Commonwealth v. Wimbush

868 pro- Moreover, today disregards the decision jobs.

their Therefore, I dissent. high nation’s Court.5 nouncements dissenting opinion. joins this NEWMAN Justice 750 A.2d 807 Pennsylvania, Appellee, COMMONWEALTH

v. WIMBUSH, Anthony Appellant. C. Pennsylvania, Appellee, Commonwealth

v. White, Sr., Appellant. Lance M. Pennsylvania. Supreme 17, Argued Sept. 1997. 14, July 1999. Resubmitted 17, April 2000. Decided 28, Aug. Reargument Denied course, again correct Supreme Court can once the United States 5. Of scope today regarding the of the Fourth majority makes the mistake 938, Labron, See, Pennsylvania 116 S.Ct. v. 518 U.S. Amendment. 2485, (1996)(reversal by Supreme Court on U.S. 1031 135 L.Ed.2d 938, issue); Pennsylvania Kilgore, 116 518 U.S. Amendment Fourth Bruder, (1996)(same); 2485, Pennsylvania v. 1031 135 L.Ed.2d S.Ct. 205, (1988)(same); Pennsylvania 172 102 L.Ed.2d U.S. 109 S.Ct. (1977)(same). Mimms, 54 L.Ed.2d Altoona, Dickey, Anthony M. for C. Wimbush. Thomas. Stewart, III, M.D. Huntingdon, Robert B. for Com. Cecchetti, Gregory Greensburg, L. for Lance M. Sr. for Uncapher, Greensburg, Peck and Leslie John W. J. in 25 W.D. 1997. Com. FLAHERTY, C.J., ZAPPALA, CAPPY,

Before SAYLOR, CASTILLE, NIGRO, NEWMAN and JJ. OPINION NIGRO, Justice. granted

In this we allocatur appeal, consolidated purported and other determine whether an suspicion that corroborating created a reasonable evidence therefore, for activity was a basis provided criminal afoot Appellants investigation. for we officers Since conclude that the officers each case could have reason ably suspected activity time of criminal afoot investigatory Superior we stops, their reverse the Court’s Ap suppression decisions that affirmed the courts’ denial suppress. relevant facts of case pellants’ motions each briefly are set forth below.1 court, reviewing ruling suppression we

1. When are bound suppression findings supported by the factual that are court’s DeWitt, Pa. 608 A.2d record. Commonwealth v. (1992). Commonwealth Wimbush 13, 1993, Pennsylvania Trooper Police February On State during his anonymous call at the barracks received p.m. anonymous 3:00 to 11:00 a.m. shift. The caller stated Tony driving a black man named would be a white van on Piney Tony and that would have cocaine and Ridge Road gave marijuana possession. his The caller plate van’s license The state officer the number. registered and learned that van was

checked the number Appellant Anthony learning After also where Wimbush. lived, they notify called the in his Wimbush area suspected drug them and found out that Wimbush was activity county. his in separate Piney Ridge

Several officers went vehicles to Road and parked one officer saw the white van at a trailer. An positions officer watched the van and the others took on trailer, parts other of the road. van When the left the observing officer contacted the others radio. These offi- cers followed the van and it at an An- intersection. approached passenger other officer side and he saw when seats, Wimbush reach between the bucket he shined his flashlight on baggies, the van floor. The saw officer two one appearing marijuana containing contain and the other powdery white substance. opened

The officer door and baggies. seized the He get gave directed Wimbush to out of van him his rights. Miranda Another officer took back to the Wimbush signed barracks Wimbush authorizing where a consent form search of van. drags The officers found more in the van. charged possession

Wimbush was mari- cocaine and juana possession marijuana of cocaine and with intent to hearing, deliver. After a the trial court denied Wimbush’s suppress alleged illegally-seized motion to evidence. The proceeded case to a trial bench and the trial court found guilty charged. Wimbush of the crimes court sentenced years Wimbush to five to in prison. appeal, ten On affirmed, finding properly that the trial court Superior Court suppress. denied the motion to

Commonwealth White 12, 1994, Traci morning July Officer Matthews On the responded to an Kensington Department Police the New drug activity King’s possible 911 call about Kensington public housing complex. Residence of the New male, wearing a a anonymous caller asserted that black The shorts, complex would white shirt and white exit get girl’s bicycle. and onto a black drugs possession his girl’s a King’s Matthews drove to Residence and saw Officer bicycle complex. to the circled black outside the entrance She White, Appellant and to observe Lance premises returned primarily in a white T-shirt and white a black male dressed shorts, get girl’s bicycle. a black complex exit the and onto him, street, Matthews Once White reached the Officer call, questioned briefly began him about the and weapons. him down for officer testified that White pat The during this detention and that before she appeared nervous search, Shortly ran from pat-down could finish her he her. White, thereafter, Sergeant Floyd Newingham saw ordered him him to walk towards him. As White stop directed Sergeant Newingham, dropped bag he a contain- approached ing individually-wrapped bags sixteen of crack cocaine. Ser- geant Newingham placed White under arrest. legality stop, of Matthew’s initial

Challenging the Officer trial suppress drug filed a motion to evidence. The White trial, found following court denied the motion and a bench substance, posses- a guilty possession of controlled substance, escape. a controlled sion with intent to deliver imprisonment court to a term of of three The sentenced White years. appeal, Superior On and one-half ten judgment affirmed White’s of sentence.

