*2 CAVANAUGH, Before POPOVICH, TAMILIA and JJ. TAMILIA, Judge:
Carl Franz Ogborne appeals from judgment sentence imposed May 13, Following trial, a nonjury was convicted of possession a controlled substance1 and *3 possession with intent substance,2 to deliver controlled and sentenced to terma of two and one-half to five years imprisonment. appeal, On direct this Court reversed the judgment of holding: sentence
[Pjolice may not conduct valid investigative stop based solely on a confidential informant’s isolated and uncorrob- allegation orated individual is in posses- drugs____ sion of of exigent absence circum- [I]n stance, admittedly here, not present allega- unsupported tions by informants that certain possess individuals drugs which do not rise to the of probable level cause for a warrant, search may not be utilized by (5) the police five hours later to justify investigative an person’s on a private property. Ogborne, 604, 611-12,
Commonwealth v. 384 Pa.Super. 559 931, (1989) (Tamilia, A.2d J., 935 dissenting), reargument denied, 10, 1989. July Although allocatur initially granted Pennsylvania Supreme Court, Common- wealth v. 524 Ogborne, Pa. 574 (1990), A.2d 68 appeal was later as being dismissed improvidently granted. 780-113(a)(30). 1. 35 P.S. § Id.
167
789
570, 583 A.2d
525 Pa.
Ogborne,
v.
remand
upon
this Court
again
before
This case
(1991).
Court,
this
which vacated
Supreme
the United States
from
light
for further consideration
decision
previous
Court’s
White,
110 S.Ct.
v.
of Alabama
— U.S.
Pennsylvania
Ogborne,
(1990).
L.Ed.2d
1408,
Once stop, pursuant investigatory a valid police conducted L.Ed.2d 889 Ohio, 1, 88 U.S. With search and seizure. subsequent (1968), to their find no distinction between we guidance judgment one, and now affirm the we case and sentence. 15, 1987, Detective evening January hours of early
In the Investi- County Criminal Delaware Glenn Greenwalt confidential telephone call to a returned a gation Division in the past been reliable The informant had informant. convic- resulted arrests and given information which had within County with narcotics within Delaware dealing tions infor- knowledge, the personal Based on previous year. from returning Greenwalt be appellant mant advised would Avenue, Tinicum to the 100 Saude Philadelphia block new, Dodge black driving few Township, within a hours his possession approximately Daytona, and would have (“PCP”). phencyclidine ten bundles inves- previous from Detective Greenwalt knew *4 of PCP 1981 and possession of and distribution tigations con- Township and telephoned police Tinicum 1985. He his at 115 Saude Avenue firmed and wife resided appellant parked front Dodge Daytona frequently a black was and of then established surveillance of that residence.3 Police 11:20 of At approximately the 100 block Saude Avenue. new, turn Daytona black Dodge the p.m., police observed receiving the information Greenwalt testified that after 3. Detective informant, get attempt he to a search from confidential did the he he did not believe had sufficient warrant or arrest warrant because probable to obtain one. cause onto heading appellant’s Saude Avenue toward residence. vehicle, As Detective approached Greenwalt the it turned driveway into the of 115 Saude Avenue and Detective the recognized appellant. Greenwalt driver as Detective police car, Greenwalt’s unmarked followed un- by another car, car patrol marked and pulled driveway into the behind and flashing vehicle activated its red lights. approached dashboard Detective the Greenwalt ve- hicle, engine still running, whose was and on tapped the window, displaying driver’s his him- badge identifying self Despite as a officer. repeated requests, appel- lant did not turn off car the motor until Green- Detective began open walt the driver’s Upon opening door. the door, Detective Greenwalt detected the odor of POP within appellant vehicle and asked step out of car. A “pat down” search of outside the car disclosed POP, approximately packets and a subsequent search of his vehicle resulted in the discovery a small amount of POP. This evidence for basis the charges filed against appellant.
The basis of the
rule
determines the reason
ableness of the
search
balancing
need to search
against
entails,
the invasion
which
search
requiring the
police to intrusion by pointing to
specific
which,
facts
together
articulable
taken
rational inferences
facts,
from those
warrant
reasonably
1879-80,
intrusion.
Id. at
S.Ct. at
[Pursuant ] the Fourth if Amendment there is suspicion articulable person has committed or is about to commit a crime____ suspicion activity criminal [Reasonable warrants a seizure temporary purpose ques- tioning purpose limited to the stop____ [Tempo- detention rary for questioning on less probable than cause justified] the public where interest involved is [is the suppression illegal transactions in drugs or of any crime____ other serious
169
1319,
497-99, 103 S.Ct.
491,
460 U.S.
Royer,
v.
Florida
v.
(1983);
1323-25,
229, 237
Commonwealth
L.Ed.2d
75
(1990).
383
360, 582 A.2d
Pa.Super.
