The opinion
Dissenting Opinion by
Hoffman, J.:
I agree with the Majority that the arresting officers had the right to stop the appellant’s automobile on the basis of the radio call. I would hold, however, that when the underlying basis for the radio bulletin is not established, an otherwise illegal stop cannot be insulated from challenge merely because the arresting officer relied on the radio call.
The Majority relies on Whiteley v. Warden, 401 U.S. 560, 567 (1971), to support its holding: "... where the initial impetus for an arrest is an informer’s tip, information gathered by the arresting officers can be *109 used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone.” The Majority then states that Whiteley implies “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, or by showing that information obtained during the stop by the arresting officers gave rise to probable cause for an arrest.” (Footnote omitted). (Emphasis supplied). (Majority opinion at 104).
The Majority, however, misapplies Whiteley . In Whiteley , the State of Wyoming asserted two separate justifications for the arrest of the appellant: that the arresting officers independently possessed probable cause to arrest, or in the alternative, that the officers relied on a police radio call. The statement relied upon by the Majority does not refer to the radio call, but to the assertion of independent probable cause. Regarding independent probable cause, the Supreme Court noted that the tip alone was not independently reliable. If information could be obtained to “support either the reliability of the informant or the informant’s conclusion that these men were connected with the crime”, the arresting officers would have possessed independent probable cause to arrest. Whiteley v. Warden, supra, at 567. This information, however, must be obtained before the officers infringe upon the accused’s Fourth Amendment rights. See Spinelli v. United States, 393 U.S. 410 (1969). An infringement of Fourth Amendment freedoms cannot be justified by information obtained after the accused’s rights have been violated.
Regarding the arresting officers’ reliance on the radio bulletin, the Court stated: “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police *110 officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal -arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Whiteley v. Warden, supra, at 568. Thus Whiteley supports two means of upholding the arrest: the arresting officers must possess independent probable cause, or the radio call upon which the arrest is based must be supported by probable cause.
The Pennsylvania authority cited by the Majority further demonstrates its confusion regarding Whiteley . In Commonwealth v. Brown, 228 Pa. Superior Ct. 158 , 323 A.2d 104 (1974), the arresting officer personally received information from an informant that the appellant had been selling drugs. Because the reliability of the informant was not established, we held that probable cause was absent. However, the tip, together with the officer’s personal observations corroborating part of the tip, supplied reasonable suspicion that criminal activity was afoot. Thus, the officer acted properly in stopping the automobile in which the appellant was riding. In Brown , therefore, the arresting officer independently had sufficient cause to stop the car.
In Commonwealth v. Boyer, 236 Pa. Superior Ct. 214 , 345 A.2d 187 (1975), on the other hand, the officer did not independently have sufficient cause to stop the car. Thus, the only basis on which to support the arrest was a teletype bulletin. Because the information contained in the teletype bulletin was not proven to be reliable, we held the arrest improper. In Boyer , therefore, the arresting officer acted on the strength of an unreliable teletype bulletin, and we held the arrest illegal.
In the instant case, it cannot seriously be argued that the arresting officer independently had cause to stop the *111 car. Thus, the stop must be justified on the basis of the radio bulletin. At the suppression hearing, however, the only witness to testify was the arresting officer who did not know the basis for the radio call. There being no underlying basis shown for the radio call, the initial stop of the appellant’s automobile necessarily was illegal. The stop cannot be justified by information obtained subsequent to the stop. Under the Majority’s rationale, however, officers without reasonable suspicion to stop a suspect can issue a radio call and have other officers stop the suspect. The stopping officers would then be able to obtain sufficient information to justify the stop. This has never been the law.
Spaeth, J., joins in this dissenting opinion.