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HomeMy WebLinkAboutCP-21-CR-0000911-2012 COMMONWEALTH v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT CP-21-CR-0911-2012 STEVEN GARY FITTING IN RE: OMNIBUS PRE-TRIAL MOTION OPINION and ORDER OF COURT Placey, C.P.J., 24 April 2013. Counsel for Defendant filed an Omnibus Pre-trial Motion to suppress evidence and statements on 1 March 2011. A hearing on the motion was heard 4 April 2013, and this opinion is written in support of the decision made following that hearing. FINDINGS OF FACT The following findings of fact are made on the basis of the cou transcript: 1. On 1 March 2011, an Officer with the Mount Holly Springs Borough Police Department received a dispatch to contact an individual; 2. The Officer contacted that individual, identifiable by sight but otherwise unknown to the Officer and who remains anonymous to this date; 3. Club located in the Carlisle Borough and would be traveling home to East Pine Street in Mount Holly Springs; 4. The individual described the vehicle as a GMC Jimmy and provided a color and license plate number to the Officer; 5. The Officer went to Mountain Street, which is the nearest intersection with East Pine Street, and began traffic enforcement while waiting for Defendant; 6. The Officer is unable to describe the amount of time that passed between the telephone call and the stop of Defendant; 7. However, the Officer indicated that he was watching traffic from the Mountain Street location and made at least one traffic stop prior to having contact with Defendant; 8. The Officer indicated that from his vantage point he could see up Mountain Road in the north-bound direction; 9. At approximately 13:32 hours, the Officer witnessed a vehicle coming down Mountain Road that he could see leaving the marked lane of traffic, going into the opposing lane by several inches; 10. The Officer noticed jerking motions as vehicles traveling in the opposite direction passed this vehicle and he watched the same vehicle make a wide sweeping turn onto Pine Street; 11. Prior to the turn, the Officer could not identify the type of vehicle, license plate number, or operator of the vehicle; 12. The Officer pulled out with the intention of conducting a traffic stop, but the vehicle had pulled making a stop unnecessary; 13. A non-corroborating video made by the Officer-car camera was 14. The Officer from behind the wheel; 2 15. Specifically, the Officer could see the double yellow lines of the roadway that are not visible in the video and acknowledged that they were faded but still visible from his vantage point; 16. Further, the Officer testified that the line-cross and jerking motions of opposing traffic described were not as readily apparent on the video. DISCUSSION in examining the credibility of witnesses and the weight to be given to their testimony. Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995). Finally, at a suppression hearing, the Commonwealth has the burden of Commonwealth v. Culp, 548 A.2d 578, 581 (Pa. Super. 1988). Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) 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 Commonwealth v. Wright, 672 A.2d 826, 830 (Pa. Super. 1996). Na required to establish the requisite quantum of suspicion than would be required if the tip Commonwealth v. Ogborne, 599 A.2d 656, 659 (Pa. Super. 1991) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)), appeal denied, 606 A.2d 901 (Pa. 1992). 3 In Commonwealth v. Wilson, 622 A.2d 293 (Pa. Super. 1993), appeal denied, 637 A.2d 283 (Pa. 1993), the Superior Court examined the requirements surrounding reasonable suspicion for automobile stops emanating from information provided by a tipster and explained: Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors quantity and qualitythe reasonable suspicion. Thus, 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 reliable. Id. at 29596 (citations omitted). When the underly tip should be treated with particular suspicion. Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997). However, a tip from an informer known to the police may carry enough indicia of reliability for the police to conduct an investigatory stop, even though the same tip from an anonymous informant would likely not be sufficient. Id. at 574. or herself at risk of prosecution for filing a Id. Probable cause for a warrantless arrest exists where the facts and circumstances that are within the knowledge of the officer at the time of arrest, of which he has reasonably trustworthy basis, are sufficient to warrant a man of reasonable caution to believe the suspect has committed or is committing a crime. Commonwealth v. Evans, 661 A.2d 881, 884-5 (Pa. Super. 1995); see also Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007). cause. Commonwealth v. Verdekal, 506 A.2d 415, 419 (Pa. Super. 1986). This 4 burden is only the probability, not a prima facie showing, of criminal activity as the standard of probable cause for a warrantless arrest. Evans, 661 A.2d at 885 (Pa. Super. 1995). Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference.Id. Mere suspicion of criminal activity is insufficient to prove probable cause for a warrantless arrest. Id. Application of law to facts. The tip from the identifiable but anonymous individual, whose reliability is unknown and whose tip is not subject to cross examination nor corroboration because of the elapsed time involved, is treated with no degree of reliability. Under the facts of this case, the Officer cannot combine his observations with the information from the tipster in order to give rise to the necessary reasonable suspicion required to briefly stop and investigate Defendant for driving under the influence. Indeed, all of the anonymous information being deemed unreliable eliminates its use from trial, absent the tipster being present in court and subject to cross examination as to credibility, motive, choice at trial whether to present this witness or not; however, if not presented, the tipsters information is specifically excluded from trial testimony. In reviewing the evidence presented, without the information given by the tipster, the facts are examined in order to determine whether another basis exists to support the . The Officer testified that he was able to observe Defendant 1 violate the driving on roadways laned for traffic section of the Vehicle Code. The is not corroborated by the in-car camera video presented as deo does show the approach of oncoming traffic, 1 75 Pa.C.S. § 3309(1). 5 which was a partial cause of the camera's view being testimony where a vehicle was present, which is an integral part of the probable cause standard for perceived 3309(1) violations found in Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001). Although not prima facie, this credible probable cause testimony by the Officer provides reasonable evidence to believe that the operator was in violation of a provision of the Vehicle Code and the stop was lawful. ORDER OF COURT th AND NOW24 April 2013 , this day of Omnibus Pre-trial Motion and following a hearing, the motion is granted in part and denied in part. Absent the anonymous source being present in court, testifying and being subject to cross examination, any evidence of information given by the tipster to the police is unreliable. Accordingly, the motion to exclude the anonymous source GRANTED information is and any statements made by the anonymous source are SUPPRESSED . The Officer having independent probable cause to stop the vehicle, without the use of the anonymous information, the results of that stop are admissible DENIED. and the remainder of the motion to suppress is BY THE COURT, _____________________________ Thomas A. Placey C.P.J. Distribution: John C. Dailey Senior Assistant District Attorney Michael Halkias Senior Assistant Public Defender 6