399
Lidge,
is
cause
probable
establishing
for
the threshold
While
suspi-
establishing a reasonable
higher than
necessarily
benchmark
apply
same
cion,
inappropriate
it is not
Supreme
In
our
Court
Pennsylvania,
determinations.
both
.
test set
circumstances”
adopted
“totality
has
in
Illinois
Supreme
States
Court
by the United
forth
(1983).
76 L.Ed.2d
Gates,
503 A.2d
Gray, 509 Pa.
White, where it
conformity
in
places Pennsylvania
This
held:
than
demanding standard
is a less
suspicion
Reasonable
that reasonable
the sense
only
cause
probable
that
is
information
can be established with
suspicion
required
quantity
or content than
different
cause,
the sense that rea-
but also
probable
establish
that is less
can
from information
suspicion
sonable
arise
cause----
required
probable
to show
reliable than
cause,
dependent
probable
like
suspicion,
Reasonable
possessed by police
information
both the content of
upon
quantity
Both
degree
reliability.
and its
of
factors —
of the circum-
“totality
considered
quality —are
into
must be taken
picture” that
stances—the whole
is reasonable
evaluating
when
whether there
account
Thus,
degree
if a
has
low
tip
relatively
suspicion.
required
be
to establish
more information will
reliability,
re-
requisite
suspicion
than would be
quantum
more
if the
were
reliable.
quired
tip
omitted).
(citation
Id.
[Bjecause an informant is to right shown be about some is things, right he probably about other facts that he has alleged, including the claim that the of is object tip the engaged Thus, in criminal activity. it is not unreasonable to conclude ... that the the independent corroboration by police significant aspects the predictions informer’s imparted degree reliability allega- some to the other by tions made caller.
Id. at 110 at L.Ed.2d White this
Applying case, we find the information presented him, to Detective and Greenwalt by corroborated under the totality circumstances, exhibited sufficient indicia of reliability investigatory stop appellant. the police an anonymous reviewed telephone tip that leaving White would be a particular apartment particular time in a particular vehicle, that going particular she would be to a motel and she would in possession be of about an ounce of cocaine inside a brown attache case. Police surveillance White leaving disclosed apartment within predicted the time frame by the caller. Police stopped just motel, White short and a consent search of her attache case marijua- uncovered A subsequent na. search of her purse led to the discovery milligrams of three of cocaine. agree
We cannot assertion that once the driveway home, of his appellant was insulated police from further activity without search warrant. residence, Even searches of a exigent under circumstances supported by sufficient of a evidence crime progress, may be The constitutionally permitted. the “itinerary” fact White supplied by the informant led to a motel rather than residence should be accorded significance. undue itinerary It is the accompanying circumstances and not itself destination which is of critical importance It here. is well-established where have a right an stop automobile and it turns into a residential driveway,
171 States, 305 stop it. Scher v. United pursue police may see United (1938); 151 83 L.Ed. 251, 59 S.Ct. U.S. 2406, 49 L.Ed.2d Santana, 38, 96 S.Ct. States Fox, Pa.Super. (1976); test of circumstances” “totality The A.2d case of this circumstances to cover the broad sufficiently strictures.4 and state constitutional federal within conducted As we find the White, supra, in accord with reasonable and entirely case 13, 1988. imposed May of sentence judgment affirm the we affirmed. of sentence Judgment *7 POPOVICH, J., dissents.
POPOVICH,
dissenting:
Judge,
from
upon
court
remand
is before this
present appeal
The
our previ
vacated
Supreme Court which
the United States
Ogborne,
v.
Pa.Super.
in
judgment
ous
court to review
604,
(1989), and ordered this
Once
i.e.,
Terry
stop,1
investigatory stop,
conducted
valid
Having com-
and seizure of evidence.
to the search
prior
directive, I
Supreme Court’s
with the United States
plied
appellant
again
investigatory
conclude that
reaffirm
Therefore, I, unlike the
would
illegal.
majority,
matter.
previous
our
decision
this
County
following
The record
facts: Delaware
reveals
call from a confi-
telephone
returned a
Detective Greenwalt
concerning
scope
and location of the
4. We note
claims
Terry stop
private property
in the trial court in his
on
were not raised
are, therefore,
suppress
petition to
waived. Commonwealth
(1978).
