Commonwealth v. Ogborne

599 A.2d 656, 410 Pa. Super. 164, 1991 Pa. Super. LEXIS 3159
Superior Court of Pennsylvania·Decided October 21, 1991·No. 1859·Published·Cited by 16 cases

Opinions

TAMILIA, Judge:

Carl Franz Ogborne appeals from judgment of sentence imposed May 13, 1988. Following a nonjury trial, appellant was convicted of possession of a controlled substance1 and possession with intent to deliver a controlled substance,2 and sentenced to a term of two and one-half to five years imprisonment. On direct appeal, this Court reversed the judgment of sentence holding:

[Pjolice may not conduct a valid investigative stop based solely on a confidential informant’s isolated and uncorroborated allegation that a particular individual is in possession of drugs____ [I]n the absence of exigent circumstance, admittedly not present here, unsupported allegations by informants that certain individuals possess drugs which do not rise to the level of probable cause for a search warrant, may not be utilized by the police five (5) hours later to justify an investigative stop on a person’s private property.

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. [167] Commonwealth v. Ogborne, 525 Pa. 570, 583 A.2d 789 (1991). This case is again before this Court upon remand from the United States Supreme Court, which vacated this Court’s previous decision for further consideration in light of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Pennsylvania v. Ogborne, — U.S. -, 111 S.Ct. 1408, 113 L.Ed.2d 462 (1991).

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.3 Police then established surveillance of the 100 block of Saude Avenue. At approximately 11:20 p.m., the police observed a new, black Dodge Daytona turn [168] onto Saude Avenue heading toward appellant’s residence. As Detective Greenwalt approached the vehicle, it turned into the driveway of 115 Saude Avenue and Detective Greenwalt recognized the driver as appellant. Detective Greenwalt’s unmarked police car, followed by another unmarked police car and patrol car, pulled into the driveway behind appellant’s vehicle and activated its red flashing dashboard lights. Detective Greenwalt approached the vehicle, whose engine was still running, and tapped on the driver’s window, displaying his badge and identifying himself as a police officer. Despite repeated requests, appellant did not turn off the car motor until Detective Greenwalt began to open the driver’s door. Upon opening the door, Detective Greenwalt detected the odor of POP within the vehicle and asked appellant to step out of the car. A “pat down” search of appellant outside the car disclosed approximately 89 packets of POP, and a subsequent search of his vehicle resulted in the discovery of a small amount of POP. This evidence was the basis for the charges filed against appellant.

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.

[Pursuant to Terry, ] certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime____ [Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop____ [Temporary detention for questioning on less than probable cause [is justified] where the public interest involved is the suppression of illegal transactions in drugs or of any other serious crime____

[169] Florida v. Royer, 460 U.S. 491, 497-99, 103 S.Ct. 1319, 1323-25, 75 L.Ed.2d 229, 237 (1983); Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

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:

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Commonwealth v. Ogborne, 599 A.2d 656, 410 Pa. Super. 164, 1991 Pa. Super. LEXIS 3159 (Pa. Ct. App. 1991).

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