Commonwealth v. Wimbush

750 A.2d 807, 561 Pa. 368, 2000 Pa. LEXIS 918

• Court: Supreme Court of Pennsylvania
• Decided: April 17, 2000
• Docket: 0174 Middle District Appeal Docket 1996 and 0025 Western District Appeal Docket 1997
• Status: Published

Opinions

OPINION

NIGRO, Justice.

In this consolidated appeal, we granted allocatur to determine whether an anonymous tip and other purported corroborating evidence created a reasonable suspicion that criminal activity was afoot and therefore, provided a basis for police officers to stop Appellants for investigation. Since we conclude that the officers in each case could not have reasonably suspected that criminal activity was afoot at the time of their investigatory stops, we reverse the Superior Court’s decisions that affirmed the suppression courts’ denial of Appellants’ motions to suppress. The relevant facts of each case are set forth briefly below.¹

Commonwealth v. Wimbush

On February 13, 1993, a Pennsylvania State Police Trooper received an anonymous call at the police barracks during his 3:00 p.m. to 11:00 a.m. shift. The anonymous caller stated that a black man named Tony would be driving a white van on Piney Ridge Road and that Tony would have cocaine and marijuana in his possession. The anonymous caller gave the officer the van’s license plate number. The state police checked the number and learned that the van was registered to Appellant Anthony Wimbush. After also learning where Wimbush lived, they called the police in his area to notify them and found out that Wimbush was suspected of drug activity in his county.

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

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

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

Commonwealth v. White

On the morning of July 12, 1994, Officer Traci Matthews of the New Kensington Police Department responded to an anonymous 911 call about possible drug activity at the King’s Residence of the New Kensington public housing complex. The anonymous caller asserted that a black male, wearing a white shirt and white shorts, would exit the complex with drugs in his possession and get onto a girl’s black bicycle.

Officer Matthews drove to King’s Residence and saw a girl’s black bicycle outside the entrance to the complex. She circled the premises and returned to observe Appellant Lance White, a black male dressed in a primarily white T-shirt and white shorts, exit the complex and get onto a girl’s black bicycle. Once White reached the street, Officer Matthews stopped him, questioned him briefly about the anonymous call, and began to pat him down for weapons. The officer testified that White appeared nervous during this detention and that before she could finish her pat-down search, he ran from her. Shortly thereafter, Sergeant Floyd Newingham saw White, ordered him to stop and directed him to walk towards him. As White approached Sergeant Newingham, he dropped a bag containing sixteen individually-wrapped bags of crack cocaine. Sergeant Newingham placed White under arrest.

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

Discussion

The issue presented by both of these cases is the validity of the police officer’s investigatory stop. Appellants argue that the investigatory detention they were subjected to was unconstitutional since the anonymous tip and other purported corroborating evidence did not create a reasonable suspicion that they were engaged in criminal activity.² We agree.

An investigatory stop, which subjects a suspect to a stop and a period of detention but does not involve such coercive conditions as to constitute an arrest, requires a reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228-30 (1996). Reasonable suspicion depends upon both the content of the information possessed by the police and its degree of reliability. Commonwealth v. Wilson, 424 Pa.Super. 110, 115, 622 A.2d 293, 295-96 (1993) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990)). Thus, quantity and quality of information are considered when assessing the totality of the circumstances. Id. If information has a low degree of reliability, then more information is required to establish reasonable suspicion. Id.

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

Relying upon Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), a factually similar case³, the Court held in Jackson that the anonymous tip did not justify a stop and frisk of the defendant. Jackson, at 494, 698 A.2d at 576. In Hawkins, a plurality of the Court explained that when police receive an anonymous call alleging that a person of a particular description is carrying a gun at a particular location, and the police broadcast that information to patrol cars, neither the dispatcher nor the officers in their cars know whether the information is reliable. Hawkins, 547 Pa. at 656, 692 A.2d at 1070. The Court observed that an anonymous tip may be nothing more than a mere prank call. Id. At the same time, it may be based on no more than the caller’s unpartieularized hunch. Jackson, 548 Pa. at 490, 698 A.2d at 574; see also White, 496 U.S. at 329, 110 S.Ct. at 2415 (anonymous tips provide “virtually nothing from which one might conclude that the caller is either honest, or his information reliable”). Because of its unreliability, an anonymous radio call alone is insufficient to establish a reasonable suspicion of criminal activity. Jackson, supra; Hawkins, supra.

The Court in Jackson further explained that the fact that the police proceeded to the designated location and saw a person matching the description in the call did not corroborate any alleged criminal activity. Jackson, 548 Pa. at 492, 698 A.2d at 574-75 (quoting Hawkins, 547 Pa. at 656-57, 692 A.2d at 1070). Since anyone can describe a person who is standing in a particular location, “[something more is needed to corroborate the caller’s allegations of criminal conduct.” Id. In the typical anonymous caller situation, the police will need an independent basis to establish reasonable suspicion. Id.

