dissenting:
I dissent because in my determination the warrantless search of appellee’s vehicle was unconstitutional. The majority justifies the search of the automobile on the basis of the “plain smell” of marijuana, in an analogy with the doctrine of “plain view.” The majority reasons that the police were justified in being where they were, and that the odor of marijuana was sufficient to establish probable cause for a warrantless search.
There is no argument that the police were legitimately pursuing their duties in patrolling the parking lot for loiterers. There is also no argument that appellee was not a loiterer in the lot. He was seated in a legally parked vehicle. The police approached the vehicle, which was parked at the far side of the parking lot from them, before any odor of an illegal substance had been detected. At trial, this initial approach, and its justification, were described thus:
Q. Now, did you speak with the persons in that vehicle?
*417A. I approached the vehicle, and, as I approached the vehicle, I saw the defendant and the other person seated in the passenger seat bent over what appeared to be stuffing something down at, in—
MR. COOPER: Objection
A. —the lower part of the seat.
THE COURT: Well, it is a conclusion, yes. N.T. 10
Appellant now argues that this “furtive behavior” and the “plain smell” of marijuana justified the search, but no where in the record, and certainly not in the portion quoted above has appellant established a legitimate basis for the original approach.
I submit that “furtive behavior” to justify a police stop and search must be something more than bending forward while seated in a parked car. Appellee’s movement does not constitute “such unusual and suspicious conduct ... that the policeman may reasonably conclude that criminal activity may be afoot____”. Commonwealth v. Barnett, 484 Pa. 211, 215, 398 A.2d 1019, 1021 (1979), quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342-3 (1970).
I find an instructive distinction between the situation in this case and two recent cases decided by our Court concerned with motions to suppress evidence seized from cars in parking lots. In Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983), we reiterated the rule that an officer who lacks probable cause for arrest may nevertheless detain a person for questioning if the officer has a reasonable suspicion that a crime has occurred, or was occurring. In that case, also involving a public parking place, we upheld the police action and denied a motion to suppress seized evidence. In Evans, the police observed the car come to a sudden stop, in the driving lane of the parking lot, saw the driver and passenger depart suddenly in opposite directions, and observed that one of them threw a screwdriver under the car while departing. That officer was justified in approaching the defendant and asking him what he intended to do with the car.
*418Similarly, in Commonwealth v. Benedetto, 316 Pa.Super. 134,- 462 A.2d 830 (1983) the police officer approached the car because he observed a man whom he had known for sixteen years pull into a parking lot in a heavily damaged car. Concerned about the driver’s safety, the officer approached to ask him if assistance was needed. We found that reasonable behavior under the circumstances.
In the instant case, I do not believe the police had a valid reason to approach the car in the first instance. Nothing unusual giving rise to a suspicion of probable cause, or giving rise to a conclusion the police services were necessary had occurred. When they did approach the car, the police’s claim of furtive behavior on the part of the occupants giving rise to probable cause does not stand the test. The police placed themselves in an investigative posture that can not lawfully be supported. They therefore can not justify their action on the basis of the doctrine of plain smell. They cannot piggy back an unlawful action onto a lawful one in order to make the search lawful.
The “plain view” doctrine was elaborated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) where the Supreme Court wrote:
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. (At 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583) (emphasis added).
The first and most fundamental prerequisite to reliance upon “plain view” is that the initial intrusion which brings the police within the plain view of the article is itself lawful. “The ‘plain view doctrine’ is applicable only where the *419officer has a right to be in the position to have that view.” Commonwealth v. Murray, 460 Pa. 53, 59, 331 A.2d 414, 417 (1975). So too with “plain smell.”
In Commonwealth v. Stoner, 236 Pa.Super. 161, 166, 344 A.2d 633, 635 (1975) this Court quoted United States v. Curran, 498 F.2d 30, 33 (9th Cir.1974):
“The government touches upon the theory sometimes advanced that the courts should acknowledge a ‘plain smell’ concept analogous to that of plain sight____ However, before the officer could rely upon his smelling marijuana as probable cause, he would have to justify his presence at the place ... where he detected the odor, just as he would have to justify his presence at the place from which he saw the contraband in order to rely on the doctrine of plain view.” (236 Pa.Superior Ct. 166, 344 A.2d at 635).
Since I am unconvinced that the police were constitutionally questioning the occupants of the legally parked vehicle, I am unable to apply the “plain view/plain smell” analogy to these facts.
Certainly police officers may rely upon their sense of smell in deciding whether burning marijuana is present. But odors alone do not authorize a search without a warrant. Pennsylvania cases which have incorporated the “plain smell” doctrine make this point clear. In Stoner, supra, the police stopped a moving vehicle for a traffic violation and observed a .38 calibre weapon fall out of the glove compartment when the occupant of the car was producing the registration card. The odor of marijuana was detected after the suspects had been placed under arrest, and was the justification for a subsequent more extensive search of the car. The other cases cited by the majority to support the car search emphasize the same application of the doctrine. In Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226, 1227 (1982) the police were investigating a raucous party in an apartment building, and smelled the odor of burning marijuana when they knocked on the door. When the door to the apartment was opened, drug paraphernialia and marijuana cigarettes were found in *420plain view. In Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982) the police were searching for two truant juveniles, both known to them. An officer recognized one of the juveniles, approached him, and simultaneously smelled burning marijuana and observed a pipe stem in plain view in one of the truant’s pockets.
In addition to these cases cited by the majority, Commonwealth v. Duett, 305 Pa.Super. 431, 451 A.2d 724 (1982) illustrates the same concept. Police stopped an automobile for making an illegal turn. When the driver rolled down the window, the officer detected the odor of burning marijuana and saw a partially full bottle of wine in plain view on the floor of the car. The driver, under the age of twenty-one, was cited for under-age drinking. The police also saw a bag on the front seat of the car which contained marijuana. We held that the police had legitimately stopped the automobile and were justified in searching the vehicle for further contraband.
In the instant case, there was no traffic violation, no disturbance of the peace, nor any observed behavior which was inconsistent with an innocent presence in the parking lot. I agree with the lower court that the police lacked probable cause for the search of the vehicle, and I would therefore affirm the order granting the motion to suppress the seized evidence.