MEMORANDUM ORDER
JOSEPH FARNAN JR., District Judge
Presently before the Court are Defendant Vascular Solutions, Inc.'s Motion To Transfer Under 28 U.S.C. § 1404 (D.I. 12) and Motion to Stay (D.I. 33). Also before the Court is Plaintiff Angiodynamics, Inc.'s Motion To Dismiss Vascular Solutions, Inc.'s Affirmative Defense And Counterclaim of Inequitable Conduct (D.I. 23). For the reasons discussed, Defendant's Motion To Transfer Under 28 U.S.C. § 1404 will be granted. This action, including Defendant's Motion to Stay (D.I. 33) and Plaintiff's Motion To Dismiss Vascular Solutions, Inc.'s Affirmative Defense And Counterclaim of Inequitable Conduct (D.I. 23), will be transferred to the United States District Court for the District of Minnesota.
I. Background
On July 29, 2009, Plaintiff Angiodynamics, Inc. ("Plaintiff") initiated the present action against Defendant Vascular Solutions, Inc. ("Defendant"). (D.I. 1.) Plaintiff alleges that Defendant is directly and/or indirectly infringing U.S. Patent Nos. 7,273,478 and 7,559,329 (collectively, the "patents-in-suit") by making, using, selling, offering to sell, and instructing users how to use Defendants' Vari-Lase products, including its Bright Tips fibers and procedure kits. (Id. ¶ 8.) The patents-in-suit generally relate to laser treatments for varicose veins. (D.I. 14, at 3; D.I. 19, at 2.) Plaintiff is incorporated in Delaware and maintains its principal place of business in New York. (D.I. 1 ¶ 5.) Defendant is incorporated in Minnesota and maintains its principal place of business in Minneapolis, Minnesota. (Id. ¶ 6.)
II. Parties' Contentions
With regard to the private interest factors, Defendant contends that Plaintiff's choice of forum is entitled to diminished deference because Delaware is not Plaintiff's "home turf," despite being the state of its incorporation. (Id. at 6-8.) Defendant further contends that to the extent there are valid infringement claims they arose in Minnesota. (Id. at 8-9.) In addition, Defendant argues that Minnesota is more convenient for five former employees who reside in Minnesota and cannot be subpoenaed by this Court, and whom Defendant claims will be witnesses in the case. (Id. at 9-11.) Finally, Defendant contends that documents and tangible items, such as the devices used in the allegedly infringing method, are located in Minnesota. (Id. at 11.) Turning to the public interest factors, Defendant contends that the relative administrative burdens, namely differences in disposition time due to the judicial vacancy in the District of Delaware.
Plaintiff contends that none of the private interest factors weigh in favor of transfer, and specifically, that Delaware is Plaintiff's "home turf," that Plaintiff's choice of forum is entitled to paramount consideration, and that Defendant's choice of forum is entitled to little or no weight. (D.I. 19, at 5-8.) Further, Plaintiff contends that its claims arise from Defendant's nationwide activities, and notes that Defendants' own counterclaims actually arise from activities in New York or Virginia, and not Minnesota. (Id. at 8-9.) Plaintiff also argues that Defendant is well-equipped to litigate in Delaware, and that none of the witnesses are shown to be unavailable in the Delaware. (Id. at 9-11.) With respect to the five former employees identified by Defendant as potential witnesses, Plaintiff contends that Defendant failed to demonstrate "that their intended testimony will be directed to any important issues." (Id. at 12-13.) In contrast, however, Plaintiff notes that the prosecuting attorney for one of the patents-in-suit is likely to testify regarding the inequitable conduct counterclaim, and Delaware is more convenient for him because he works in New York. (Id. at 13.) Finally, the location of records and physical evidence does not favor transfer, according to Plaintiff, because the inconvenience of shipping records and products to Delaware is minor. (Id. at 14.) Turning to the public interest factors, Plaintiff contends that any practical considerations are insufficient to overcome Plaintiff's choice of forum, and that none of Defendant's alleged administrative and efficiency concerns are compelling. (Id. at 15-16.) Further, Plaintiff contends that no local interests are implicated in this action because patent cases involve federal issues and thus do not present local interests. (Id. at 16.)
