Com. v. Ogborne

• Court: Pennsylvania Superior Court
• Writing for the Court: POPOVICH; TAMILIA; TAMILA
• Citation: Com. v. Ogborne, 559 A.2d 931, 384 Pa.Super. 604 (Pa. Super. Ct. 1989)
• Decision Date: 10 July 1989
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Carl Franz OGBORNE, Appellant. 1859 Phila. 1988

Page 931

559 A.2d 931

384 Pa.Super. 604

COMMONWEALTH of Pennsylvania, Appellee, v. Carl Franz OGBORNE, Appellant.

1859 Phila. 1988

Superior Court of Pennsylvania.

Argued Nov. 1, 1988.

Filed May 1, 1989.

Reargument Denied July 10, 1989.

F. Kirk Adams, Media, for appellant.

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

Before CAVANAUGH, TAMILIA and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence of May 13, 1988. ¹ Following a non-jury trial on April 3, 1987, appellant was adjudicated guilty of possession of a controlled substance and possession with intent to deliver a controlled substance. He was found not guilty of possession of drug paraphernalia. ² For the reasons herein set forth, we reverse.

The pertinent facts are as follows: Detective Greenwalt of the Delaware County C.I.D. returned a telephone call from a confidential informant in the early evening of January 15, 1987. Over the past year the informant provided police with reliable information concerning drug activities in Delaware County. The informant told Detective Greenwalt that appellant would arrive later that evening in a black Dodge automobile at the 100 block of Saude Avenue, Tinicum Township. He further informed police that, based on personal knowledge, he knew the appellant would have in his possession approximately 10 bundles of the drug Phencyclidine (hereinafter P.C.P.). Detective Greenwalt testified that, after receiving the information from the confidential informant, he did not request a search warrant or arrest warrant because he did not think there was sufficient probable cause to obtain one. (N.T. Suppression Hearing 3/30/87, p. 33)

Detective Greenwalt knew appellant was involved in the distribution of P.C.P. in 1981 and 1985. He proceeded to call the Tinicum Township police and confirm that appellant and his wife resided at 115 Saude Avenue, and that a black Dodge was frequently parked in front of that property.

A police surveillance of the 100 block was set up that night. At approximately 11:20 p.m. the police observed a black Dodge enter Saude Avenue from Second Street. When the vehicle reached 115 Saude Avenue it turned into a private driveway. At this time Detective Greenwalt identified appellant as the driver of the car.

An unmarked police car operated by Detective Greenwalt immediately pulled into the driveway behind appellant's vehicle. Detective Greenwalt then activated the emergency red flashing lights mounted on the dashboard of the vehicle. Two additional police cars parked behind Detective Greenwalt's automobile to prevent appellant from backing his vehicle onto the street.

As four or five officers surrounded appellant's car, Detective Greenwalt approached the driver's side of the black Dodge. He tapped on the car window, showed appellant his badge, and identified himself as a police officer. Detective Greenwalt testified at some point in time he reached back and rested his hand upon his service revolver, but did not draw the weapon. Detective Greenwalt repeatedly ordered appellant to shut off the engine, but appellant did not respond. After opening the driver's side door Detective Greenwalt again ordered appellant to turn off the motor. Upon detecting the odor of P.C.P., Detective Greenwalt ordered appellant to step out of the car.

A search of the appellant outside the vehicle resulted in the discovery of approximately 89 packets of P.C.P. A smaller amount of the drug was also found inside appellant's Dodge vehicle. The discovery of this evidence bottomed all the criminal charges for which appellant was convicted.

At the suppression hearing the Commonwealth testified it was its position that there was no probable cause to search appellant or appellant's vehicle for drugs until Detective Greenwalt smelled odor of P.C.P. emanating from the Dodge. (N.T. Suppression Hearing 3/30/87 p. 23, 29)

The sole issue presented by these facts is whether the police conducted a valid investigatory stop of the appellant prior to the search and seizure of the evidence.