Discussion presented by validity issue both of these cases is the investigatory stop. Appellants argue officer’s investigatory they detention subjected were to was uncon- stitutional since the purported and other cor- roborating evidence did not suspicion create reasonable they engaged activity.2 were in criminal agree. We investigatory

An stop, subjects suspect which to a period and a of detention but does involve such arrest, coercive conditions as to requires constitute reasonable activity criminal is afoot. Terry v. Ohio, 1, 21, 1868, 1879-80, 392 U.S. 88 S.Ct. 20 L.Ed.2d 889 (1968); Melendez, 323, Commonwealth v. 544 Pa. 676 A.2d (1996). 226, 228-30 suspicion depends upon Reasonable both the content of possessed by the information and its degree reliability. Wilson, Commonwealth v. Pa.Super. (1993) 622 A.2d (quoting 295-96 Alabama v. 325, 330, 2412, 2416, 110 L.Ed.2d 301 (1990)). Thus, quantity and quality of information are consid assessing ered when totality If circumstances. Id. information has a low degree reliability, then more informa tion required to establish suspicion. Id.

This Court recently has addressed the of anonymous role tips in providing a basis for an investigatory stop. In Com- Jackson, 484, monwealth v. (1997), 548 Pa. 698 A.2d 571 a police officer responded to a radio report stating a that man in green a jacket was carrying gun a at a particular location. No additional details provided. were When the officer arrived at location, the identified he saw a people number of including the defendant who wearing green a jacket. solely Based call, upon anonymous the the officer and searched the defendant. Although I,

2. Appellant explicitly neither raises this claim under Article Constitution, Pennsylvania Section 8 of the Appellants both reference Pennsylvania throughout argument cases their that their constitutional rights were violated. Pennsylvania We note that consistently has fol- See, jurisprudence lowed stop Fourth Amendment and frisk cases. Jackson, 484, e.g., 489, 571, Commonwealth v. 548 Pa. 698 A.2d 574 (1997); Melendez, 323, 327-28, see also Commonwealth v. 544 Pa. 676 226, (1996) (Terry A.2d 230 sets forth standard for the reasonableness of I, a search Constitution). under Article Pennsylvania Section 8 of the

376 Hawkins, 652, 547 Pa. upon Commonwealth v.

Relying (1997), case3, factually A.2d a similar the Court held 692 1068 anonymous a justify that the did not Jackson Jackson, 494, at A.2d at 576. In frisk of defendant. 698 Hawkins, explained police plurality a the Court when alleging particu an call that a of a person receive location, description carrying particular lar a at a gun cars, patrol broadcast information neither dispatcher nor the in their cars know whether the officers Hawkins, 656, 547 692 A.2d at information is reliable. Pa. at anonymous tip may that an The Court observed time, call. Id. same it nothing prank more than mere At the may unpartieularized be based on no more than the caller’s Jackson, 574; Pa. see hunch. at 698 A.2d at also (anonymous at at tips 496 U.S. nothing provide “virtually might from which one conclude that reliable”). honest, his the caller is either or information Be unreliability, call cause of its radio alone is of criminal insufficient to establish a reasonable Jackson, Hawkins, activity. supra; supra. fact explained

The Court in Jackson that the further designated location and police proceeded saw matching in the call person description did corroborate Jackson, any alleged activity. criminal Pa. at Hawkins, 656-57, (quoting A.2d at 574-75 547 Pa. 692 A.2d at 1070). anyone person standing who is Since can describe location, particular “[something in a more is needed corrob- allegations criminal Id. In orate caller’s conduct.” situation, typical anonymous caller will need an Id. independent suspicion. basis to establish reasonable Hawkins, explained acting As where are supplied anonymously, public on information will receive protection by police its full act within constitu- measure who Hawkins, police responded stating to In officer also a radio call gun particular was with a there a man at a location. radio call description suspect. included a location, of the When the officer arrived at the description he saw the defendant who fit the in the call. call, upon anonymous slopped the officer and frisked the Based defendant. 657-58, Hawkins, 692 A.2d 547 Pa. at tional restraints. that a information unverified police receive

1071. When the may activity, observe illegal engaged person If surveil- investigation. conduct an suspect and conduct, suspicion of criminal produces reasonable lance Id. questioned. may stopped and suspect anony- acted on and Hawkins in Jackson Since to believe that the independent reason tips and had no mous activity, in criminal involved may have been suspects See also Com- judgments sentence. reversed the (1997) (opinion Kue, 692 A.2d 1076 547 Pa. monwealth Court) (where, than other announcing judgment to believe that criminal was no reason anonymous tip, there unsupported by rea- afoot, stop was an officer’s conduct was suspicion). sonable and Hawkins to the in Jackson

