Commonwealth v. Barensfeld

420 A.2d 544, 278 Pa. Super. 289, 1980 Pa. Super. LEXIS 2538
CourtSuperior Court of Pennsylvania
DecidedMay 23, 1980
DocketNo. 91
StatusPublished
Cited by1 cases

This text of 420 A.2d 544 (Commonwealth v. Barensfeld) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Barensfeld, 420 A.2d 544, 278 Pa. Super. 289, 1980 Pa. Super. LEXIS 2538 (Pa. Ct. App. 1980).

Opinion

MONTGOMERY, Judge:

Appellant, Robert Eric Barensfeld, was convicted of possession of a controlled substance at a non-jury trial on May 9, 1978. Post-trial motions were denied by the Honorable John N. Sawyer on May 30,1978. This is an appeal from the judgment of sentence imposed on appellant.

Prior to his trial, appellant filed a motion to suppress the physical evidence seized at the time of his arrest. This motion was granted in part as to the physical items found upon a search of appellant’s vehicle after his arrest, but denied as to the controlled substance found in the course of [291]*291his arrest. In this appeal, appellant argues that his warrantless arrest was not predicated on probable cause, and therefore, the evidence should have been suppressed as the fruit of an illegal arrest.

The evidence offered at the hearing on the motion to suppress the evidence was not substantially disputed. The Commonwealth’s witness, Trooper Richard McEwen, testified as to various tips he received concerning appellant’s activities. On September 15, 1977, appellant’s father notified Trooper McEwen that appellant was going to Ellwood City Forge Company to pick up his monthly stipend. The state police officer also received information from an unidentified source that appellant would then proceed to the residence of Michael Varkonda to purchase drugs.1

On the basis of the tips from appellant’s father and the unidentified source, the state police began a surveillance of appellant. The police observed him enter the Ellwood City Forge Company, during the morning of September 15, 1977. Upon leaving the Forge Company, appellant proceeded by vehicle to a bank. The state police then lost sight of appellant in traffic, but on the basis of the anonymous tip, they proceeded directly to the Varkonda residence.

When the officers arrived, they observed appellant’s vehicle parked outside the Varkonda apartment. A short time later, appellant was seen leaving Varkonda’s residence and carrying a brown paper bag. He entered his vehicle and began driving away. The police stopped his vehicle and [292]*292identified themselves, but appellant accelerated and pulled away. The police were eventually successful in halting him. As appellant got out of his vehicle, he attempted to place an envelope containing nine dilaudid tablets in his back pocket. The package fell to the ground and was seized by the police.

Appellant was arrested without a warrant. While a warrant is not necessary for every arrest, its absence must be excused by a finding of probable cause. Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914, (1973). Probable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant men of reasonable caution in the belief that the offense has been or is being committed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974).

In the instant case, the tip from the unidentified informant provided the impetus for the surveillance and arrest. Unquestionably, hearsay evidence can be sufficient to establish probable cause. The Pennsylvania Supreme Court has recently analyzed the problem of warrantless arrests based on information received from anonymous sources in Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973). Therein, the court examined the standards which such evidence must meet before it can establish probable cause:

“. . . (W)hen, as here, probable cause for a warrantless arrest is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional information before probable cause is established. First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the (crime). Second, in order to reduce the possibility that a tip meeting the first standard is merely a well-constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable.” Betrand Appeal, supra, 451 Pa. at 385-386, 303 A.2d at 488 (1973). Spinelli v. United States, 393 U.S. 410, 89 S.Ct. [293]*293584, 21 L.Ed.2d 637 (1969), Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

In the instant case, there was no testimony that the police has any knowledge of the underlying circumstances from which the informer concluded that appellant was about to participate in a crime. It is unknown whether the informer knew appellant or whether the information was obtained from a third party. In fact, the information could have been an unsupported rumor. Commonwealth v. Brown, 228 Pa.Super. 158, 323 A.2d 104 (1974); Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975); Commonwealth v. Smith, 453 Pa. 326, 309 A.2d 413 (1973). The tip was a mere conclusory statement that appellant was going to purchase narcotics at the Varkonda residence. No facts were set forth to support the reliability of this tip. Without more, such a tip clearly does not meet the first requirement of Betrand Appeal, supra.

The Commonwealth concedes that the anonymous tip, standing alone, was insufficient to provide probable cause. It is the contention of the Commonwealth that the reliability of the tip was sufficiently substantiated by the observations of the police so as to establish probable cause for the arrest.2 We do not agree. While it is well-settled that two sources, insufficient in themselves, can sometimes establish probable cause when taken together, Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972), Commonwealth v. Young, 222 Pa.Super. 355, 294 A.2d 785 (1972); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), such is not the case herein. In the above cited cases, the tips which, when taken cumulatively provided probable cause were of high quality. That is, the tips were from eyewitnesses or victims who for various reasons were not reliable sources, or the tips were very detailed and had inherent indicia of reliability.

[294]*294In the case herein, appellant’s father gave the police the limited information that appellant was going to pick up his monthly stipend on the day in question. This innocuous activity lends no weight to the tip that he would then proceed to purchase drugs.

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Bluebook (online)
420 A.2d 544, 278 Pa. Super. 289, 1980 Pa. Super. LEXIS 2538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-barensfeld-pasuperct-1980.