On March 2, 1976, appellant Gerald Kelly was found guilty in the Municipal Court of Philadelphia of possessing a controlled substance.
At approximately 9:00 p.m. on November 8, 1975, Officers William Atwell and Francis Czarnecki of the Philadelphia Police Department were patrolling their assigned district in a patrol wagon. At the intersection of Fifty-fifth and Pine Streets, the officers observed an automobile being operated with an expired inspection sticker. The patrol wagon's spotlight and emergency dome lights were activated, and the vehicle under observation pulled to the curb. Appellant, the driver of the car, got out and began walking back toward the officers. He handed his driver's license and registration certificate to Officer Czarnecki.
Two other individuals occupied the vehicle, one in the front passenger's seat and one in the back. Officer Atwell proceeded to the front passenger's door and directed the beam of his flashlight into the front seat of the vehicle. The light illuminated a small amber vial, with a white plastic cap, containing nine silver foil packets, between the passenger's seat and the driver's seat. The vial had a Sun Ray Drug label and appellant's name on it.
Officer Atwell reached through the open passenger's window, obtained the plastic vial, and displayed it to Officer Czarnecki. Appellant was placed under arrest and taken to the eighteenth district police station. There, a search of appellant yielded a manila envelope containing three more foil packets. The three packets from the manila envelope and five of the nine packets from the vial were later determined to contain methamphetamine, a controlled substance.
Second, appellant contends that the writ of certiorari should have been granted because evidence seized in an illegal arrest was admitted at his trial. However, the arrest in this case was not illegal. The officers in this case had reason to stop appellant's car. Thus, this case is distinguishable from Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), which forbids routine stops. Similarly, Commonwealth v. Santiago, 220 Pa.Super. 111, 283 A.2d 709 (1971), is distinguishable because in that case, the circumstances surrounding the initial police-citizen contact did not give the police officer reason to pursue the defendant and ultimately to find the controlled substance. In this case, the police officers were clearly correct in stopping appellant.
Appellant vigorously argues that Officer Atwell acted improperly when he peered into appellant's car with a flashlight. We held to the contrary in Commonwealth v. DeJesus, 226 Pa.Super. 79, 310 A.2d 323 (1973). Therefore, the officer did not act improperly in discovering the contraband
The order of the lower court is affirmed.
HOFFMAN, J., files a dissenting opinion in which JACOBS and SPAETH, JJ., join.
HOFFMAN, Judge, dissenting:
I dissent because I believe that the police lacked probable cause to search appellant's automobile.
The parties essentially agree to the facts surrounding the contested search: at about 9:00 p.m., on November 8, 1975, two police officers on patrol in West Philadelphia observed that appellant's automobile had an expired inspection sticker. The driver of the police van made a U-turn on Pine Street and stopped the 1965 Chevrolet. Appellant got out of his vehicle and approached the police van. While one officer prepared a citation, the other officer approached the parked Chevrolet and shined a flashlight into the car. He observed on the front seat an amber vial with a typed prescription label. According to the officer, "it appeared to be aluminum foil packets." He seized the vial which contained nine packets of what the police believed to be heroin.
Appellant was charged with possession of a controlled substance. The Controlled Substance, Drug, Device and Cosmetic Act, 1972, April 14, P.L. 233, No. 64, § 1 et seq.; 35 P.S. § 780-113(a)(16). On March 2, 1976, appellant moved to suppress the 9 packets of methamphetamine in the vial and 3 additional packets taken from his pocket after his arrest. After denial of the motion, the court found appellant guilty and sentenced him to a one year term of probation. Subsequently, appellant petitioned for a writ of certiorari in the Philadelphia County Court of Common Pleas. This appeal followed the denial of that writ on May 12, 1976.
In the instant case, the officer could plainly see an amber vial with a typed prescription label. That fact did not give him probable cause to seize the vial. See Commonwealth v. Phillips, supra. Further, even if he could discern silver foil packets and conclude that they were not pills, we held in Santiago that possession of two small packets, without more, simply does not amount to probable cause.
Because the seizure of the drugs was illegal, I would vacate the judgment of sentence and remand for a new trial.
JACOBS and SPAETH, JJ., join in this dissenting opinion.