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
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.
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.
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.
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:
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,
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
As we find the Terry stop conducted by the police in this case entirely reasonable and in accord with White, supra, we affirm the judgment of sentence imposed May 13, 1988.
Judgment of sentence affirmed.
POPOVICH, J., dissents.
POPOVICH, Judge, dissenting:
The present appeal is before this court upon remand from the United States Supreme Court which vacated our previous judgment in Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989), and ordered this court to review our decision in light of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Finding Alabama v. White, supra, distinguishable on its facts from the case sub judice, I respectfully dissent from the opinion of the majority.
Once again, the issue presented is whether the police conducted a valid investigatory stop, i.e., a Terry stop,
The record reveals the following facts: Delaware County Detective Greenwalt returned a telephone call from a confidential
Detective Greenwalt knew appellant had been involved in P.C.P. distribution several years earlier. The detective also confirmed that appellant resided at 115 Saude Avenue and that a black Dodge was often parked in front of that property. The police began surveillance, and, at approximately 11:20 p.m., appellant arrived at his home and pulled into his driveway. The police then blocked the driveway, and four or five officers surrounded appellant's car. Eventually, Detective Greenwalt opened the driver's side door and ordered appellant to shut off the car's engine. At that time, Detective Greenwalt said he smelled the odor of P.C.P. and ordered appellant to exit the car. A search of appellant and the vehicle revealed a large quantity of P.C.P.
In Alabama v. White, supra, the police received 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 hotel and that she would be in possession of an ounce of cocaine inside a brown attache case. The police then observed White leave the apartment at the predicted time in the particular vehicle and proceed to the particular hotel. After stopping her several blocks from the hotel, the police obtained White's consent to a search of her brown attache case. The search of the case revealed a quantity of marijuana. A subsequent search of her purse revealed cocaine.
Based on those facts, the United States Supreme Court reversed the decision of the Court of Criminal Appeals of Alabama and held the anonymous tip, as corroborated by
Comparing our facts to those of Alabama v. White, supra, the informant sub judice also predicted "future behavior", i.e., that appellant would arrive at his home in his car sometime later that evening. However, as stated in our prior Ogborne decision, "the actions of appellant were perfectly innocent. He arrived at his residence without any proof of criminal wrongdoing present." Ogborne, 384 Pa.Superior Ct. at 611, 559 A.2d at 935. Instantly, the informant merely predicted that appellant would drive his car home during a particular evening. Clearly, there was nothing remotely unusual about appellant's actions; eventually, almost everyone who leaves home returns. Likewise, there was nothing especially intimate or detailed about the information herein provided to the police. The knowledge that a person will return to their own home while driving their own car, without more, certainly does not demonstrate that the informant possessed intimate knowledge of the suspect's legal or illegal activities.
Unlike the informant in Alabama v. White, supra, who had detailed knowledge of White's itinerary, Detective Greenwalt's informant simply did not provide sufficiently particular information concerning appellant's itinerary such that it would be reasonable to assume that he was also likely to possess reliable information about appellant's alleged illegal activities. Basically, anyone who knew appellant could have provided the police with the identical information. In other words, the corroboration in this case was insignificant. Analogizing a quote from the dissent of
Surprisingly, in the present case, the police officers knew the informant and, yet, neglected to act prudently and inquire into the informant's basis of knowledge concerning the tip. Outside of the informant's unsupported allegation that appellant was transporting P.C.P., the Commonwealth cannot point to a single fact upon which to premise the Terry stop of appellant. Based on the information at hand, I cannot agree with the majority and the Commonwealth that Detective Greenwalt possessed information sufficient to create the reasonable suspicion necessary for a valid Terry stop, even when viewed in the light of Alabama v. White, supra. This is especially true given the fact the Justices recognized that Alabama v. White, supra, was itself a "close" case. 110 S.Ct. at 2417.
Certainly, there are times when an unverified tip, although insufficient to establish probable cause, nevertheless is sufficient to justify a Terry stop. See Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 617-18 (1972). In Adams v. Williams, supra, the high court sustained a Terry stop and frisk undertaken on the basis of a tip given in person to a police officer by a known, reliable informant. However, in that case, the informant, at 2:15 a.m., approached the officer, stationed in a high crime area, and informed him that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The officer, who knew the informant, approached the vehicle and tapped on the window. The suspect rolled down the window whereupon the officer was able to see the handgun. The suspect was then arrested, and the search incident to a lawful arrest uncovered, inter alia, a large quantity of heroin.
Unlike the case before us, Adams v. Williams, supra, demonstrates when a tip from a reliable informant, corroborated by police, is sufficient to raise the reasonable suspicion necessary for a Terry stop. Presently, appellant was not involved in suspicious activity of any kind, corroboration of an alleged illegal act was not obtained and the officers did not fear for their safety.
In conclusion, I would hold that in Pennsylvania, police may not conduct a valid investigatory stop based solely on a confidential informant's unsupported and essentially uncorroborated