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concluding that mere encounter with plain-clothes officer escalated to an investigatory detention when officers in uniform approached defendant and told him they had received a tip that he was selling drugs
Summary of this case from Com. v. MaxonOpinion
Argued September 11, 1997.
Filed December 8, 1997.
Appeal from The Court of Common Pleas of Mercer County, Criminal Division, No. 1680 Criminal 1995, Wherry, J.,
Daniel W. Davis, Mercer, for appellant.
David A. Ristvey, Assistant District Attorney, Mercer, for the Commonwealth, appellee.
BEFORE: POPOVICH, SAYLOR and OLSZEWSKI, JJ.
This an appeal from the judgemnet of sentence entered in the Court of Common Pleas of Mercer County following appellant's conviction on the charges of possession of controlled substance and possession of drug paraphernalia. Herein, appellant contends that the lower court erred in failing to supress illegal narcotics and a marijuana pipe found in his possession after he was seized and searched by police pursuant to an anonymous tip. We reversre.
In reviewing the denial of a motion to suppress, our responsibilty is to determine wheter the record supports the suppression court's factual findings and the lefitimacy of the inferences and legal conclusion drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the procecution's witness and so much of the evidence for the defense as, fairly read in the context of the tecoud as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.
Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, 178-179 (1992). We find that the suppression court's factual findings are supported by the record and are as follows.
On October 4, 1995, at approximately 3:30 p.m., a 911 dispatcher contacted a Sharon police officer and informed him that an unidentified caller had reported that Phillip Martin was selling marijuana and Percocet the Capital Cafe. The officer relaed this information to Detective Raymond Greene. Detective Green, who knew Martin and was aware that he had "a drug problem," immediately proceeded to the Capital Cafe. He was accompained by two officers, both of whom were in uniform. Upon arrival, the uniformed officers remained outside the cafe. Detective Greene, who was not in uniform, entered the cafe in search of Martin. The detective then questioned a barmaid and learned that martin was using the restroom. After Martin exited the restroom, Detective Greene approached him, addressed him as "Phil," asked if he could speak with him asked if he could speak with him and asked him "to step outside." Martin said, "Okay." He then walked out of the cafe and into an adjacent public parking lot. Once outside, Martin and the detective were joined by the two uniformed officers. Detective Greene then explained the reason for the officer's "visit". Specifically, he informed Martin that the department had recieved a tip that he was selling narcotics at the Capital Cafe. Martin responded that he did not use or sell illegal narcotics. The detective then asked Martin if he would mind emptying his pockets. Martin walked over to the police cruiser and placed the contents of his pockets on the cruiser's hood. Detective Greene then approached the cruiser, inspected the contents of Martin's and discovered a pipe containing marijuana residue. Martin was arrested and searched by one of the uniformed officer's. The search revealed a baggie of Marijuana, part of a marijuana cigrette and a baggie containing Percocet. Martin was then transported to the police station and later charged with possession of controlled substance and possession of drug paraphernalia.
Martin filed a pre-trial motion to suppress, which was denied by the suppression court. Subsequently, he was tried, convicted and sentenced on all charges. This timely appeal followed.
Appellant contends that the suppression court improperly denied his motion to suppress since (1) he did not voluntarily exit the cafe with Detective Greene, (2) he was seized illegally in the parking lot when he was questioned by Detective Greene, (3) he did not voluntarily empty his pockets and (4) the police did not have probale cause to arrest or search him.
As we undertake consideration of appellant's initial claim, we are mindful that not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Pennsylvania and United States Constitution. In the Interest of Jermaine, 399 Pa. Super. 503, 582 A.2d 1058 (1990).
In the lower court, appellant argued that the search and seizure at issue ciolated the United States and the Pennsylvania Constitutions. However, "appellant has failed to indicated [on appeal] wheter his deizure was in violation of the Fourth Amendment to the United States Constitution, or both Constitutions. For the sake of judicial economy, we will analyze this case under both Constitutions." Commonwealth v. Wright, 448. Pa.Super. 621, 672 A.2d 826, 828 n. 4(1996_.
We note that the protections of individuals privcacy against unreasonable govermental searches and seizures under the Pennsylvania Constitution are nore ezpansive that those afforded under the United States Constitution. Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993). The United States Supreme Court's interpretations of Fourth Amendment guarantees do not bind this Court in reaching conclusions regarding the protections afforded under Article I, Section 8 of the Pennsylvania Constitution. Id. However, as will be discussed infra, we conclude that under both the state and federal contitutional provisions, the search and seizure in this case were unconstitutional.
This Court has differentiated between a `mere encounter' [and] and `investigative detention.' Amere encounter [or requesst for information] need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. An investigative detention must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. [I]n order to determine whether a particualr encounter constitutes a siezure, a court a must consider all the circumstances surrounding the encounter to determine whether the police conduct could have communicated to a reasonable person that the person was not free to decline the officer's request or otherwises terminate the encounter.
