Com. v. Luv

• Decision Date: 22 July 1999
• Citation: 557 Pa. 570,735 A.2d 87
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Darryl LUV, Appellant.
• Court: Pennsylvania Supreme Court

735 A.2d 87

557 Pa. 570

COMMONWEALTH of Pennsylvania, Appellee, v. Darryl LUV, Appellant.

Supreme Court of Pennsylvania.

Argued October 21, 1998.

Decided July 22, 1999.

John R. Sobota, Assistant Public Defender, Basil G. Russin, Public Defender, for appellant.

Peter Paul Olszewski, Jr., D.A., Frank P. Barletta, Asst. D.A., for appellees.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

FLAHERTY, Chief Justice.

Following a bench trial, appellant Daryl Luv was convicted of possession of cocaine and possession with intent to deliver.¹ He was sentenced to five to ten years incarceration and fined thirty thousand dollars. The superior court affirmed without dissent. We granted allocatur to determine whether probable existed to stop and search Luv's vehicle without a warrant.

In the course of an ongoing investigation, the Wilkes-Barre police department requested and obtained a search warrant for appellant's residence. Probable cause for the warrant was based upon surveillance, complaints from neighbors, and information from a confidential informant who had made a controlled buy from Luv at Luv's residence the day before the warrant was issued. This informant had worked with the Wilkes-Barre police in the past and been proven reliable.

On the day the warrant to search Luv's home was issued, Sergeant Coffay, acting on the informant's tip that Luv would be carrying a supplemental supply of drugs, was waiting with a team of Wilkes-Barre police officers for Luv to arrive at his residence. Meanwhile, the informant contacted the police department in order to inform Coffay that Luv had changed his plans and was now at his girlfriend's residence and would be transporting the drugs to a local nightclub for distribution. Captain Maguire contacted Coffay, who relocated to the girlfriend's address where he observed Luv's parked vehicle, and directed Coffay to obtain a new search warrant for Luv's car. As Maguire arrived on the scene, and before a new warrant was obtained, Luv and his girlfriend were observed leaving her residence and departing in Luv's car. Knowing it would take at least an hour to get a new warrant and faced with Luv's immediate departure enroute to the nightclub to sell the drugs, the officers stopped and searched Luv and his car. The search revealed a large quantity of cocaine under the driver's seat and Luv was arrested and charged.

Pretrial motions to suppress evidence and to disclose the confidential informant were denied. Following a bench trial, Luv was convicted and sentenced. In a memorandum opinion, Superior Court unanimously affirmed the trial court's decision and we granted allocatur to decide whether this warrantless search was proper. Appellant claims that the tip from the confidential informant was an insufficient ground upon which to base probable cause for the police to stop and search his vehicle and that a search warrant was required.

He claims that the testimony adduced at trial does not indicate that the informant possessed a sufficient basis of knowledge to give rise to the reasonable suspicion necessary for an investigatory stop, let alone the probable cause necessary to effect an arrest. He cites an exchange in which a police officer testified that the informant never claimed to have observed any drugs in the car and could not recall whether the informant had spoken with appellant in person or on the phone. He also alleges that the informant was unreliable; however, he offers no evidence in support of this allegation. Nevertheless, he argues that the evidence resulting from this search should have been suppressed.

The standard when this court reviews a suppression motion is that we must first determine whether the factual findings are supported by the record, and then determine whether the inferences and legal conclusions drawn from those findings are reasonable. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997). We may consider the evidence of the witnesses offered by the prosecution, as verdict winner, and only so much of the defense evidence that remains uncontradicted when read in the context of the record as a whole. Id. at 197. We are bound by facts supported by the record and may only reverse if the legal conclusions reached by the court below were erroneous. Id.

Forcible stops of vehicles by police constitute seizures and are subject to constitutional constraints including the necessity of probable cause. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). "Probable cause exists where the facts and circumstances within the officers' knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994) (citing Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967)). With respect to probable cause, this court adopted a "totality of the circumstances" analysis in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985) (relying on Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). "The totality of the circumstances test dictates that we consider all relevant facts, when deciding whether the warrantless arrest was justified by probable cause." In re O.A., 552 Pa. 666, 717 A.2d 490, 495 (1998) (citing Commonwealth v. Evans, 546 Pa. 417, 685 A.2d 535 (1996)).

Finally, information received from confidential informants may properly form the basis of a probable cause determination. Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469 (1987) (citing Gray, supra). A determination of probable cause based upon information received from a confidential informant depends upon the informant's reliability and basis of knowledge viewed in a common sense, non-technical manner. Id. at 472 (citing Gray, supra). An informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. In re J.H., 424 Pa.Super. 224, 622 A.2d 351, 353 (1993). See also Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114 (1995).

While these principles appear to be straightforward, this court has had difficulty reaching a consensus on how they should be applied in circumstances similar to those presented by appellant. For example, in In re O.A., supra, we held that an informant's tip, without independent corroboration by police, was insufficient to establish probable cause. In that case, the police received a tip from a reliable confidential informant that two individuals were selling drugs from an abandoned garage. The informant told police that he had seen O.A. with drugs for sale in his possession and described him as a "tall, dark-skinned male in his late teens ... wearing a long black windbreaker and shorts ... accompanied by an Hispanic male...." 717 A.2d at 493. The police arrived at the garage shortly after they received the tip, but did not observe any drug activity. When the police entered the garage, they observed eight males, mostly Hispanic, one of whom matched the description given by the informant and turned out to be O.A. The police searched this male and seized a quantity of marijuana. The police did not have a warrant to either search or arrest O.A. and were not involved in any investigation of O.A. in particular when these events occurred; rather, they had responded to an unsubstantiated and uncorroborated tip.

In a plurality opinion, we held that this search was improper and reversed O.A.'s delinquency adjudication and remanded for further proceedings. Id. at 499. In the opinion announcing the judgment of the court, we wrote that "an assertion by a police officer as to an informant's reliability with no objective facts to substantiate his assertion is [in]sufficient to support a finding of probable cause." Id. at 496. Similarly, in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), we held a warrantless search of an automobile, in the absence of probable cause in conjunction with exigent circumstances, to be improper.

In White, police received anonymous tips that identified White and another man as drug dealers. A confidential informant confirmed the information and described the second man's car and their method of delivering drugs. The police conducted a controlled purchase of cocaine using the confidential informant, and identified White as the seller. Approximately a month later, the informant informed police that the second man told him that he would be selling cocaine that weekend and the drugs were being moved between his residence and White's. The informant also stated that he had seen a large amount of cocaine in the second man's house. Acting on this information, the police secured search warrants for the second man's residence, vehicle, and person, as well as for White's residence and person, but not his vehicle. In the course of the subsequent stakeout, White drove his vehicle into the area and an unidentified man entered the vehicle. Simultaneously, the second man arrived on the scene and drove by White's vehicle several times before departing. Police then stopped White's vehicle and searched it. Upon discovering a marijuana cigarette and a bag of cocaine, the police arrested White and his passenger.

The trial court suppressed the evidence on the grounds that White was not arrested until after the warrantless search, that there were no exigent circumstances to justify the warrantless search, and that the police had sufficient time to secure a search warrant for the vehicle since they received the pertinent information at least thirty-six hours prior to the search. Superior Court reversed, holding that a warrant was not required both because probable cause existed to search the vehicle and the search fell...