As explained in Hawkins, where the police are acting on information supplied anonymously, the public will receive its full measure of protection by police who act within constitutional restraints. Hawkins, 547 Pa. at 657-58, 692 A.2d at 1071. When the police receive unverified information that a person is engaged in illegal activity, the police may observe the suspect and conduct an investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may be stopped and questioned. Id.

Since the police in Jackson and Hawkins acted on anonymous tips and had no independent reason to believe that the suspects may have been involved in criminal activity, the Court reversed the judgments of sentence. See also Commonwealth v. Kue, 547 Pa. 668, 692 A.2d 1076 (1997) (opinion announcing the judgment of the Court) (where, other than anonymous tip, there was no reason to believe that criminal conduct was afoot, an officer’s stop was unsupported by reasonable suspicion).

Applying the rationale in Jackson and Hawkins to the cases before the Court, the lower courts’ decisions cannot stand. In Commonwealth v. White, Officer Matthews proceeded to King’s Residence in response to an anonymous tip alleging that White was carrying drugs. As stated above, the anonymous tip alone, given its unreliability, could not create a reasonable suspicion that criminal activity was afoot. Therefore, Officer Matthews needed “something more” than just the anonymous tip in order to conduct a valid investigatory stop of White.

There was, however, no corroboration of the tipster’s allegations of criminal conduct to justify Officer Matthew’s stop. While White’s appearance was consistent with the anonymous caller’s overly general description and White did exit the housing complex on the described bicycle, Officer Matthews observed no unusual conduct which would suggest that criminal activity was afoot. As such, Officer Matthew’s surveillance produced no reason independent of the unreliable, anonymous tip to suspect that White was involved in criminal conduct. Rather, the only basis for Officer Matthew’s belief that a crime had been committed remained the information obtained from the uncorroborated tip that bore no indicia of reliability. Under Jackson, this basis is simply not adequate to establish the reasonable suspicion required to conduct an investigatory stop.

The Commonwealth argues, however, that the anonymous tip given in the instant case was similar to the one supplied to police in Alabama v. White, 496 U.S. 325,110 S.Ct. 2412,110 L.Ed.2d 301 (1990), which held that police corroboration of an anonymous tip that predicted a person’s future actions justified an investigatory stop.⁴ The anonymous tipster in Alabama v. White told police that the defendant would leave her apartment at a particular time, would travel to an identified motel and that she would have drugs inside a particular carrying case. The police stopped the defendant’s car just short of the identified motel. In upholding the stop, the United States Supreme Court found that the tipster’s information demonstrated “inside information — a specific familiarity with respondent’s affairs.” White, 496 U.S. at 332, 110 S.Ct. at 2417. The Court then held that if an anonymous tip provides such insider information, including facts relating to “future actions of third persons ordinarily not easily predicted,” then police corroboration of this insider information can support a finding of reasonable suspicion. Id. However, unlike the tip in Alabama v. White, the anonymous tip here did not predict behavior that revealed an intimate familiarity with White’s affairs. Rather, the only predictive flavor to the instant tip was a lone statement that a generically-described person would exit a complex and get on a black bicycle. Not only did the anonymous tipster fail to provide any information about White’s destination, but anyone in the King’s Residence complex could have been aware of White’s outfit and mode of transportation on the day in question. The tip here simply does not demonstrate the kind of insider information that was found to be pivotal to the Court’s holding in Alabama v. White.

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

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

The anonymous tip, however, was uncorroborated. The fact that the state police learned from local authorities that Wimbush was suspected of drug activity in his county did not corroborate that he was currently engaged in drug-related activity. The police saw no suspicious activity after it located the van and had no reason independent of the tip to believe that criminal activity was afoot. Under Jackson, the uncorroborated anonymous tip was insufficient to create a reasonable suspicion of criminal activity and did not justify the investigatory stop.

Although the Commonwealth makes no argument to this effect, we note that Alabama v. White is also distinguishable from the instant case, as it was in Commonwealth v. White. As discussed in the above analysis of Commonwealth v. White, the Court in Alabama v. White held that police were justified in conducting an investigatory stop when they were able to corroborate an anonymous tipster’s information that demonstrated a specific familiarity with the defendant’s affairs, including predictions relating to “future actions of third persons ordinarily not easily predicted.” White, 496 U.S. at 332, 110 S.Ct. at 2417. The White Court made clear that it was the police corroboration of the predictive aspects of the tip, and not the corroboration of facts existing at the time of the call, which provided police with the reasonable suspicion necessary to justify the stop. Here, however, the anonymous tip did not provide any predictive information, which would imply that the anonymous caller had a special familiarity with Wimbush’s affairs. Rather, the record establishes that immediately following the receipt of the anonymous tip, the police proceeded to Piney Ridge Road, where they discovered Wimbush’s parked van. Thus, Wimbush was already on Piney Ridge Road at the time police spotted his van. Shortly thereafter, Wimbush’s van proceeded northerly on Piney Ridge Road and the police followed.⁶ Since the anonymous tip in the instant case did not provide the type of “inside information” contained in the tip in Alabama v. White, the police did not have reasonable suspicion under White to stop Wimbush.