Applying the rationale Court, cannot the lower courts’ decisions cases before pro Officer Matthews stand. Commonwealth anonymous tip to an response King’s Residence ceeded above, the carrying drugs. As stated that White was alleging unreliability, could not alone, its create tip given anonymous activity was afoot. There that criminal “something just more” than fore, Matthews needed Officer stop of investigatory a valid to conduct order White. allega- was, however, tipster’s of the no corroboration

There stop. justify Officer Matthew’s of criminal conduct tions with the was consistent appearance White’s While did exit the description and White overly general caller’s Officer Matthews bicycle, housing complex on the described suggest that crimi- which would no conduct observed unusual such, Matthew’s surveillance activity afoot. As Officer nal unreliable, independent no reason produced in criminal conduct. was involved tip suspect that a Rather, for Matthew’s belief only basis Officer obtained the information had committed remained crime been reliability. no indicia of bore from the uncorroborated 378 Jackson, simply adequate

Under this basis is not to establish suspicion required to conduct an investigatory the reasonable stop. however, argues, anony that

The Commonwealth tip given mous instant was similar to case the one White, 325,110 supplied police in Alabama v. 496 U.S. S.Ct. 2412,110 (1990), police L.Ed.2d 301 which held that corrobora anonymous tip predicted person’s tion of an future justified investigatory stop.4 anonymous tip actions an The police in Alabama v. told would ster the defendant time, apartment particular at a would to an leave her travel drugs identified motel and that she would inside a have carrying particular police stopped case. The the defendant’s just upholding stop, car short of the identified motel. Supreme tipster’s the United States Court found that specific information demonstrated “inside information —a fa White, miliarity respondent’s with affairs.” at 2417. that if an S.Ct. The Court then held information, tip provides including relating such insider facts persons ordinarily easily pre to “future actions of third not dicted,” then corroboration of this insider information However, support finding suspicion. can of reasonable Id. in Alabama v. tip anonymous tip unlike the here predict familiarity did not behavior that revealed intimate Rather, only predictive with White’s affairs. flavor to the tip generically-described instant was a lone that a statement person complex get bicycle. would exit on a black Not only anonymous tipster provide any did the fail to information destination, anyone King’s about White’s but in the Residence complex could have been aware of White’s outfit and mode of Supreme recently requirement 4. The United States reaffirmed the anonymous tips predictive must contain information in order J.L.,-U.S. --, give reasonable in Florida (2000). explained S.Ct. 146 L.Ed.2d 254 The Court order that in anonymous tip reliability tip for an to have indicia sufficient the must predictive by police exhibit information that can be corroborated offi- at---, Id. cers. 120 S.Ct. at 1378-79. In the absence of such information, predictive any tip leaves the without thus, knowledge provide means test the informant's cannot suspicion. officers reasonable Id. transportation day question. simply on the here kind of does demonstrate the insider information that was found to pivotal holding to the Court’s in Alabama v. White.

Thus, find that we the unreliable and uncorroborated provide did not Officer Matthews with the suspicion required investigatory stop to make an White.5

Likewise, stop we find that the in Commonwealth v. Wimbush was not conducted on the basis of a reasonable Wimbush, suspicion activity police that criminal was afoot. In proceeded Piney to in Ridge response anonymous Road to an claiming call that Tony driving someone named would a van clear, which drugs. contained As Jackson and Hawkins make alone, an given unreliability, its cannot form suspicion the basis for a reasonable activity that criminal is Thus, police afoot. “something just the needed than more” anonymous the tip justify conducting to an investigatory stop of Wimbush. however, anonymous tip,

The was fact uncorroborated. The police that the state learned from local authorities that Wim- suspected bush was drug activity of in county his did not that currently corroborate he was in engaged drug-related drugs during 5. The additional fact that the were not recovered Officer Matthew's initial detention but were discarded and recovered after flight response illegal White's in to Officer Matthew's detention does not finding drugs alter our suppressed that the must be as the fruit of an Matos, illegal stop. In Commonwealth v. this Court held that where an unconstitutionally by police, individual seized the i.e. without reason- cause, suspicion probable any subsequent able or flight police with in pursuit any during continues the seizure and contraband discarded the pursuit product is considered of coercion and is not admissible Matos, against (1996). the individual. 543 Pa. 672 A.2d 769 case, argues the instant pre- the Commonwealth that Matos does not pursuit clude the of an individual who flees after he has been by police possesses suspicion officer who reasonable that criminal However, activity is afoot. since we find that Officer Matthews did not requisite have the suspicion justify investigatory reasonable to an White, drugs of the discarded White were the fruit of a seizure which outset, was argu- unconstitutional from the and Commonwealth's necessarily ment fails. activity after it located activity. suspicious saw no to believe independent tip van had no reason and Jackson, uncor- activity was Under that criminal afoot. insufficient to create a reason- was roborated activity justify able of criminal did not suspicion investigatory stop. argument