In evaluating an investigative stop, a court must first inquire whether the officer's action was justified at its inception. The stop must be based on specific and articulated facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Next, the court must inquire whether the intrusion was reasonably related in scope to the circumstances which justified the interference in the first place. Commonwealth v. Higgins, 346 Pa.Super. 238, 499 A.2d 585 (1985), cert. denied in 479 U.S. 841, 107 S.Ct. 149, 93 L.Ed.2d 90 quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Traditionally, it was accepted that seizure of the person was required by the Fourth Amendment to be based on probable cause. The first recognition that the Fourth Amendment reasonableness requirement could be satisfied by a showing of something less than probable cause was announced in Terry. However, we are admonished to be mindful that the Terry principle is an exception to the general rule requiring probable cause and must not be extended in such a way as to swallow the rule. See generally, Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982).

In the case sub judice, the Commonwealth argues Detective Greenwalt relied on specific articulated facts which provided reasonable cause to believe drugs might be found on the appellant or in his car. Appellee notes that Detective Greenwalt was contacted by a reliable informant who provided accurate information in the past concerning local drug activities. The informant told the Detective that appellant would drive a black Dodge vehicle to a certain city block on a particular night. He further informed police that he possessed personal knowledge that appellant would be carrying approximately 10 packets of P.C.P. Detective Greenwalt had prior knowledge of appellant's drug activities. A check with local authorities confirmed the appellant's home was located in the city block described by the informant. Based on these circumstances, the Commonwealth argues the police were entitled to stop and investigate the appellant for suspected drug use.

Appellant argues he is entitled to a new trial because the lower court erred by denying his motion to suppress the evidence obtained at the time of the arrest. He contends the police lacked the reasonable suspicion needed to justify an investigatory stop of his vehicle. We agree with the position of the appellant. Applying the aforementioned analysis of Higgins and Terry, we have no doubt Detective Greenwalt's investigatory stop was not justified at its inception.

Clearly, the pivotal piece of information in the case sub judice was informant's tip that appellant would be carrying drugs. Detective Greenwalt testified at the suppression hearing that he did not know the basis of the informant's tip, and that he did not ask the informant to reveal how he obtained such information. In the opinion of the Detective, the information regarding possession of P.C.P. by the appellant came from the informant's personal knowledge. (N.T. Suppression Hearing, p. 30)

In essence, Detective Greenwalt stopped appellant's vehicle in his private driveway at his residence based solely on the informant's unverified allegation that appellant was carrying drugs. Moreover, approximately five (5) hours elapsed since police received the informant's tip and the actual arrest was conducted. ³ Doubtless enough time existed between the receipt of the confidential information and the stop for Detective Greenwalt to apply for a search warrant. However, in that time span no efforts were made by police to secure a search warrant. We do not retreat from holdings that the police, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. Terry, 88 S.Ct. at 1879, quoting, e.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In most circumstances failure to comply with the warrant requirement can only be excused by exigent circumstances. Terry, 88 S.Ct. at 1879, quoting, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

In the case at bar Detective Greenwalt did not obtain a search warrant following the receipt of the informant's tip because he admitted the police did not have probable cause to do so. (N.T. Suppression Hearing 3/30/87 p. 20-21) Moreover, the record does not reflect that any exigent circumstances existed to justify the warrantless search. In the instant situation the police, armed with the uncorroborated tip that appellant possessed P.C.P. waited approximately five (5) hours before attempting to conduct a Terry investigative stop in a private driveway. Such police conduct, in effect, circumvents the warrant procedure by using information that does not rise to the level of probable cause to justify an investigative stop conducted literally hours after the information is received. Further, it makes a mockery out of the warrant procedure and departs from the factual circumstances buttressing Terry investigative stops.

In Terry, the police officer personally observed two men hover about a street corner for an extended period of time. The men paced alternately along an identical route, pausing to stare in the same store window roughly 24 times. The two individuals were eventually joined by another man in one of a number of conferences held upon the completion of their route. Terry, 88...