Commonwealth v. Pleummer

¶1dissenting:

¶2I respectfully dissent. I would reverse the suppression court’s order excluding 1,005 packets of cocaine as evidence against Alberto Pleummer.

¶3*62Pleummer was arrested after an anonymous tipster told police that a balding, bearded, dark-complected man wearing a blue tee shirt and blue shorts was standing next to a blue Pontiac in the 3200 block of North Randolph Street selling cocaine from a brown paper shopping bag. When police arrived at 3245 North Randolph Street 20 minutes later they saw a balding, bearded dark-complected male wearing a blue tee shirt and blue shorts showing another man the contents of a brown paper shopping bag while standing next to a blue Pontiac. The police then saw the suspect roll up the shopping bag, put it in the open trunk of the Pontiac, close the trunk, and walk away. The officers stopped Pleummer, frisked him, and used a key they found in his pocket to open the trunk of the Pontiac.1 The officers found the shopping bag in the trunk, opened it, saw clear plastic bags of glassine wrapped white powder, and arrested Pleummer.

¶4The question before this court is whether the police lawfully searched the trunk of the car. The general rule is that police may not search a home or any place in which a person has a reasonable expectation of privacy without a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A warrant is obtained after a neutral magistrate finds that probable cause exists for a search for evidence of a crime. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964). Probable cause is a product of a totality of the circumstances presented to the magistrate. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). See also Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991).

¶5Several exceptions to the warrant requirement exist, one of which pertains to automobiles. Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988). Automobiles are excepted from the warrant requirement because they are inherently mobile and citizens have a lower expectation of privacy in their cars than in their homes. Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985). Under the *63automobile exception an officer may search a car if he has independent probable cause to believe the automobile has been used in the furtherance of a felony or contains contraband or evidence of a crime. Id.

¶6Thus, the question becomes did the police have probable cause to believe the Pontiac at 3245 North Randolph Street contained contraband or evidence of a crime. Probable cause is defined as “a substantial basis for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331. The level of probable cause needed to invoke the automobile exception to the warrant requirement is the same as the probable cause needed for a warrant. Milyak, 508 Pa. at 10, 493 A.2d at 1350.

¶7Gatesteaches that when an anonymous tip is involved we look to the totality of the circumstances to determine whether probable cause exists. 462 U.S. at 230, 103 S.Ct. at 2328. Totality of the circumstances relies on corroboration of details of an informant’s tip by independent police work. Id. at 241, 103 S.Ct. at 2334.

¶8This court has held that general information from a known informant is sufficient probable cause for an officer to make an arrest, Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983), and that particularized information from an anonymous source broadcast over the police radio network creates reasonable suspicion to justify a Terry stop and frisk. Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983).

¶9In this case the totality of the circumstances were a detailed and particularized anonymous tip corroborated in every aspect by independent police observation. Under the Gatesand Rodriguezstandard of totality of the circumstances, I would find the police had probable cause to search the vehicle, to seize the cocaine, and then to arrest Pleummer.

¶10Today’s decision creates a new, and I believe untenable, standard by which to measure the totality of the circumstances. The majority opinion suggests that, in cases stemming from anonymous tips, probable cause will only be found if the tip either predicts future behavior which is corroborated *64by police surveillance or if the police observe at least suspicious, and possibly felonious, behavior after receiving the tip. I do not believe either requirement is demanded by our prior cases nor justified in this case.

¶11I would reverse the holding of the suppression court and admit the evidence against Pleummer.