Although the Commonwealth makes no distinguish effect, v. White is also this we note Alabama case, as it was Commonwealth able from the instant analysis White. As discussed the above Commonwealth Alabama v. White held were the Court they justified conducting investigatory stop an when were anonymous tipster’s information able corroborate af familiarity with specific the defendant’s demonstrated fairs, relating to actions of third including predictions “future White, 496 ordinarily easily predicted.” persons 332, 110 that it at 2417. The Court made clear S.Ct. predictive aspects corroboration existing of facts at the time tip, not the corroboration call, provided police which Here, however, necessary justify stop. information, any which would tip provide predictive did not familiarity with imply anonymous special had a that the caller Rather, imme affairs. record establishes that Wimbush’s the diately anonymous tip, police the following receipt the of the Road, Ridge Wim proceeded Piney they where discovered Thus, Piney already was on parked bush’s van. Wimbush Shortly spotted Ridge police Road at the his van. time Piney thereafter, northerly on proceeded van Wimbush’s tip Ridge police anonymous and the followed.6 Since Road the in dissenting opinions imply the facts are almost 6. Wimbush dissent, Particularly, in Mr. identical those in Alabama v. White. his predicted caller that [Wim- Justice relies on the fact that "the Castille Road, along Piney proceeding Ridge a limited would be bush’s] vehicle reaching Huntingdon evening,” County, later that in the access road in predictive aspects police the of the conclusion that the corroborated conveys anonymous Dissenting tip. opinion This statement record, predictive tip unsupported by since aspect to this the Piney Ridge police observed Road at the time the his Wimbush was on parked nothing tip Wimbush in the itself indicated that van

381 informa- provide type instant did not of “inside in the case White, police did tip Alabama tion” contained stop suspicion under White to Wimbush. not have reasonable however, contends, that al The Commonwealth Wimbush, though no traffic citation was issued to In legally van because of a traffic violation. stopped the below, trial that a rejecting argument this court stated just theory support traffic violation was advanced to that, actuality, suspi the van was because of bound arising tip. cion from the We are credibility court’s See also Commonwealth determination. (1992)

DeWitt, (finding Pa. 1030 A.2d theories to a traffic violation to be after-the-fact advanced related justifications, stop).7 rather than valid for a reasons above,

For Superior the reasons outlined we reverse the trial Court’s decisions affirmed the court’s denials addition, anywhere Piney Ridge other than Road. the fact that driving along Piney Ridge put Wimbush started Road after had impart reliability his van under surveillance does not tip, any presumably along Piney since other driver would have to drive Ridge Nothing dispels Road in order to exit the road. in the record this presumption. clearly predictive The facts of this are case not as of future behavior presented as the facts in Alabama v. White. In were behavior, predictions regarding able to corroborate the White's future merely verifying tip. rather than facts in existence time at the And, activity, even with this corroboration of future the Court stated J.L.,-U.S.--,-, that White was a close case. Accord Florida v. 1375, 1379, (2000). 146 L.Ed.2d 254 The facts and circum- surrounding stances in the instant case do not support tip a determination of reasonable since the here provide predictive anony- failed to the same level of information as the mous in White. voluntary 7. The Commonwealth also states that Wimbush’s consent to a provides independent search of the van basis to sustain the search. establishing The Commonwealth has the burden of that the evidence exploitation illegal found a later search was not an search. Yocham, (1977) See Commonwealth v. 473 Pa. A.2d (discussing arrest); admissibility illegal test for of evidence found after an Brooks, (1976) Commonwealth v. 468 Pa. 364 A.2d 652 (same). support The Commonwealth has failed to this contention and showing its bare statement insufficient is to meet its burden of that the illegal stop subsequent connection between the and the search was so dissipate attenuated as to the taint. See id. pro- suppress to and remand for further Appellants’ motions opinion. ceedings consistent with this concurring opinion. filed a Chief Justice FLAHERTY dissenting opinion. ZAPPALA filed a Justice dissenting opinion filed a which Justice CASTILLE joins. Justice NEWMAN Justice,

FLAHERTY, concurring. Chief to the majority separately respond I but write to join, the Pennsylvania of constitutional dissenting that the issues view properly raised. law were ques- and there is Wimbush Commonwealth White Pennsyl- appellants raise claims under the

tion as to whether 910(a)(5) Pa.R.A.P. states: vania Constitution. will questions presented of be deemed

The statement comprised every subsidiary question fairly therein. include statement, fairly or Only questions set forth ordinarily will be considered comprised therein Court. questions presented in the statement of

Wimbush asserts of his brief that the of Wimbush’s vehicle section and asserts that his “constitutional “unconstitutional” White Pennsyl- go violated. Both briefs then on to cite rights” were rights that making argument vania cases in constitutional Pennsylvania’s “strong violated. White even refers to were privacy right privacy,” asserting Pennsylvania’s view applicable to his case. say It would understatement the statement are questions presented the briefs Wimbush question inartfully appellant drafted. If an wishes to raise Constitution, this court should not Pennsylvania under the guess being Although at what is raised. it is close have to Pennsylvania claims have fact been case as whether conclude, raised, hesitancy, they have. I would with some therefore, law, is our decisions in applicable Jackson Hawkins.

