Does Uncorroborated Information Provided By Confidential Informant Provide Reasonable Suspicion For An Investigative Detention
Criminal Defense Attorneys in Reading, Eshelman & Shucker
It appears that the Pennsylvania Supreme Court is ready to decide if uncorroborated information provided by a known, but history-less, confidential informant provides reasonable suspicion for an investigative detention. Allocatur has been granted in Commonwealth v. Brown, 952 A.2d 1185 (Pa.Super.2008), reargument denied, petition for allowance of appeal granted (Pa. 2009), and decisions in other cases with the same issue are being withheld pending decision in the Brown case.
In Brown, the Pennsylvania Superior Court held that a tip by an informant, who had not proven to be reliable, stating that a white male was going to drive a car to a certain location within a two-hour window of time in order to distribute drugs, standing alone, was not enough to create a reasonable suspicion for the stop of defendant’s car. The police observed defendant Brown arrive, leave his car empty-handed, return with a brown paper bag, and drive away. The car was stopped, but the evidence seized in plain view and later with a search warrant, was suppressed. There was no showing that the informant was reliable or how he got his information. Merely showing up at the stated location, getting out of a car, and returning with a paper bag, in and of itself, is not illegal and does not corroborate anything. The Superior Court said that because there was no evidence that the confidential informant was reliable, “any statement by the informant must be considered akin to an anonymous tip, or at most a tip from a named citizen. Therefore, there must be corroboration to provide reasonable suspicion.”
I have a similar case pending decision in Berks County Court on a motion to suppress. In this case, the defendant and the history-less confidential informant were already on the parking lot when the police arrived and began surveillance. Both drivers exited their vehicles and had a conversation at the rear of the vehicles. Although the police could not hear the conversation, they saw defendant motioning the confidential informant toward the defendant’s vehicle. Both then entered defendant’s vehicle. When the confidential informant exited the defendant’s vehicle, he gave a prearranged signal that “drugs” were in the defendant’s vehicle. The police moved in, detained defendant, obtained incriminating statements, observed marijuana inside defendant’s vehicle, and later after arrest and Miranda, obtained similar incriminating statements. After obtaining a search warrant for the vehicle, 143 grams of marijuana and a digital scale were seized. At no time had the police observed the defendant or the confidential informant examining any objects or exchanging anything.
[As a criminal defense lawyer in Reading,] I argued that there was no evidence of the reliability of the confidential informant, and the actions of the defendant on the parking lot observed by the police were innocuous. In this context, the signal from the confidential informant to the police that drugs were in the defendant’s vehicle was meaningless, especially since the police had observed neither the defendant nor the confidential informant examining any objects or exchanging anything, citing In the Interest of O.A., 552 Pa. 666, 678, 717 A.2d 490, 496-497 (1998) (plurality decision). It was unclear whether the informant observed “drugs” in close proximity, nor was there any assertion that the informant had provided information leading to any prior narcotics arrests or other information which would establish the informant’s familiarity with “drugs.” Accordingly, based upon the information provided by the known, but history-less confidential informant, and the lack of corroboration by the police, no reasonable suspicion existed for the investigative detention of the defendant. Because the actions of the police were in violation of the Fourth Amendment of the Constitution of the United States and Article I, Section 8 of the Pennsylvania Constitution, all of the evidence should be suppressed.