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Home My WebLink AboutCP-21-CR-0733-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEPHEN P. THOMPSON CP-21-CR-733-2005 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., September 12, 2005:-- Defendant, Stephen P. Thompson, is charged with possession with intent to deliver a schedule II controlled substance,1 and criminal use of a communication facility.2 He filed a motion to suppress evidence upon which a hearing was conducted on August 9, 2005. We find the following facts. On March 18, 2005, drug agents detained defendant after they saw him park his 1986 Ford Thunderbird near a bank in Carlisle. A certified drug dog was brought to the scene and it alerted on both door seams of the car. A search warrant was authorized for the car. The warrant was obtained upon the filing of an affidavit of probable cause by Vaughn E. Turner, II, an experienced narcotic agent assigned to the Office of the Attorney General of Pennsylvania. The substance of the affidavit is as follows: Your Affiant is completely familiar with the investigation currently pending in Cumberland County involving Stephen P. THOMPSON aka: "MONK." This Affidavit is submitted in support oa [sic] an Application for a search warrant for the vehicle previously described. Your Affiant has participated in and is familiar with the investigation herein described. The probable cause set forth in this Affidavit is based upon the participation of you [sic] Affiant in this investigation, information received from other state and local law enforcement officers, surveillance and other investigative 1 35 P.S. S 780-113(a)(3) and 780-118. 218 Pa.C.S. S 7512. CP-21-CR-733-2005 activity by you [sic] Affiant and other investigative officers, information received from cooperating individuals. In this investigation, your Affiant and other BNI agents have utilized a reliable cooperating individual (this individual's past information has led to the arrest and conviction of persons for felony drug violations) to place a recorded phone call to Stephen P. THOMPSON at telephone number 717-701- 2363. The cooperating individual then told THOMPSON that he/she needed to see him. The C/I advised this agent that they have purchased Cocaine from THOMPSON in the past 3 days and he has had what he/she needed on him. The C/I set up the meeting place to be behind the Advance Auto Parts and THOMPSON was positively identified by Detective Eric Dale as pulling into a parking space in a blue Ford Thunderbird behind Advance Auto Parts near the bank. THOMPSON was observed making furtive movements while parked in the area. Stephen P. THOMPSON was also positively identified through a PA operators [sic] license that he had on his person. At 1426hrs Detective Eric Dale conducted a K-9 scan of the vehicle with alerts on both door seams. Detective Dale's K-9 is certified through the North American Police Work Dog Association for Drugs and has been used successfully numerous times. Within the past 6 months Detective Jeff Kurtz has received information from 4 cooperating individuals that THOMPSON has been selling Cocaine in the Carlisle area. This agent has received information in the past 48 hours from 2 cooperating individuals that THOMPSON was selling quantities of Cocaine in the Carlisle area. These individuals are reliable confidential informants in that in the past they have provided information that has led to arrests and convictions in Cumberland County. THOMPSON is a black male with a date of birth of 12/01/1953, FBI#24425M10 and has 4 felony drug convictions. (Emphasis added.) A search of the car pursuant to the warrant resulted in the seizure of cocaine and $643 in cash. Defendant sets forth three reasons to suppress all evidence obtained as a result of the search of his Ford Thunderbird on March 18, 2005. We will review each of them: -2- CP-21-CR-733-2005 I. THE POLICE LACKED PROBABLE CAUSE TO DETAIN OR ARREST DEFENDANT BASED ON THE UNCORROBORATED TIP FROM A CONFIDENTIAL INFORMANT WHERE THE POLICE DID NOT OBSERVE HIM ENGAGED IN ILLEGAL ACTIVITY, DID NOT OBSERVE ANY TRANSACTIONAL BEHAVIOR, AND RELIED SOLELY ON THE STATEMENTS OF A CONFIDENTIAL INFORMANT. An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion based on specific and articulable facts that persons being detained are engaged in criminal activity. Commonwealth v. McClease, 750 A.2d 320 (Pa. Super. 2000); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (1968). At the time the police detained defendant to conduct an investigation using a drug dog, which then resulted in their obtaining a warrant to search his vehicle, they knew that: (1) their confidential informant had provided information in the past that led to the arrest and conviction of a person for felony drug violations; (2) the confidential informant told the police that he/she had purchased cocaine from defendant in the past three days and defendant "has had what he/she needed on him;" (3) the police monitored a telephone call between the confidential informant and defendant; (4) the confidential informant told defendant that "he/she needed to see him;" -3- CP-21-CR-733-2005 (5) the confidential informant set up an immediate meeting with defendant; and (6) defendant drove to that location as planned. This information constituted reasonable suspicion based on specific and articulable facts that defendant was transporting cocaine to sell to the confidential informant as he had in the past three days. Coupled with the drug dog alerting on both door seams of defendant's car, the police had probable cause for the issuance of a search warrant. Upon seizure of the cocaine in the car, they had probable cause to arrest defendant. II. THE POLICE HAD INSUFFICIENT REASONABLE SUSPICION TO SEIZE DEFENDANT'S VEHICLE AFTER HE WAS ARRESTED, FOR THE PURPOSE OF A DOG SNIFF. Defendant was not arrested before the dog sniff. He was subject to an investigatory detention during which the dog sniff was conducted. A search warrant was then obtained, and defendant's vehicle was searched. The cocaine was seized, and then defendant was arrested. III. THE SEARCH WARRANT WAS FATALLY FLAWED WHERE THERE WAS A MATERIAL MISSTATEMENT OF FACT IN THE PROBABLE CAUSE AFFIDAVIT RELATING TO THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, INDICATING INFORMATION FROM THE CONFIDENTIAL INFORMANT HAD LED TO THE CONVICTIONS OF MORE THAN ONE PERSON WHICH WAS IN FACT UNTRUE. -4- CP-21-CR-733-2005 At the suppression hearing, Agent Turner acknowledged that there was a mistake in the affidavit of probable cause for the search warrant in that the confidential informant had provided information in the past leading to only one arrest and conviction, not "the arrest and conviction of persons." In Commonwealth v. Tucker, 252 Pa. Super. 594 (1978), the Superior Court of Pennsylvania stated that, "misstatements of fact will invalidate a search warrant and require a suppression of the fruits of the search only if the misstatements of fact are deliberate and material." In Commonwealth v. Yucknevage, 257 Pa. Super. 19 (1978), the Court stated that in determining whether a misstatement is material: the test is not whether the misstatement strengthens the application, but rather is it essential to it. This is determined by deleting the misstatement from the application and then seeing whether the application still states enough to show probable cause. In the present case, when the misstatement is deleted, the only change is that the confidential informant had provided information in the past that led to the arrest and conviction of one person for a felony drug violation, rather than "persons." Thus, there is still a basis for considering the confidential informant, who made statements to the police against her penal interest, reliable. The misstatement that the confidential informant had provided information in the past leading to arrest and conviction of persons, in contrast to one person, was not essential to the application. Therefore, it is not material and is not a mistake that invalidates the search conducted pursuant to the warrant. For the foregoing reasons, the following order is entered. -5- CP-21-CR-733-2005 AND NOW, this suppress evidence, IS DENIED. John Dailey, Esquire Assistant District Attorney Robert J. Daniels, Esquire F or Defendant :sal ORDER OF COURT day of September, 2005, the motion of defendant to By the Court, Edgar B. Bayley, J. -6- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEPHEN P. THOMPSON CP-21-CR-733-2005 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this day of September, 2005, the motion of defendant to suppress evidence, IS DENIED. By the Court, Edgar B. Bayley, J. John Dailey, Esquire Assistant District Attorney Robert J. Daniels, Esquire F or Defendant :sal