In both Wimbush White the Commonwealth relies on predictive anonymous Hawkins, the of nature the calls. In plurality of this court “if anonymous, police stated: the is may reasonably rely if predictive on it it is suspect’s the 652, 1068, behavior.” 547 Pa. 692 A.2d 1070 n. 3. anony- The in mous caller Wimbush indicated that a black man would be

driving white van with a specified registration number on Piney Ridge Road and would drugs possession. have in his police fact that particular discovered this van on Piney Ridge being Road driven a black man predictive is nothing since van was there from beginning police surveillance.

However, the Commonwealth asserts stop was permissible Pennsylvania under law arresting because the police called in the area where Wimbush lived and were told that suspect drug This, he was a activity. according to Commonwealth, independent corroboration of the anon- ymous tip. I agree cannot that such information validates the stop First, for two reasons. provided no except information that the van and driver were at a located particular location. van already Since the was Piney Ridge on arrived, Road when separate suspect- information as to drug activity gives ed police nothing except that the driver suspected is a drug Secondly, dealer. the call from one department to the other was stop made after the had been ordered. Information validating stop which arrives after had already been upon decided cannot to justify serve stop. White the caller stated that a black male wearing a white shirt and shorts would public housing leave a complex get on a girl’s bike. This person would allegedly drugs. However, have the fact that a black clad in male white housing project left the general on a bike is so nature it predictive. more, cannot be said to be Without police had no suspicion person that this engaged illegal conduct.

Accordingly, I join majority in reversing both convic- tions.

ZAPPALA, Justice, dissenting. given by the the information I find that As demonstrate police corroboration subsequent and the callers reason- reliability as that found to constitute degree similar investigatory stop under support able 496 U.S. Alabama Fourth Amendment (1990), dissent. compelled I am L.Ed.2d 301 S.Ct. I, claims under Article preserved properly Appellants Had Constitution, I have would Pennsylvania of the Section v. Good- conclusion. See Commonwealth contrary a reached J., (Zappala, Concur- win, Appeal Docket No. 37 W.D. ring).1 in Alabama v. “the Court majority properly notes that

The an investi- conducting in justified that were held an they able to corroborate stop when were gatory familiarity specific a information that demonstrated tipster’s relating to affairs, including predictions with the defendant’s ” Op. at easily predicted.’ not persons of third actions ‘future at S.Ct. Alabama v. citing sound, the United general proposition this Although 2417. law to the of this rule of application Supreme Court’s States part company compels me in Alabama White facts in majority these cases. that the in v. White stated anonymous caller Alabama The complex at a particular apartment a leaving suspect would in- further The caller specified in a vehicle. certain time to a motel and suspect going was police that the formed the an of cocaine inside possession ounce that she would be exit observed the defendant case. The officer brown attaché hands, and enter the nothing in her building, carrying as it drove officers followed the vehicle designated car. The just car and route to the motel the most direct I, Goodwin, concurring opinion I concluded that Article my applied that the United requires a standard than broader Section interpreting whether an Supreme v. White in Court Alabama States suspicion support anonymous tip to establish reasonable is sufficient investigatory stop. an in an was discovered Marijuana its destination. short purse. found in the defendant’s case and cocaine attaché case, the Court held it was a close Acknowledging that police corroboration estab- coupled with the investigatory stop.2 support lished indicated, apart- a woman left the that as the caller It found time vehicle at certain designated into the building, got ment predicted destination. on a route to the direct proceeded and by the independent corroboration Court held predictions im- aspects of the informer’s significant police of reliability allegations to the other made degree of parted some drugs. regarding possession by the caller regard,3 reasoning this Although question I the Court’s no by it as there is discernable difference our is bound facts of Alabama v. White and those between Wimbush, In Commonwealth instant cases.4 Tony driving would be that a black man named caller stated registration on specified with a vehicle number white van Tony Road and that would have cocaine Piney Ridge every verified at detail of the had been 2. The Court noted leaving stop, the name of the woman the time of the such as left, suggestion apartment building, precise from which she carrying be a brown attaché case. that White would cogently dissenting opinion in v. noted in his Alabama Justice Stevens 3. somebody's departure "prediction time of and that one’s about assuming probable anything but a reliable basis for destination is illegal possession of an substance.” 496 U.S. at the commuter is 333, noted that under the 110 S.Ct. at 2417-2418. He further Court's any "every subject being questioned by holding, citizen is to seized and testify top prepared that the warrantless was based on officer who is to just anonymous tip predicting conduct the officer ob- whatever an 333, Id. at 110 S.Ct. at 2418. served.” conclusion, reaching suppression this I have afforded the court's In States, finding described in Ornelas v. United of fact the deference Ornelas, (1996). 134 L.Ed.2d 911 Supreme held that the trial court's ultimate deter- States United stop had reasonable to mination as to whether officers appeal, subject review on rather than a individual is to de novo an clear, abuse of discretion standard. Court made deferential or however, reviewing take care both to review find- courts "should give only weight and to due ings fact for clear error to of historical judges facts resident and local law inferences drawn from those S.Ct. at 1663. officers.” Id. at enforcement Upon registration a of the marijuana possession. in his check given, registered the officers learned that the van was number that Wim- Anthony The officers also discovered Wimbush. That suspected drug activity county. his bush was parked van at a evening, officers observed white trailer Piney Ridge on Road. The officers followed the vehicle located stopped it trailer and Wimbush at an intersection. as left the from and Drugs were recovered the vehicle Wimbush arrested. White, v.

