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filed: October 2, 1986.


Appeal from the Judgment of Sentence of December 30, 1985, in the Court of Common Pleas of Snyder County, Criminal at No. 132-1984.

Wieand, Beck and Watkins, JJ.

Per Curiam

Judgment of sentence affirmed.


I dissent. Appellant argues that the police did not have probable cause to stop him and that the ensuing search was therefore illegal. I agree and would reverse.

The events leading up to the stop of appellant are described by the trial court as follows:

The defendant had, by agreement made an order of court on April 15, 1983, in Hoover v. Hoover #77, 1983, Snyder County, stipulated to a custody arrangement concerning his children whereby inter alia he agreed not to drink alcoholic beverages while exercising his rights under the order. (Paragraph 6 of the order.) A violation of this section of the order would, by its terms, subject Mr. Hoover to immediate forfeiture of his rights under the order.

On September 21, 1984, the defendant and his ex-wife, Christina F. Carr had a telephone conversation concerning themselves and custody of their son in which the defendant used profanity, spoke angrily, was threatening and generally uncooperative.

After speaking with the defendant and concluding he was intoxicated, Ms. Carr called the Sheriff's Department and spoke with Deputy Savidge, informing him of the existence of the order and that Mr. Hoover was violating it because he had physical custody of Nicholas Hoover and was drinking alcohol.

In response, Deputy Savidge went to Ms. Carr's residence where he obtained a copy of the above mentioned order, verified Ms. Carr's complaint, received a description of Mr. Hoover's Volkswagen, and apparently decided to attempt to enforce the order, i.e., remove the child, Nicholas, from the defendant.

Prior to going to the defendant's residence, Deputy Savidge went to the State Police Station at Selinsgrove and requested a State Trooper's assistance in his efforts to enforce the custody order. Trooper Fisher joined Deputy Savidge after receiving Deputy Savidge's account of what had occurred. The pair proceeded to the defendant's residence in Trooper Fisher's police cruiser. At the intersection of Salem Road and U.S. Route 522, nearly adjacent to defendant's apartment, at approximately 8:30 P.M., the officers observed a man in a car stopped at the intersection. The car fit the description given to Deputy Savidge by Ms. Carr.

At this point, Trooper Fisher signaled the defendant not to proceed by flashing his cruiser lights. Both officers then approached the defendant's vehicle.

The question before us is whether this stop was based on sufficient probable cause. I would find that it was not.

The trial court, in denying appellant's suppression motion, found that:

The initial stop was an investigatory stop based on a suspicion of a violation of the Vehicle Code, i.e., the suspicion that the defendant was driving under the influence of alcohol. The auspicions of the police officers were based on the following specific and articulated facts: (1) the information received from defendant's former wife both by initial phone conversation and on personal interview; (2) observing the defendant in the control of a car on the highway of the Commonwealth.

The trial court then concluded that the statements of appellant's former wife were "statements of an informer which have the required indicia of reliability. The reliability comes from Ms. Carr's status as defendant's former wife and her reasonably inferable special knowledge of defendant's personality traits when drinking alcohol." This was error.

The standard for assessing the reliability of an informant was stated by this court in Commonwealth v. Tate, 237 Pa. Super. 104, 346 A.2d 570 (1975):

The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), enunciated the standard for determining the sufficiency of the probable cause supporting a search. The court there stated, in effect, that: (1) the officer must know the underlying circumstances from which the informer concluded that the suspect was guilty of a crime, and (2) the officer must have some reason to believe the informer is telling the truth. The first requirement is met where the informant was obtained or describes the criminal activity in detail, see Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972); the second requirement may be met if the informant has furnished reliable information in the past. See Commonwealth v. Samuels, Pa. Super. , 340 A.2d 880 (1975).

Id. at , 346 A.2d at 572. Although the United States Supreme Court has since abandoned the Aguilar-Spinelli "two-pronged test" in Illinois v. Gates, U.S. , 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the veracity of the informant and the basis of her knowledge are still relevant considerations in determining whether probable cause exists. Commonwealth v. Sorrell, 319 Pa. Super. 103, 465 A.2d 1250 (1983).

In the instant case, neither requirement was met. The conclusion of appellant's ex-wife that appellant had been drinking was based not on personal observation but on appellant's disagreeing with her and his use of angry and profane language in a telephone conversation regarding their estranged relationship and custody of their son. That such a topic leads to disagreement, and even anger, is not surprising, and no indication of inebriation necessarily follows. Further, the informant was hardly a reliable one.

When the police encountered appellant, he was stopped in his car at a stop sign. He was breaking no traffic law, nor was he engaging in any unusual activity. Prior to approaching appellant's vehicle, then, the officers' only basis for their stop was a suspicion that appellant was driving under the influence, based on his ex-wife's description of her telephone conversation with him. Mere suspicions do not constitute probable cause. Commonwealth v. Smith, Pa. Super. , 511 A.2d 796, 801 (1986). See also Commonwealth v. Williams, Pa. Super. , 444 A.2d 1278 (1982).

The instant case is analogous to the "plain smell" cases. In those cases, courts have found no probable cause to support a search where police base that search solely on smelling the odor of marijuana, without observing any unusual behavior to indicate criminal activity is afoot. See generally Commonwealth v. Stainbrook, Pa. Super. , 471 A.2d 1223, 1225-27 (Beck, J., dissenting).

I conclude that the police did not have probable cause to stop appellant. Thus, the trial court erred in denying appellant's motion to suppress the evidence gathered as a result of that illegal stop. I would reverse.


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