Commonwealth v. Lana

GRACI, J.,

Concurring.

¶ 1 On this record, I agree that we are constrained to vacate the order denying Appellant’s motion to suppress.

¶ 2 The stop of Appellant’s vehicle was based on neither probable cause that the Motor Vehicle Code had been violated, Commonwealth v. Battaglia, 802 A.2d 652 (Pa.Super.2002); Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 988 (2001); Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995),4 nor a reasonable suspicion that some non-Vehicle Code criminal activity was afoot. Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa.Super.2001) (en banc). The arresting officer said he was investigating a possible DUI. Though the stop of Appellant’s vehicle occurred in what the officer described as a high crime or high drug, area, he did not articulate any facts raising a suspicion that criminal activity was afoot. Instead, the “fact” that this was a high crime or high drug area was, according to the officer, his reason for opining that Appellant was possibly driving under the influence. The unlawful stop resulted in the discovery of the packet of cocaine.5 Accordingly, cocaine should have been suppressed as the fruit of the unlawful stop. Commonwealth v. Keller, 823 A.2d 1004, 1011-12 (Pa.Super.2003).

¶ 3 For these reasons, I join the majority’s disposition.

. While I believe that Gleason and Whitmyer were wrongly decided based on a misreading of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), I recognize that we are bound to effectuate the decisional law of the Supreme Court. Commonwealth v. Busch, 713 A.2d 97 (Pa.Super.1998). Here, the record does not establish probable cause for a Vehicle Code violation justifying the stop of Appellant’s car.

. Given my determination that the initial stop was unlawful, I find it unnecessary to address the propriety of the "frisk” and the officer's request that Appellant remove the item from his pocket. See Commonwealth v. Reppert, 814 A.2d 1196, 1212-13 (Pa.Super.2002) (en banc) (Graci, J., concurring) (discussing permissible limits of Terry frisk).