III. Legal Standard
Under 28 U.S.C. § 1404(a), "for the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." In determining whether to transfer a case pursuant to § 1404(a), courts in the Third Circuit apply the public and private interest factors outlined in Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995). Courts consider the following private interests: (1) the plaintiff's choice of forum; (2) the defendant's preferred forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses, but only to the extent that the witnesses may be unavailable for trial in one of the fora; and (6) the location of books and records, again, only to the extent that they may not be available in one of the fora. Id. at 879. Courts consider the following public interests: (1) the enforceability of the judgment; (2) practical considerations that could make the trial easier, quicker, or less expensive; (3) court congestion; (4) local interest in the controversy; (5) public policies of the fora; and (6) the trial judge's familiarity with the applicable state law. Id. at 879-80. A transfer will be denied if the factors are evenly balanced or weigh only slightly in favor of the transfer. Cont'l Cas. Co. v. Am. Home Assurance Co., 61 F. Supp. 2d 128, 131 (D. Del. 1999).
IV. Discussion
Generally, Plaintiff's choice of forum is entitled to "paramount consideration," and should not lightly be disturbed.Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). The movant's burden in overcoming the plaintiff's choice of forum is somewhat lessened where, as here, the plaintiff has not filed suit in its "home turf." Waste Distillation Tech., Inc. v. Pan Am. Res., Inc., 775 F. Supp. 759, 764 (D. Del. 1991); see also Pennwalt Corp. v. Purex Indus., Inc., 659 F. Supp. 287, 289 (D. Del. 1986) (internal quotations omitted) ("[W]here a plaintiff chooses to litigate away from its principal place of business, the quantum of inconvenience to defendant needed to tip the balance strongly in favor of transfer necessarily will be less than in the case where plaintiff's choice of forum is highly convenient to plaintiff.") Nevertheless, the Court still accords Plaintiff's choice of forum substantial weight because the choice of this forum relates to Plaintiff's legitimate, rational concerns as a Delaware corporation. See Waste Distillation, 775 F. Supp. at 764 (noting that even if plaintiff does not bring suit in its "home turf," that choice is still accorded substantial weight if related to the plaintiff's legitimate, rational concerns); Nice Sys., Inc. v. Witness Sys., Inc., C.A. No. 06-311-JJF, 2006 WL 2946179, at *2 (D. Del. Oct. 12, 2006) ("A corporation's decision to incorporate in a particular state is a rational and legitimate reason to choose to litigate in that state.").
On the specific facts presented here, the Court concludes that the private and public interest factors weigh in favor of transfer, thus overcoming the deference given to Plaintiff's choice to file suit in the District of Delaware. Looking first to the private interest factors, Plaintiff claims that its infringement claims are based on Defendant's nationwide activities and that the allegedly infringing products have been sold in Delaware. To that extent, this factor does not favor transfer. However, the indirect infringement claims appear to have largely arisen in Minnesota, where the allegedly inducing instructions were drafted. Despite Plaintiff's contentions that the inducement of infringement claims also arose from Defendant's participation in trade shows, notably, Delaware is not one of the numerous states in which these trade shows allegedly took place. Therefore, on the whole, this factor weighs slightly in favor of transfer to Minnesota.
The convenience of the witnesses also favors transfer. Defendant has identified five former employees who could not be subpoenaed for trial, and who are likely to possess information relevant to Plaintiff's direct and indirect infringement claims. Three of the identified witnesses are inventors of the device which allegedly infringes the patents-in-suit, and two others were integral in drafting the allegedly inducing instructions. There is no countervailing evidence that any witnesses who would be available for trial in Delaware would be unavailable in Minnesota.
Defendant contends that all relevant documents and physical evidence is in Minnesota, and that it would be onerous to produce them for trial in Delaware. While this may be so, there is no indication that the evidence would be unavailable in Delaware, and accordingly, the Court concludes that this factor does not favor transfer.
Although Defendant may be capable of shouldering the burden of litigating in Delaware, as Plaintiff contends, the Court nonetheless finds that the convenience of the parties weighs in favor of transfer. Defendant's current employees who may possess relevant information, as well as potentially relevant prototypes of the devices allegedly used to infringe, are all located in Minnesota. While the witnesses and evidence may not be unavailable for production in Delaware, the Court cannot ignore that Minnesota is the more convenient forum in this regard.
With respect to the public interest factors, the enforceability of the judgment, the public policies of the fora, and the familiarity of the trial judge with applicable state law are all neutral, as the parties do not argue these factors. The local interest factor is also neutral because "patent issues do not give rise to a local controversy or implicate local interests."TriStrata Tech., Inc. v. Emulgen Labs., Inc., 537 F. Supp. 2d 635, 643 (D. Del. 2008). As is made clear from the previous discussion on convenience of the witnesses and parties, some of the practical considerations favor transfer to Minnesota.
Aside from Plaintiff's incorporation, Delaware has a limited connection to this litigation. In contrast, most of the potential and identified witnesses, and relevant records and evidence are located in Minnesota. Although the Court hesitates to override Plaintiff's rational choice of forum, in the specific circumstances of this case, the Court concludes transfer is warranted.