Baylis,
We addressed these issues
477 Pa.
Detective appellant Greenwalt knew had been involved years P.C.P. distribution several earlier. The detective also confirmed that appellant resided at 115 Saude Avenue and Dodge parked black was often in front of that property. police began surveillance, and, The at approxi- 11:20 mately p.m., appellant arrived at his pulled home and into his driveway. The then blocked the driveway, and four or five officers surrounded appellant’s car. Even- tually, Detective opened Greenwalt the driver’s side door and ordered appellant to shut off the car’s engine. At that time, Detective said he Greenwalt smelled the odor of P.C.P. and ordered to exit the car. A search of appellant and the large vehicle revealed a quantity P.C.P. White, supra, Alabama v. received an anonymous telephone tip that leaving White would be *8 particular apartment at a particular time in a particular vehicle, that she going would be to a particular hotel and that she in possession would be of an ounce of cocaine inside a brown attache police case. The then observed apartment White leave the at predicted time in the particular proceed vehicle and to particular hotel. After her stopping hotel, several blocks from the the police ob- tained White’s consent to a search of her brown attache case. The search of the case revealed a quantity of mari- juana. A subsequent search of her purse revealed cocaine. facts,
Based on those
Supreme
United States
Court
reversed the decision of the Court of
Appeals
Criminal
Alabama and held the anonymous
as
tip,
corroborated
work,
sufficient indicia
relia-
exhibited
independent police
suspicion
investigatory
for the
provide
to
reasonable
bility
anonymous
noted that the
the Justices
stop. Significantly,
“future behavior”
predict
informant
able to
White’s
reasoned,
only
The
“Because
Justices
particularity.
an individu-
privy
are
people
generally
number
small
it is reasonable for
believe
itinerary,
al’s
to also have
likely
access to such information
person with
illegal
access to reliable information about
individual’s
White,
Unlike the informant Alabama v. who knowledge itinerary, Detective had detailed White’s provide sufficiently informant did not simply Greenwalt’s such concerning appellant’s itinerary information to assume that he was also it would be reasonable information al- likely possess reliable about illegal Basically, appel- activities. who knew leged anyone with the identical infor- provided lant could have *9 words, In in this case was mation. other the corroboration insignificant. Analogizing quote a from the dissent of White, case, supra, to the present “Any- Justice Stevens given person a to make enough knowledge with about body grudge against or to harbor a target prank, the of a [him] tip to formulate a about certainly will be able [him] [him] Ala- predicting [appellant’s like one return the home].” White, bama v. at 2418. case, in the the officers knew
Surprisingly, present and, neglected prudently informant to act yet, the knowledge concerning into the informant’s inquire basis the informant’s tip. unsupported allegation the Outside of P.C.P., the Commonwealth transporting was point single upon premise cannot to a fact which the hand, Based on the information at Terry stop appellant. I and the agree majority cannot possessed that Detective Greenwalt information sufficient suspicion necessary for a create reasonable valid Alabama v. stop, light even when viewed White, supra. given This is true the fact the especially supra, that Alabama v. recognized Justices was itself a “close” case. S.Ct. at 2417. an al-
Certainly, tip, there are times when unverified cause, probable insufficient to neverthe- though establish Terry stop. See Adams v. less is a sufficient Williams, 143, 147, 1921, 1924, 92 S.Ct. 32 L.Ed.2d Williams, Adams v. high 617-18 Terry court sustained a and frisk undertaken on the known, tip given person basis of a to a officer However, case, informant, informant. reliable a.m., officer, high 2:15 stationed in a crime approached area, him in nearby and informed that an individual seated gun vehicle was narcotics and had a at his carrying waist. officer, informant, The approached who knew the the ve- tapped suspect hicle and on the window. The rolled down whereupon the officer to see the window was able arrested, then the search handgun. suspect The alia, inter uncovered, large incident to a lawful arrest of heroin. quantity *10 Williams, supra, Adams in sustaining the search
In
provided
that
the information
noted
Supreme
the
Court
at
the
407 U.S.
at
scene.”
immediately verifiable
“was
the
the officer
found
The fact
that
at 1923.
92 S.Ct.
place
the
precisely
handgun
of a
possession
suspect
reliability
the
informant corroborated
the
predicted
circum-
surrounding
That,
together with
taken
tip.
search
subsequent
cause for
stances,
probable
provided
148-149,
1924-1925.
Unlike
informant, corrobo-
from a reliable
tip
when a
demonstrates
suspi-
raise the reasonable
is sufficient
to
police,
rated by
a Terry
appellant was
stop. Presently,
for
necessary
cion
kind,
any
corroboration
suspicious activity
not involved
officers
and the
act was not obtained
alleged illegal
of an
in Adams v.
their
As stated
safety.2
did not fear
Williams,
in indicia
lacking
tips, completely
“Some
response or
no
would either warrant
reliability,
stop of a
a forcible
investigation
further
before
require
at
at
92 S.Ct.
authorized.”
407 U.S.
suspect would be
submit, “[s]imply
I
presently.
case
1924. Such was the
alone,
not
one, standing
as this
would
put,
tipa
such
a
in the
that
of reasonable caution
belief’
‘warrant a man
White, Alabama
at
S.Ct.
[stop]
appropriate.”
was
quoting Terry,
22, 88
392 U.S. at
S.Ct.
States,
132, 162,
quoting Carroll v. United
280, 288,
104 S.Ct. I knowledge presently, am convinced such intimate according- distinguishable, Alabama v. I dissent. ly,
Argued Aug. 1991.
Filed Oct.