923.

This language is consistent with Whiteley, and forms a logical basis for the decision we reached in Brown. We should permit our police in the early stage of their investigative work (before a warrant has been issued for specific individuals), to adopt the ...