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HomeMy WebLinkAboutCP-21-CR-2194-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JEFFREY WILLIAM PEIPER NO. CP-21-CRIMINAL 2194 - 2004 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., June , 2005 After a bench trial the defendant was convicted of Driving under the Influence, General Impairment1 and Driving under the Influence, Highest Rate? He has filed this timely appeal from our sentencing order of May 3, 2005. The only issue raised on appeal involves whether the police officer "had the requisite probable cause to stop defendant's vehicle. ,,3 The appellate issue stems from our refusal to grant defendant's omnibus pretrial motion in the form of a motion to suppress evidence. We conducted an evidentiary hearing in connection with the motion on January 10,2005. We will summarize the facts established by the testimony presented at the hearing. On March 19, 2004 at 7:01 p.m. a private citizen, Walter Garner, used his cell phone to notify Cumberland County control of a possible DUI. County Control directed the North Middleton Township police to respond to the incident. Since the officers were coming from the other end of the township, it took them several minutes to get to the scene. While they were enroute, Mr. Garner followed the defendant and used his cell phone to keep the police informed of events. 1 75 Pa. C.S.A. ~ 3802 (a) (1). 275 Pa. C.S.A. ~ 3802 (c). 3 See "Concise Statement of Matters Complained of on Appeal." NO. CP-21-CRIMINAL 2194 - 2004 Mr. Garner had first noticed the defendant in a local supermarket. The strong odor of alcohol on his breath gave Mr. Garner concern as to the defendant's ability to drive safely. He watched the defendant leave the supermarket, go to a nearby convenience store and then proceed to drive north on Spring Road. He also observed the defendant run the red light at the intersections of Spring Road and Calvary Road. All of the above information was relayed to the police in real time through County Control. The police eventually got behind Mr. Garner's van on Spring Road in the area of Creek Road. He identified the defendant's vehicle and allowed the officers' to pass him so that they could initiate the traffic stop. At their direction, Mr. Garner pulled into a Turkey Hill parking lot and was interviewed after the stop. The applicable law was summarized by the Superior Court in Commonwealth v. Lohr, 715 A.2d 459 (Pa.Super. 1998). As the Lohr court stated: It is well established "when the police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants are considered 'seized' and this seizure is subj ect to constitutional constraints." Commonwealth v. Knotts, 444 Pa.Super. 60, 64, 663 A.2d 216, 218 (1995). An investigatory stop of an automobile is justified only when it is based upon objective facts creating a reasonable suspicion the vehicle's occupants are presently involved in criminal activity. Commonwealth v. Valenzuela, 408 Pa.Super. 399,408, 597 A.2d 93, 98 (1991). To meet this standard, the officer must point to specific articulable facts which, together with the rational inferences therefrom, reasonably warrant the intrusion. Commonwealth v. Williams, 419 Pa.Super. 380, 385, 615 A.2d 416,419 (1992), alloc. denied, 533 Pa. 651, 624 A.2d 110 (1993). To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including "tips" from citizens. Commonwealth v. Wright, 448 Pa.Super. 621, 630, 672 A.2d 826,830 (1996). Naturally, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Commonwealth v. Ogborne, 410 Pa.Super. 164, 169, 599 A.2d 656, 659 (1991), alloc. denied, 530 Pa. 631, 606 A.2d 901 2 NO. CP-21-CRIMINAL 2194 - 2004 (1992) (quoting Alabama v. White, 496 US. 325, 330, 110 S.Ct. 2412, 110 L.Ed. 2d 301 (1990). When the underlying source of the officer's information is an anonymous call, the tip should be treated with particular suspicion. See Commonwealth v. Jackson, 548 Pa. 484, 490, 698 A.2d 571, 573 (1997) (referring to anonymous tip as basis for Terry stop and frisk). However, a tip from an informer known to the police may carry enough indicia of reliability for the police to conduct an investigative stop, even though the same tip from an anonymous informant would likely not have done so. See id. (citing Alabama v. White, supra). Indeed, "a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk." Id 715 A.2d at 461 - 462. The facts in Lohr are strikingly similar to the case at bar. The Lohr court summarized those facts as follows: While on patrol shortly before 8:00 p.m., on October 5, 1996, Officer James Stephen Flanagan received a radio dispatch indicating a possible DUI in the vicinity of the Giant Eagle parking lot in Edinboro. The report indicated a citizen telephoned the police department, stating he watched appellant erratically drive his red and white Ford Bronco into the parking lot and enter the store, seemingly intoxicated. The caller explained he followed appellant into the store and was able to smell alcohol coming from his general direction. It went on to conclude that the information provided by the citizen was sufficient to justify the stop. As it stated: The information implicating the vehicle was provided by a citizen caller who specifically detailed the incident to the police, indicating it was from ongoing personal observation. Thus the police knew how the caller knew what he averred, and that he had corroborated his visual conclusion with his olfactory sense; the police knew the subject of intoxication was within the ken of the average citizen. The caller's description of the vehicle as well as its location matched the officer's observation. Most importantly to this analysis, the caller gave his name to the police dispatcher, and remained on the telephone the entire time, at the very location of the incident. ... He exposed himself to police scrutiny and risk of prosecution had the information been contrived; we can hardly 3 NO. CP-21-CRIMINAL 2194 - 2004 presume citizens would do so unless their information was well founded. This warrants the logical conclusion the information was unlikely to be contrived. This report was consequently ingrained with a high degree of reliability, which did not necessitate an inordinate amount of corroboration to be credible. Under these circumstances, and upon Officer Flanagan's seeing the described vehicle in the described location, we find the totality of information justified the brief investigative stop. 715 A.2d at 462. The above analysis applies equally well to the case at bar. We could find no meaningful distinction between the facts in this case and those in Lohr. For that reason, we denied the defendant's motion to suppress evidence. DATE Edward E. Guido, J. Matthew P. Smith, Esquire For the Commonwealth Mark F. Bayley, Esquire F or the Defendant :sld 4