NOW THEREFORE, IT IS HEREBY ORDERED that Defendant Vascular Solutions, Inc.'s Motion To Transfer Under 28 U.S.C. § 1404 (D.I. 12) is GRANTED.
es371 U.S. 471,
83 S.Ct. 407,
9 L.Ed.2d 441 (1963), the Supreme Court re-affirmed the basic principle that evidence derived from unconstitutional police conduct must be suppressed.
In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person,
Boyd v. United
States, 116 U.S. 616,
6 S.Ct. 524,
29 L.Ed. 746, this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search.
Weeks v. United States, 232 U.S. 383,
34 S.Ct. 341,
58 L.Ed. 652. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.
Silverthorne Lumber Co. v.
United States, 251 U.S. 385,
40 S.Ct. 182,
64 L.Ed. 319.
Id. at 484-85,
83 S.Ct. 407. Thus, the "exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion."
Id. at 485,
83 S.Ct. 407. In extending the rule to verbal evidence, the
Wong Sun Court again referred to all evidence derived from unconstitutional police conduct as fruits of the poisonous tree, which cannot be used against a defendant.
The Wong Sun Court continued that the exclusionary rule does not prevent the introduction of evidence that is "gained from an independent source," but rather applies only to "knowledge gained by the Government's own wrong." Id. at 485, 83 S.Ct. 407 (quoting Silverthorne Lumber Co., supra at 392, 40 S.Ct. 182). The Supreme Court in Wong Sun noted that evidence is admissible if the "connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint." Id. at 487, 83 S.Ct. 407 (quotation marks and citation omitted). The Supreme Court ruled: "We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. at 487-88, 83 S.Ct. 407 (quotation marks and citation omitted). Thus, where evidence was obtained through constitutional police action unconnected with the illegal police conduct, it is "purged" of "taint" based upon its derivation from an independent source.
The Supreme Court further expounded on the concept of the independent source doctrine in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). In that case, the Court granted review to "decide whether, because of an earlier illegal, entry, the Fourth Amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence." Id. at 797-98,104 S.Ct. 3380.
In that case, drug enforcement officers made an invalid warrantless entry into the defendant's apartment because there were no exigent circumstances permitting such an entry. However, the drug agents did not conduct a search of the premises with the exception that they visually inspected each room solely to ensure that no one was present who posed a threat or would destroy evidence. The drug officers then secured the apartment in order to preserve the status quo while a search warrant was procured. Significantly, the drug enforcement officers did not seize any evidence, even that in plain view, until the warrant arrived. Additionally, the government did not use any information that was found due to the initial entry into the apartment to support issuance of the warrant.
The Supreme Court held that, even though the initial warrantless entry into the apartment was illegal, it did not taint the discovery of the evidence found and seized pursuant to the warrant. It reasoned that "the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as `fruit' of the illegal entry." Id, at 799, 104 S.Ct. 3380. The Supreme Court concluded that suppression was unnecessary "because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence under Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)." Id. The Supreme Court noted that the evidence obtained as a result of the valid warrant did not result to any extent from the original, invalid entry. It observed:
It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is "so attenuated as to dissipate the taint,"
Nardone v. United States,
supra, 308 U.S., at 341,
60 S.Ct., at 268. It is not to be excluded, for example, if police had an "independent source" for discovery of the evidence[.]
Id. at 805,
104 S.Ct. 3380.
Thus, the "independent source rule" naturally flows from the concept of the exclusionary rule itself and has been extant since 1920. In the present case, the independent source rule unquestionably applies. First, as analyzed supra, police had probable cause to believe that Appellant was dealing drugs from the Expedition, and, therefore, that it contained contraband. They drove the vehicle from the driveway to the police station to conduct the canine sniff and wait for the warrant. Police did not search the Expedition while driving to the police station, and no information gleaned during that ride was utilized to support the warrant. Thus, the warrantless seizure of the vehicle did not result in the discovery of a scintilla of evidence used by the government in any aspect of this prosecution.
The information supporting the canine sniff and the warrant was not derived to any extent from the singular act of taking the Expedition from the driveway to the police station to secure it. Rather, those two searches were based upon facts learned prior to the act of transporting the vehicle. Thus, the independent source doctrine, as articulated in Segura, is directly applicable.
Our Supreme Court examined a similar situation in the case of Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61 (1994). Therein, Appellant was arrested inside his home without a warrant and without the existence of exigent circumstances. Our Supreme Court first concluded that the arrest was unconstitutional because "absent exigent circumstances, an arrest warrant supported by probable cause is required to arrest an individual in his home." Id. at 68. (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).