Commonwealth v. Vasquez, 703 A.2d 25, 30-31 (Pa.Super. 1997) (citations and quotations omitted).
We find that appellant was not seized by Detective Greene when he initially exited the cafe. prior to leaving the cage, appellant was bit questioned extensively by detective Greene. Rather, the setective merely approached appellant, indicated that he would like to speak with him and asked him if he would "step outside." There is indication that the appellant was told that he was told that he was required to leave the cafe. Rather, the detective simply asked for his cooperation. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 311,83 L.Ed2d 165 (1984) (per curiam)("The initial contact between the officers and respondent, where they simply asked if he would step aside and tald with them, was clearly [a] consensual encounter."). Moreover, Detective Greene approached and spoke to appellant in a non-threating manner. There were neither threats nor any show of force. There was no evidence of any attempts at coercion or intimidation by the detective. Accordinly, we find that appellant left the cafe voluntarily, and, therefore, that he was not seized." See Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
The rules enunciated in Rodriguez were adopted by a majority of the United states Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
Next, we must determine whether the questioning of appellant in the parking lot escalated an investigarory detention requiroing reasonable suspicion. When appellant exited the cafe, he was immidiatily confronted by two additional officers, both of whom were in uniform. Detective Greene them informed appellant that the police came to the cafe becauses they recieved a tip that he was selling drugs. N.T. 2/2/96 p. 12. As in Commonwealth v. Wright, 448 Pa. Super. 621, 672 A.2d 826, 829 (1996), we find that "the combination of the threating presence of several officers and the threating presence of several officers and the indication that appellant was suspected of criminal activity [requires the conclusion that] a reasonable person would believe that he was not free to leave." A statement by law enforcement official that a person is suspected of illegal activity os persuasive evidence that the Fourth Amandment and Article I, Section 8 of the Pennsylvania Constitution have been implicated. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (White, J., plurality); Wright, supra. We nbelieve that appellant could conclude reasonably that the police suspected him of selling illegal narcotics based on the detective's recitation of the anonymous tip and that he could concluded reasonably that he was not free to leave. Accordingly, we find that appellant was seized by the police when he was questioned in the parking lot. See Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994) (holding that appellant was seized where he was confronted by four officers who indicated that they were "working narcotics" and were part of a drug interdicition program); Jermaine, supra (indicating that the threatening presence of several officers and unsupported accusations of criminal activity constitute a "seizure").
The rules enunciated in Royer were adopted by a majority of the United States Supreme Court in Bostick, supra.
Having found that appellant was seized when he was detained and questioned by Detective Greene, we must next determine whether "there were specific and articulabke facts which, taken together with rtational inferences from those facts, reasonably warranted the intrusion." Wright, 672 A.2d at 829-830 (citation and quotation omitted). See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, we must determine whether the anonymous tip provided with reasonable suspicion to make the investigatory stop.
"When, as here, the underlying source of the police department's information is an anonyumous telephone call, the courts have reconized that the tip should be treated with particular suspicion." Commonwealth v. Jackson, 548 Pa 484, 698 A.2d 571, 574 (19978. In analyzing an anonymous tip, we must determine whether under there "totality of the circumstances" the informant's tip establishted the necessary reasonable suspicion that criminal activity was afoot. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Critical factors to be considered are the informant's veracity, releability and basis of knowledge. Id.
Here, the tip provided virtually nothing from which one might conclude that the caller was either honest or his information reliable. The caller provided absolutly no indication of the basis for his information regarding appellant's criminal activities. "Simply put, a tip such as this one, standing alone, would not warant a man of reasonable caution in the belief that [a stop] was appropriate." White, 496 U.S. at 329, 110 S.Ct. at 2416 (quotation omitted). As the Pennsylvania Supreme Court has sstated, "the anonymous tip may have been a mere prank call. Equally, it may have been based on no more that the caller's unparticipattedhunch." Jackson, 698 A.2d at 574.
However, this does not mean that an officer may never conduct an investigatory stop on the basis of an anonymous tip. A stop on the basis of an anonymous tip is sufficiently corroborated by independent police work giving rise to a reasonable belief that the tip was correct. Rather recently, in Jackson, supra, the Pennsylvania Supreme Court examined an anonymous call where the only information provided was the location of the suspect, his gender and the color of his jacket. The Court held that:
If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowlesge ezcept that the caller accurately described someone at a particular location. [T]he fact that a suspect resembles the anonymous caller's description does not corroborate, allegations of criminal conduct, for anyone can descibe a person who os standing in a particular location at the time of the anonymous call. something more is needed to corroborate the caller's allegation of criminal conduct.
