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.1 Appellant was then arrested.
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.
*127I believe that the seizure of the amber vial was illegal. Initially, I agree with the Commonwealth’s contention that the stop of appellant’s car was legal because it was based on a violation of The Vehicle Code, 1972, January 10, P.L. 665 (1971), No. 177, § 1 et seq.; as amended; 75 Pa.C.S. § 834. See also, Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). In addition, if an officer is legally positioned when he views contraband, the plain view doctrine provides legal justification for a seizure of the item. Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973). We have held that the plain view doctrine applies even when an officer uses a flashlight to illuminate his view. Commonwealth v. Clelland, 227 Pa.Super. 384, 323 A.2d 60 (1974); Commonwealth v. DeJesus, 226 Pa.Super. 79, 310 A.2d 323 (1973). However, the foregoing principles do not exempt the police from the requirement of probable cause. That is, the officer must recognize the illuminated item as contraband before he can seize it. Commonwealth v. Phillips, 225 Pa.Super. 126, 310 A.2d 290 (1973); Commonwealth v. Santiago, 220 Pa.Super. 111, 283 A.2d 709 (1971). In Commonwealth v. Phillips, supra, after the arresting officer made a traffic stop, he noticed “. . . a long smoking pipe jutting out from under the passenger’s seat. . . . [T]he officer concluded from its appearance that the pipe was a ‘hash’ pipe . . . 225 Pa.Super. at 128, 310 A.2d at 290. We held that the officer’s observations did not amount to probable cause. “The officer’s linking of the pipe with illicit activity could not have been more than a suspicion, since such pipes can be used to smoke tobacco or hashish or just for ornamentation. It is well established that ‘even “strong reason to suspect” will not adequately substitute for probable cause as grounds for an arrest or search.’ Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968).” 225 Pa.Super. at 128, 310 A.2d at 291. Similarly, in Commonwealth v. Santiago, supra, the arresting officer observed appellant, a known drug user, with two silver packets in his hand. In addition, Santiago fled when approached by the officer. This Court *128(per Jacobs, J.) concluded that those factors did not justify an arrest.
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.. In fact, the chemical analysis stipulated to at trial by appellant indicated that the substance was methamphetamine.