In Commonwealth caller stated shorts, male, wearing that a black a white shirt and white King’s Kensington public would Residence of the New exit the drugs possession get in his and onto a housing complex King’s An girl’s bicycle. black officer drove Residence and bicycle black to the girl’s observed outside the entrance thereafter, White, a complex. Shortly the officer saw black shorts, in a T-shirt and primarily male dressed white white complex get girl’s bicycle. onto the The officer exit the White, him patted weapons, down for and White fled. Another officer observed White and ordered him to officer, approached towards him. As White he walk containing bags of dropped bag individually wrapped sixteen crack cocaine.

As Alabama callers identity instant informed the authorities of the cases defendant, located, would approximately where he when the specific transportation would leave and the mode of defendant Accordingly, compelled I am to his destination. conclude that Alabama White controls these cases and that no violation of Fourth Amendment resulted from the investi- gatory stops Appellants. Justice,

CASTILLE, dissenting. majority acknowledges, stop-and-frisk As cases in this are evaluated under the federal standard set Commonwealth Ohio, 1, 1868, forth in 392 88 20 L.Ed.2d Terry U.S. S.Ct.

387 (1968).1 Thus, I respectfully 889 must dissent.2 The corrobo- anonymous tips ration of the in both of cases was clearly these White, 325, sufficient under Alabama v. 496 110 U.S. S.Ct. (1990). 2412, 301 L.Ed.2d In Alabama v. telephone

officer anonymous person, received a call from an stating that leaving specified apartment White would be at a particular Plymouth wagon time in a brown station with a taillight, motel, broken going specified she would be to a and that in possession she would be of about an ounce cocaine inside a brown arriving attaché case. After outside apartment building, the officer and his partner observed hands, building, nothing White leave the in her and enter wagon a station similar to the one described. The officers followed it proceeded along the vehicle as the most direct motel, specified route towards the it before it receiving reached the motel. permission After to conduct a search, found Upon the officers a brown attaché case. re- quest, provided White the combination to the lock. The marijuana officers found placed inside and White under arrest. subsequent A search revealed purse. cocaine her

After was tried and possession convicted of several charges, the Alabama Appeals Criminal determined the officers lacked the suspicion necessary Ohio, Terry under S.Ct. 20 L.Ed.2d 889 (1968), to justify investigatory respondent’s the initial vehicle; therefore, the marijuana and cocaine were deemed Pennsylvania 1. Even if the protection Constitution afforded broader Constitution, stop-and-frisk appellants cases than the United States judice the case protection they sub would not be entitled to that because Pennsylvania have not raised Although claims under the Constitution. true, Flaherty it is Concurring as Mr. Chief Justice asserts in his briefs, Opinion, appellants Pennsylvania that both cite case law in their upon by all of the appellants presently cases relied for the issue before Moreover, jurisprudence. this Court are based on appellant federal passing Pennsylvania's right White's “strong privacy” reference to contraband, arises in his discussion of discarded an issue that is not dispositive question propriety relevant to the of the initial investigatory stop in this matter. subject opinion, 2. For further elaboration on the matter of this see the Goodwin, Dissenting Opinion in Commonwealth v. 561 Pa. (1999), companion originally accepted A.2d 795 matter under this jurisprudence. Court’s allocatur Ap- fruits of unlawful The Court of Criminal an detention. suppress that motion to the evidence peals concluded White’s therefore, and, granted her convic- should have been reversed Supreme tion. Court of Alabama denied the State’s The petition for a writ certiorari. granted certiorari Supreme

The United States Court “over order to a conflict in state and courts resolve federal may suspicion furnish whether an reasonable White, 328, Alabama v. at stop.” supra for S.Ct. that, Supreme similar to The Court noted United States cause, deter probable suspicion determinations of reasonable circum “totality minations are considered under the 330, 110 picture.” citing whole Id. S.Ct. stances —the Cortez, 411, 417, 101 S.Ct. United States 449 U.S. (1981). However, cause, probable reason L.Ed.2d 621 unlike demanding standard, only suspicion able is a less infor can be established with suspicion sense that reasonable quantity mation or than that that is different content cause, required probable but also in the sense that to establish suspicion can from information that is less reasonable arise required probable reliable that show cause. Id. than to case, to the facts of the Applying this lesser standard that, officers Court concluded when the sufficiently had been corroborated so as to in crimi- engaged furnish that White was therefore, investigative stop nal did not violate activity; Constitution. Fourth Amendment to the United States anony- acknowledged important The Court details of the carrying tip specifically mous the fact White would be — gone contained allegedly drugs case that attaché —had However, tipster had correct about uncorroborated. been departure, in which departure, place White’s time of vehicle Thus, departed and, apparently, she White’s destination.3 independent Court reasoned that “the corroboration aspects predictions im- significant of the informer’s acknowledged positive 3. The that the officers could not have been driving they stopped specified motel her White was since before reached it. she reliability allegations other made degree of parted some 2412.4 corroboration Id. at by the caller.” future behavior pertaining information to White’s predictive it inside information —a significant “because demonstrated only Id. familiarity respondent’s affairs.” Since special privy to an individual’s people generally number of are small person for to believe that itinerary, it is reasonable likely to have access to information is also with access such illegal activities. information about the individual’s reliable Id. should to how two matters at issue