The tip in this case was similiar to the tip in Jackson, except that the name of the suspect tather than his description was provided to the police. While the fact that the caller knew appellant's name indicates a greater degree of familiarity than if he only descibe appellant's appearance, we find that it is not sufficient detail, even when corroborated, to satisfy the reasonable-suspicion standard. Knowing a person's name is not the sort of fact restricted to "those in the defendant's inner circle of friends." Commonwealth v. Wilson, 424 Pa. Super. 110, 662 A.2d 293, 296, (1993). It is information which can easily be obtained and is known by general acquaintances of the accused. See Wilson, supra. Moreover, as in Jackson, the caller did not predict any future behavior by appellant. Because of the general nature of the tip, the only detail the police were able to corroborate location. The caller's allegation, without more, did not constitue reasonable grounds for the police to suspect that appellant was engaged in criminal activity.
In his dissent our esteemed colleague argues that there was a greater degree of corrobortion of the tip in this case than in Jackson, supra, and, therefore, that Detective Greene had reasonable suspicion to stop appellant. Specifically, it is argued that since appellant was found at the described location possessing thef described drugs the tip was forroborated. This argument was rejected in Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997) (Flaherty, J., plurality), whose analyses was adopted in Jackson, supra. The dissent also argues that Detective greene had prior knowlege regarding appellant which gave crediblity to the tip. Specifically, the dissent indicated that the detective knew that the appellant used drugs in the past and that he was prescribed medication as a result to motorcylcle accident. However, we find that the Commonwealth failed to establish the reliablity of this information. During the suppression hearing, Detective Greene stated that appellant did not provide him with this information from "people on the street." N.T. 2/2/96 p. 29. Detective Greene also specifically testified that he did not know the ame or type of medication prescribed to appellant. N.T. 2/2/96 p. 29. In any event, even if we were to find the detective's prior knowlesge to be reliable, it would be insufficient justification for stopping appelant, even in connection with the otherwise uncorroborated tip.
We note that '[u]pon receiving unverified information that a certain person is engaged in illegal activity, the police may always observe the suspect and conduct their own investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may of course, be breifly stopped and questioned." Hawkins, 692 A.2d at 1071. Here, there was no police surveillance and no contention that appelant was acting suspiciously when the police arrived at the cafe. See Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1398 (1978).
Remaining is the question of whether the evidence seized from appellant may, nevertheless, be introduced into evidence against him on the grounds that he voluntarily emptied his pockets and was searched incident to a lawful arrest. In Commonwealth v. Prosek, 700 A.2d 1305 (Pa.Super. 1997), we held that when the causative factor in the relinquishment of evidence is an unconstitutional search and seizure, the contraband must be suppressed. See jackson, supra. Thus, while we accept as true the suppression court's finding that appellant relinquished evidence when he emptied his pockets, we find that the evidence should have been suppressed as the fruit of an illegal searsh. The same is true of the evidence seized after appellant was arrested.
In light of our discussion supra, we need not dicuss appellant's remaining contentions.
Reversed and remanded for proceedings consistent with this decision. Jurisdiction relinquished.
OLSZEWSKI, J., files a dissenting opinion.
While the expression of the majority view provides a persuasive analysis and sound rationale, I am obliged to differ and respectfully dissent. I feel that the detective had reasonable suspicion to make the investigatory stop.
Certainly, in cases of anonymous tips, the court must analyze the "totality of the circumstances" in determining whether there was reasonable suspicion that criminal activity was afoot. Alabama v. White, 496 U.S. 325 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The majority relies on the case of Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), where our Supreme Court held that there was no reasonable suspicion when the only corroboration of the anonymous tip was that the described person was at the particular location. The majority analogizes the instant case to Jackson by indicating that "the only detail the police were able to corroborate was the fact that appellant was at a particular location" in the instant case.
To the contrary, in the instant case there is more significant corroboration that, given the totality of the circumstances, gives rise to reasonable suspicion that criminal activity is afoot. The anonymous tip gave the name of the defendant, his location, and that he was selling marijuana and Percocet. Defendant was indeed found at the described location. Further, t, the suppression court found that the detective knew the defendant and had knowledge that the defendant was taking prescription drugs for a motorcycle accident. The fact that defendant was known to be taking medication for an accident along with the anonymous tip that defendant was selling Percocet, a prescription drug often given for pain relief, gave significant credibility to the anonymous tip. The naming of the particular prescription drug that was being sold, a drug that coincided with the detective's knowledge of the defendant's medical condition, is beyond mere chance and indicates the degree of familiarity needed to satisfy the reasonable suspicion standard.
Because there was reasonable suspicion to permit the investigatory stop in the parking lot, evidence gained when defendant voluntarily emptied his pockets and recovered subject to the search following a lawful arrest was properly admissible.