Com. v. Ogborne

• Citation: 599 A.2d 656,410 Pa.Super. 164
• Parties: COMMONWEALTH of Pennsylvania v. Carl Franz OGBORNE, Appellant.
• Decision Date: 30 December 1991
• Court: Pennsylvania Superior Court

Page 656

599 A.2d 656

410 Pa.Super. 164

COMMONWEALTH of Pennsylvania v. Carl Franz OGBORNE, Appellant.

Superior Court of Pennsylvania.

Argued November 1, 1988.

Filed Oct. 21, 1991.

Reargument Denied Dec. 30, 1991.

F. Kirk Adams, Media, for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellee.

Before CAVANAUGH, TAMILIA and POPOVICH, JJ.

TAMILIA, Judge:

Carl Franz Ogborne appeals from judgment of sentence imposed May 13, 1988. Following a nonjury trial, appellant was convicted of possession of a controlled substance ¹ and possession with intent to deliver a controlled substance, ² and sentenced to a term of two and one-half to five years imprisonment. On direct appeal, this Court reversed the judgment of sentence holding:

[P]olice may not conduct a valid investigative stop based solely on a confidential informant's isolated and uncorroborated allegation that a particular individual is in possession of drugs.... [I]n the absence of exigent circumstance, admittedly not present here, unsupported allegations by informants that certain individuals possess drugs which do not rise to the level of probable cause for a search warrant, may not be utilized by the police five (5) hours later to justify an investigative stop on a person's private property.

Commonwealth v. Ogborne, 384 Pa.Super. 604, 611-12, 559 A.2d 931, 935 (1989) (Tamilia, J., dissenting), reargument denied, July 10, 1989. Although allocatur was initially granted by the Pennsylvania Supreme Court, Commonwealth v. Ogborne, 524 Pa. 626, 574 A.2d 68 (1990), the appeal was later dismissed as being improvidently granted. Commonwealth v. Ogborne, 525 Pa. 570, 583 A.2d 789 (1991). This case is again before this Court upon remand from the United States Supreme Court, which vacated this Court's previous decision for further consideration in light of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Pennsylvania v. Ogborne, 499 U.S. 944, 111 S.Ct. 1408, 113 L.Ed.2d 462 (1991).

Once again, the sole issue preserved for appeal is whether the police conducted a valid investigatory stop, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to justify their subsequent search and seizure. With the guidance of White, we find no distinction between that case and this one, and we now affirm the judgment of sentence.

In the early evening hours of January 15, 1987, Detective Glenn Greenwalt of the Delaware County Criminal Investigation Division returned a telephone call to a confidential informant. The informant had been reliable in the past and had given information which resulted in arrests and convictions dealing with narcotics within Delaware County within the previous year. Based on personal knowledge, the informant advised Greenwalt appellant would be returning from Philadelphia to the 100 block of Saude Avenue, Tinicum Township within a few hours driving a new, black Dodge Daytona, and would have in his possession approximately ten bundles of phencyclidine ("PCP").

Detective Greenwalt knew appellant from previous investigations of possession and distribution of PCP in 1981 and 1985. He telephoned Tinicum Township police and confirmed appellant and his wife resided at 115 Saude Avenue and a black Dodge Daytona frequently was parked in front of that residence. ³ Police then established surveillance of the 100 block of Saude Avenue. At approximately 11:20 p.m., the police observed a new, black Dodge Daytona turn onto Saude Avenue heading toward appellant's residence. As Detective Greenwalt approached the vehicle, it turned into the driveway of 115 Saude Avenue and Detective Greenwalt recognized the driver as appellant. Detective Greenwalt's unmarked police car, followed by another unmarked police car and patrol car, pulled into the driveway behind appellant's vehicle and activated its red flashing dashboard lights. Detective Greenwalt approached the vehicle, whose engine was still running, and tapped on the driver's window, displaying his badge and identifying himself as a police officer. Despite repeated requests, appellant did not turn off the car motor until Detective Greenwalt began to open the driver's door. Upon opening the door, Detective Greenwalt detected the odor of PCP within the vehicle and asked appellant to step out of the car. A "pat down" search of appellant outside the car disclosed approximately 89 packets of PCP, and a subsequent search of his vehicle resulted in the discovery of a small amount of PCP. This evidence was the basis for the charges filed against appellant.

The basis of the Terry rule determines the reasonableness of the search by balancing the need to search against the invasion which the search entails, requiring the police to justify the particular intrusion by pointing to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id. at 21, 88 S.Ct. at 1879-80, 20 L.Ed.2d at 905-06.

[Pursuant to Terry,] certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.... [R]easonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.... [T]emporary detention for questioning on less than probable cause [is justified] where the public interest involved is the suppression of illegal transactions in drugs or of any other serious crime....

Florida v. Royer, 460 U.S. 491, 497-99, 103 S.Ct. 1319, 1323-25, 75 L.Ed.2d 229, 237 (1983); Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

While the threshold for establishing probable cause is necessarily higher than for establishing a reasonable suspicion, it is not inappropriate to apply the same benchmark to both determinations. In Pennsylvania, our Supreme Court has adopted the "totality of the circumstances" test set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). This places Pennsylvania in conformity with White, where it was held:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quantity and quality--are considered in the "totality of the circumstances--the whole picture" that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Id. at 2416, 110 L.Ed.2d at 309 (citation omitted).

In this case, Detective Greenwalt received specific information from a reliable informant with personal knowledge of appellant's return time to his home in Delaware County from Philadelphia in a specific make and model of automobile and carrying bundles of PCP. The detective's subsequent investigation corroborated much of this information, and it was confirmed by the arrival of the described vehicle at the time and place indicated.

[B]ecause an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to conclude ... that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.

Id. at 2417, 110 L.Ed.2d at 310.

Applying White to this case, we find the information presented to Detective Greenwalt and corroborated by him, under the totality of the circumstances, exhibited sufficient indicia of reliability to justify the investigatory stop of appellant. In White, the police reviewed an anonymous telephone tip that White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel and that she would be in possession of about an ounce of cocaine inside a brown attache case. Police surveillance disclosed White leaving the particular apartment within the time frame predicted by the caller. Police stopped White just short of the motel, and a consent search of her attache case uncovered marijuana. A subsequent search of her purse led to the discovery of three milligrams of cocaine.

We cannot agree with appellant's assertion that once in the driveway of his home, appellant was insulated from further police activity without a search warrant. Even searches of a residence, under exigent circumstances supported by sufficient evidence of a crime in progress, may be constitutionally permitted. The fact the "itinerary" supplied by the informant in White led to a motel rather than a residence should not be accorded undue significance. It is the itinerary and accompanying circumstances and not the destination itself which is of critical importance here. It is well-established where police have a right to stop an automobile and it turns into a residential driveway, the police may pursue and stop it. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); see United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Commonwealth v. Fox, 267 Pa.Super. 341, 406 A.2d 1072 (1979). The "totality of circumstances" test is sufficiently broad to cover the circumstances of this case within...