I have little doubt as the Indeed, in Alabama v. Com light be in of White. resolved (1997), Hawkins, this Pa. A.2d 1068 v. monwealth that, tip “if the under Alabama Court noted predictive on it if it is police may reasonably rely anonymous, n. Id. at 656 n. 692 A.2d at 1070 suspect’s of the behavior.” by in and expressed by 3.5 this Court Hawkins principles The in Alabama v. White are Supreme Court the United States by majority in this matter. inexplicably abandoned the Wimbush, facts at trial In the adduced Commonwealth 13, 1993, Rich- February Trooper on State demonstrate that during which the caller Gergel ard received an call van that the caller provided registration the number a white Tony. named said was owned African-American male evening that this vehicle would predicted The caller later Road, proceeding along Piney Ridge a limited access road be Huntington County, carrying marijuana in and would and J.L., Supreme recent in Florida v. 4. The United Stales Court’s decision - -, (2000), way 146 L.Ed.2d 254 in no J.L., impacts application judice. In on the of White to the cases sub judice, anonymous tip unlike in White or the cases sub the did not information, young any predictive merely that a contain but stated wearing plaid standing particular stop— black male a shirt and at a bus by anyone looking reported could be out a window—was facts that movements, however, Accurately carrying gun. predicting someone’s a Thus, analogous entirely to Flaw- is an different matter. J.L. is more kins, supra. Hawkins, predict any behavior. did not future Therefore, majority question of this Court found that the in was Hawkins, (Newman Terry supra justify stop. and not sufficient to Castillo, JJ., J., result). Nigro, concurring dissenting, in the registration drugs police in the vehicle.6 The obtained the found that question number of the vehicle and the vehicle con- Anthony Wimbush. The officers also registered was the state barracks the area where the vehicle tacted and from officers that Antho- registered determined there activity. ny suspect drug was a known Wimbush Having non-predictive aspects tip, corroborated of the having performed independent police work to uncover and subject criminal concerning further details activities of the There, tip, proceeded Piney Ridge the officers Road. description they observed van matched the relevant registration travelling along Piney Ridge numbers north Road. exceeding officers followed the van and observed it speed driving wrong highway.7 limit and on the side predictive aspects tip, Finally, having corroborated the van, and unlawful having operation observed the erratic having performed independent police respect work with suspected drug operator, activities of the van the officers pulled investigative stop. the van over for an tip provided 6. Because this information as to Wimbush's actions later evening begin Piney Ridge in the and Wimbush did not to travel down location, until after the arrived at that were not Road merely "verifying tip,” facts existence at time of the as majority Op. contends. See at 814 n. 6. concerning majority 7. The discounts the observations traffic violations claiming by suppression pretextual. the court deemed them This is quite simply supported by Although parties agreed not the record. all limit, exceeding speed that the van was not because it was agreed exceeding speed parties the limit, also that the van was in fact independent and an that this could be evaluated as basis for stop, by following exchange: as evidenced saying stop I there ... PROSECUTOR: am are two bases for the Independently stop justified can be due to the fact that there were ignore question ... whether traffic violations. We can’t Trooper justified stopping Granlund would have been the vehicle for those traffic violations to issue a citation. Certainly. THE COURT: Yes, he DEFENSE COUNSEL: would. (R. 49-50). Clearly, testimony finding supported suppression this court's navigating wrong fact van that the curves on side of highway speed and the vehicle that the was excessive. sum, only did the officers here minimum take the necessary corroborative measures justify investigative exclusively predictive anonymous tip based on a under White, Alabama they also developed measures, through independent culminating in the observa- tions of operation unlawful of the vehicle. Since Alabama v. is the which barometer an officer’s conduct must be context, only measured this possible conclusion is that the conduct of these officers was for Fourth unassailable purposes. Amendment

In Commonwealth v. Traci Officer Matthews re- ceived an telephone possible call about drug activi- ty at a public housing certain named complex. The caller male, stated that an African-American wearing a shirt white shorts, and white would shortly exit complex illegal drugs in possession his girl’s on a bicycle. leave black Officer Matthews responded immediately and arrived at the specified complex circling minutes later. After the area her vehicle, patrol she appellant, observed an African-American male, emerge wearing white shorts and white shirt. Appel- lant a girl’s mounted black bicycle and began depart. Officer caught up Matthews to appellant, stopped him and call, informed him of the 911 and inquired as to whether she might ask him a questions. few Although appellant agreed, Officer Matthews noted that appellant was extremely nervous and she asked whether she briefly could him weap- check for ons. As attempted she to initiate a limited pat-down, appel- fled, lant turned and leaving bicycle behind. Officer conveyed Matthews this information over radio.