The Commonwealth contends, however, that although no traffic citation was issued to Wimbush, the police legally stopped the van because of a traffic violation. In rejecting this argument below, the trial court stated that a traffic violation was just a theory advanced to support the stop and that, in actuality, the van was stopped because of suspicion arising from the anonymous tip. We are bound by the court’s credibility determination. See also Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992) (finding theories advanced related to a traffic violation to be after-the-fact justifications, rather than valid reasons for a stop).⁷

For the reasons outlined above, we reverse the Superior Court’s decisions that affirmed the trial court’s denials of Appellants’ motions to suppress and remand for further proceedings consistent with this opinion.

Chief Justice FLAHERTY filed a concurring opinion. Justice ZAPPALA filed a dissenting opinion. Justice CASTILLE filed a dissenting opinion in which Justice NEWMAN joins.

1 . When reviewing the ruling of a suppression court, we are bound by the suppression court’s factual findings that are supported by the record. Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992).

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

3 . In Hawkins, a police officer also responded to a radio call stating that there was a man with a gun at a particular location. The radio call included a description of the suspect. When the officer arrived at the location, he saw the defendant who fit the description in the call. Based upon the anonymous call, the officer slopped and frisked the defendant.

4 . The United States Supreme Court recently reaffirmed the requirement that anonymous tips must contain predictive information in order to give the police reasonable suspicion in Florida v. J.L.,-U.S. --, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The Court explained that in order for an anonymous tip to have sufficient indicia of reliability the tip must exhibit predictive information that can be corroborated by police officers. Id. at---, 120 S.Ct. at 1378-79. In the absence of such predictive information, the anonymous tip leaves the police without any means to test the informant's knowledge and thus, cannot provide the officers with reasonable suspicion. Id.

5 . The additional fact that the drugs were not recovered during Officer Matthew's initial detention but were discarded and recovered after White's flight in response to Officer Matthew's illegal detention does not alter our finding that the drugs must be suppressed as the fruit of an illegal stop. In Commonwealth v. Matos, this Court held that where an individual is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with police in pursuit continues the seizure and any contraband discarded during the pursuit is considered a product of coercion and is not admissible against the individual. Matos, 543 Pa. 449, 672 A.2d 769 (1996). In the instant case, the Commonwealth argues that Matos does not preclude the pursuit of an individual who flees after he has been stopped by a police officer who possesses reasonable suspicion that criminal activity is afoot. However, since we find that Officer Matthews did not have the requisite reasonable suspicion to justify an investigatory stop of White, the drugs discarded by White were the fruit of a seizure which was unconstitutional from the outset, and the Commonwealth's argument necessarily fails.

6 . The dissenting opinions imply that the facts in Wimbush are almost identical to those in Alabama v. White. Particularly, in his dissent, Mr. Justice Castille relies on the fact that "the caller predicted that [Wimbush’s] vehicle would be proceeding along Piney Ridge Road, a limited access road in Huntingdon County, later that evening,” in reaching the conclusion that the police corroborated the predictive aspects of the anonymous tip. Dissenting opinion at 819. This statement conveys a predictive aspect to this tip that is unsupported by the record, since Wimbush was on Piney Ridge Road at the time the police observed his parked van and nothing in the tip itself indicated that Wimbush was anywhere other than Piney Ridge Road. In addition, the fact that Wimbush started driving along Piney Ridge Road after police had put his van under surveillance does not impart reliability to the anonymous tip, since any other driver would presumably have to drive along Piney Ridge Road in order to exit the road. Nothing in the record dispels this presumption.

The facts of this case are clearly not as predictive of future behavior as the facts presented in Alabama v. White. In White, the police were able to corroborate the predictions regarding White's future behavior, rather than merely verifying facts in existence at the time of the tip. And, even with this corroboration of future activity, the Court stated that White was a close case. Accord Florida v. J.L.,-U.S.--,-, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000). The facts and circumstances surrounding the anonymous tip in the instant case do not support a determination of reasonable suspicion since the tip here failed to provide the same level of predictive information as the anonymous tip in White.

7 . The Commonwealth also states that Wimbush’s voluntary consent to a search of the van provides an independent basis to sustain the search. The Commonwealth has the burden of establishing that the evidence found in a later search was not an exploitation of the illegal search. See Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977) (discussing test for admissibility of evidence found after an illegal arrest); Commonwealth v. Brooks, 468 Pa. 547, 364 A.2d 652 (1976) (same). The Commonwealth has failed to support this contention and its bare statement is insufficient to meet its burden of showing that the connection between the illegal stop and the subsequent search was so attenuated as to dissipate the taint. See id.