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COMMONWEALTH PENNSYLVANIA v. THOMAS ALEXANDER HOOVER (10/02/86)

filed: October 2, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS ALEXANDER HOOVER, APPELLANT



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.

ING MEMORANDUM BY BECK, J.:

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 ...


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