Com. v. Swartz

• Decision Date: 04 December 2001
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert Earl SWARTZ, Appellant.
• Court: Pennsylvania Superior Court

787 A.2d 1021

COMMONWEALTH of Pennsylvania, Appellee, v. Robert Earl SWARTZ, Appellant.

Superior Court of Pennsylvania.

Argued September 5, 2001.

Filed December 4, 2001.

Michael R. Hadley, Oil City, for appellant.

James P. Carbone, Assistant District Attorney, Franklin, for Com., appellee.

Before DEL SOLE, President Judge, McEWEN, President Judge Emeritus, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE, STEVENS, MUSMANNO and ORIE MELVIN, JJ.

DEL SOLE, President Judge.

¶ 1 This is an appeal from the judgment of sentence of two to twenty-four months, less one day, of incarceration imposed upon Appellant after he was convicted, at a non-jury trial, of driving under the influence of alcohol.¹ A divided panel of this Court filed a memorandum opinion on March 27, 2001, ruling that the suppression court erred in upholding the legality of the stop and in refusing to suppress the resulting evidence. On April 10, 2001, the Commonwealth filed an application for reargument en banc. This Court granted the Commonwealth's application on June 8, 2001, and withdrew the panel memorandum opinion. Upon en banc review we have examined Appellant's challenge to the denial of his motion to suppress physical evidence. We conclude that his claim has merit and we vacate Appellant's judgment of sentence and remand for further proceedings.

¶ 2 An appellate court reviewing the ruling of a suppression court must first ascertain whether the record supports the suppression court's factual findings and then determine the reasonableness of the inferences and legal conclusions drawn from such findings. Commonwealth v. Gommer, 445 Pa.Super. 571, 665 A.2d 1269, 1270 (1995). "When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443, 445 (1994) (citation omitted). "With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt." Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030, 1032 (1995) (citations omitted). Moreover, we are bound by those findings that are supported by the record and may only reverse if the legal conclusions drawn therefrom are in error. Gommer, 665 A.2d at 1270.

¶ 3 With regard to the suppression motion, the Commonwealth presented the testimony of Trooper Craig Amos of the Pennsylvania State Police. Although not labeled as such, the trial court made the following factual findings based upon his testimony:

On May 16, 1998, Trooper Amos of the Pennsylvania State Police received a dispatch at 4:24 p.m. The dispatch indicated that a citizen called the State Police to inform them that a blue Ford Escort, with a registration plate BLJ-6698, was being driven in Seneca by an intoxicated individual heading towards Franklin. Trooper Amos did not know the name of the individual who called the Barracks [sic]. Trooper Amos headed towards Franklin in his vehicle and did not find [the blue Ford Escort]. At approximately 5:48 p.m., Trooper Amos spotted the Blue [sic] Ford Escort at the intersection of State Routes 57 and 62, a direction completely opposite from Franklin. Trooper Amos stopped the vehicle solely on the information he received from the 4:24 p.m. dispatch. Trooper Amos did not observe any violations of the Vehicle Code prior to pulling the vehicle over.

Trial Court Opinion, 1/29/99, at 1. The record supports the suppression court's factual findings.² Given these findings, the suppression court concluded that "the information received on the dispatch gave Trooper Amos reasonable suspicion to warrant the vehicle stop at bar." Id. at 2. We cannot agree.

¶ 4 As this Court has summarized:

It is well established "when the police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants are considered `seized' and this seizure is subject to constitutional constraints." Commonwealth v. Knotts, 444 Pa.Super. 60, 64, 663 A.2d 216, 218 (1995). An investigatory stop of an automobile is justified only when it is based upon objective facts creating a reasonable suspicion the vehicle's occupants are presently involved in criminal activity. Commonwealth v. Valenzuela, 408 Pa.Super. 399, 408, 597 A.2d 93, 98 (1991). To meet this standard, the officer must point to specific articulable facts which, together with the rational inferences therefrom, reasonably warrant the intrusion. Commonwealth v. Williams, 419 Pa.Super. 380, 385, 615 A.2d 416, 419 (1992), alloc. denied, 533 Pa. 651, 624 A.2d 110 (1993).

To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including "tips" from citizens. Commonwealth v. Wright, 448 Pa.Super. 621, 630, 672 A.2d 826, 830 (1996). Naturally, "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." Commonwealth v. Ogborne, 410 Pa.Super. 164, 169, 599 A.2d 656, 659 (1991), alloc. denied, 530 Pa. 631, 606 A.2d 901 (1992) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)

). Thus, in Commonwealth v. Wilson, 424 Pa.Super. 110, 622 A.2d 293 (1993),

alloc. denied, 536 Pa. 623, 637 A.2d 283 (1993), we examined the requirements surrounding reasonable suspicion for automobile stops emanating from information provided by a tipster and explained:

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 reliable.

Id., at 115, 622 A.2d at 295-96 (citations omitted).

When the underlying source of the officer's information is an anonymous call, the tip should be treated with particular suspicion. See Commonwealth v. Jackson, 548 Pa. 484, 490, 698 A.2d 571, 573 (1997)

(referring to anonymous tip as basis for Terry stop and frisk). However, a tip from an informer known to the police may carry enough indicia of reliability for the police to conduct an investigatory stop, even though the same tip from an anonymous informant would likely not have done so. See id. (citing Alabama v. White, supra). Indeed, "a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk." Id.

Commonwealth v. Lohr, 715 A.2d 459, 461-462 (Pa.Super.1998) (footnote omitted).

¶ 5 The Commonwealth contends that because the tip in this case was received by a police dispatcher from a known citizen informant based upon that person's personal observation, it alone carried enough indicia of reliability for the police to make an investigative stop of the motor vehicle. The Commonwealth argues the trooper's receipt of this information from the dispatcher, which described the vehicle with sufficient specificity, coupled with the nature of the offense, driving under the influence, created reasonable suspicion warranting the investigatory stop.

¶ 6 Appellant submits that the information provided to the trooper was insufficient to justify an investigatory stop because the trooper was not given the identity of the individual tipster and thus was unable to judge his credibility or reliability. Appellant notes that the trooper made no observations to corroborate the informant's allegations before stopping the vehicle. In support of his position, Appellant also points to the fact that the informant did not provide a description or name of the driver and that Appellant's vehicle was not stopped until one hour and twenty-four minutes after the informant's call.

¶ 7 Upon review of this record we conclude the absence of certain information coupled with the duration of time which passed between the informant's call and the trooper's stop did not enable the trooper to possess reasonable suspicion that this vehicle was being operated by someone under the influence. As noted by Appellant, the informant described the vehicle, not the driver, and the direction the vehicle was traveling. The trooper patrolled in the identified direction, but did not see the described vehicle. Over an hour and twenty minutes later the trooper observed and stopped a blue Ford Escort traveling at a location completely opposite from the direction given in the police dispatch. Under these circumstances although the car may have been the one observed by the informant, it was not reasonable for the trooper to presume that it was being operated by the same individual who was reported to be under the influence. A significant amount of time had passed, making the report stale, and the fact that the vehicle was traveling in the opposite direction from that reported, made the rational inference that the driver was the one described as intoxicated even less likely. Thus, irrespective of the informant's status as a "known" or "unknown" source to the trooper, given the length of time which passed between the information provided by the informant and the stop, the fact the vehicle was traveling in the opposite direction from that described and the...