Sergeant Floyd Newingham responded immediately when he heard the radio call indicating that appellant had fled. Arriving at the housing area of the complex, Sergeant New- ingham matching observed man appellant’s description run- ning across the street front of him him to stop. ordered complying order, After with this appellant surreptitiously dis- plastic carded a small bag that was later determined to contain grams three of crack cocaine. Officer Matthews ar- rived immediately thereafter and appellant. identified only question purposes appeal propri- for of this is the If investigative stop by Matthews.

ety of the initial Officer a of criminal stop supported by this was reasonable plástic not the activity, bag the evidence in the small then properly and it was of a “coerced abandonment” result Again, in the deemed admissible.8 as Alabama White> tip as predictive aspect officer corroborated of the here the descriptive tip. as of the As this Court aspects well the Hawkins, anonymous, police in “if the is properly noted may reasonably rely predictive suspect’s on it if it is the Hawkins, 3,n. at 1070 n. 3. supra behavior.” at 656 A.2d shortly tip predicted appellant Quite simply, this would depart girl’s bicycle. on a black Officer complex exit the appellant this prediction Matthews watched as fulfilled exact- ly. independent by signifi- corroboration the “[T]he predictions imparted cant of the informer’s some aspects degree reliability allegations by made the the other at 2412.9 caller.” Alabama v. supra stops In in determining Terry the these two matters .that by suspicion, majority supported were not independent by police on fact that relies observation provide any aspects did not corroboration of the criminal White, however, tips. only re- Alabama quires independent of the that the have corroboration By predictive aspect tips. holding of the Id. that the majority aspects tip, must corroborate the criminal investigative has standard set forth raised the for challenges only request Appellant stop, subsequent the initial Terry perform protection. for Officer Matthews to a frisk her own majority opinion attempts distinguish Ala- prediction 9. The asserting prediction by "anyone bama from this v. White King's complex ... [appellantj’s have been Residence could aware of transportation day question.” specula- on mode of This naked legal significance. Having v. White tion devoid of read Alabama any carefully, prediction nowhere indication that loses its I could find ability meaningful reliability some to be a indicator of if there is people might possibility that other in the world able to make event, any highly prediction. unlikely same I find it that at the time significant housing tip, people complex of this in the number of cognizant appellant depart issue were of the fact would complex girl’s bicycle. on within minutes

393 probable to from reasonable v. White Alabama cause. ques- to ask allowing officers interest

The societal compelling. suspicion is basis of a common-sense on the tions cases such officers can advance how else wonders One only suspects. The asking questions without as these on suspects pass to to allow the alternative here possible to discover direct attempt in an and follow them unimpeded further following suspects But conduct. of criminal evidence suspects were unless the likely yield no rewards most would activity in on their criminal carry to as simple-minded so procured could have say that officers To public. reality that ignore is to witnesses

cooperation of other begin with— criminality to reports to gives rise dealers, drug in mortal fear of namely, frequently citizens are that there only can conclude good reason. One and often do in the wake of that officers can frequently nothing will be Instead, they investigative stop. justify opinion this unabated, go forth even when activity criminal must allow crimi- try to alert them to such but fearful citizens concerned predictive infor- first corroborate the activity, they nal when citizens, they to do and when all seek supplied by these mation questions. is ask majority against our citizens what protects

This decision specter having to answer the ominous must conclude it police; all surrenders posed by hard-pressed questions few do law officers to exchange ability enforcement Moreover, contradicts today clearly jobs. the decision their v. high in Alabama nation’s pronouncement Therefore, I dissent. White.10 dissenting opinion. joins NEWMAN this

Justice course, again Supreme correct Court can once the United States Of today regarding scope of the Fourth majority mistake the makes ihe 938, Labron, See, Pennsylvania 116 S.Ct. v. 518 U.S. Amendment. 2485, (1996)(reversal by Supreme Court on L.Ed.2d 1031 938, issue); Pennsylvania Kilgore, 518 U.S. Amendment Fourth Bruder, 2485, (1996)(same); Pennsylvania v. 135 L.Ed.2d 1031 S.Ct. 205, (1988)(same); Pennsylvania 102 L.Ed.2d 488 U.S. 109 S.Ct. (1977)(same). Mimms, L.Ed.2d 331 434 U.S.

Case Details

Case Name: Commonwealth v. Wimbush

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 17, 2000

Citation: 750 A.2d 807

Docket Number: 0174 Middle District Appeal Docket 1996 and 0025 Western District Appeal Docket 1997

Court Abbreviation: Pa.