The Carter Court then addressed the defendant's requested relief pursuant to that illegal arrest. Specifically, the defendant asked the Court "to reverse his conviction because his arrest was illegal," but the Court declined to do so. It observed that the defendant was "not himself a suppressible fruit, and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." Id. (emphasis added) (quoting United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)). Our Supreme Court continued: "The remedy for a violation of the Fourth Amendment is exclusion of all evidence that is the fruit of that violation." Id. (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). It then concluded that since "there was no evidence introduced at trial that was obtained as a result of the illegal arrest," the defendant was "not entitled to any relief." Id. Herein, Carter applies. Appellant cannot obtain relief based upon the improper seizure of his vehicle because no evidence resulted from that seizure. Rather, his conviction is premised entirely upon evidence completely untainted by the police misconduct at issue herein.
More recently, our Supreme Court employed similar reasoning when deciding that a confession that defendant made following his invalid arrest was admissible at trial. Commonwealth v. Smith, 995 A.2d 1143 (Pa. 2010). In that case, the police arrested the defendant pursuant to an in-firm warrant that police mistakenly but in good faith believed was valid. After the arrest, the defendant was administered Miranda warnings three times, waived his constitutional rights, and confessed.
In seeking relief under the PCRA, the defendant in Smith argued that prior counsel was ineffective for not obtaining suppression of the confession based upon the taint of the illegal arrest. Our Supreme Court rejected the defendant's position on the merits. Relying partially upon Wong Sun, it concluded that his confession was voluntary and therefore not subject to exclusion based upon the fact that he had properly waived his Miranda rights and police had acted in good faith when they executed the warrant. As in Smith, any taint applicable to the evidence seized from the Expedition due to the police action of driving the car to the police station was purged by the securing of a constitutional canine sniff and warrant that were not premised upon any facts garnered during that drive. We therefore conclude that the suppression court properly refused to suppress the evidence found in the Expedition when the warrant herein was executed.
We now address the propriety of the K-9 sniff of the Expedition. In Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 79 (1987), our Supreme Court held that "a narcotics detection dog may be deployed to test for the presence of narcotics, on the facts of this case where: 1. the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and 2. the police are lawfully present in the place where the canine sniff is conducted." See also Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004). In the present case, Appellant argues that police were not "lawfully present in the place in which the canine search" was conducted. Appellant's brief at 16. This proposition is untenable. The canine search was conducted at the police station where police unquestionably were permitted to be present. Furthermore, as analyzed above, probable cause existed to believe that Appellant was selling drugs from the Expedition; therefore, reasonable suspicion was present to conduct the K-9 sniff of that vehicle.
The true crux of Appellant's argument relates back to the fact that the police drove his car to the police station where police were lawfully present. However, as analyzed supra, the facts supporting the existence of reasonable suspicion to conduct the search by the canine were not derived to any extent from the act of driving the Expedition to the police station. Instead, the facts supporting the canine sniff included the information provided to Officer Nolan by the CI and his observation of Appellant's activities on Myrtle Street. Hence, the canine sniff was not infirm.
Appellant's final position is that the suppression court, when analyzing the propriety of the conduct of Officer Nolan, "improperly credited" the information provided by the CI. Appellant's brief at 17. He assails the trustworthiness of the CI because the CI was paid two hundred do11ars for providing information against Appellant. He also contends that the CI was unreliable because he or she informed Officer Nolan that the drugs would be on Appellant's person whereas they actually were located in his car.
In the present case, the suppression court credited the testimony of Officer Nolan, who related the following. The CI telephoned Officer Nolan and advised Officer Nolan that "he or she had, just within the last five minutes, or just within the last couple minutes, had seen Rosha Williams, the defendant, seated in a black Expedition with large, large rims in the 300 Block of Myrtle, and that Williams had several baggies of crack cocaine on him that he was selling." N.T. Pre-Trial Hearing, 9/1/06, at 3-4. Officer Nolan continued:
Appellant thus misrepresents the record when he states in his brief that "Detective Nolan did not testify that the CI told him that [Appellant] was selling crack cocaine from his vehicle." Appellant's brief at 18.
[T]his source has provided me with information for over ten years. And as a result of this informant's information over twenty individuals have been arrested and convicted in State and Federal Court for felony drug violations. Additionally, we have seized — as a result of this informant's information, we seized over one hundred thousand dollars in drug proceeds and over five, or over ten kilos of cocaine and/or crack cocaine. So a combination of the two, ten kilograms of coke or crack —
Id. at 9/1/06, at 5.
The CI's information was corroborated by Officer Nolan's receipt of "numerous complaints over the past, over the previous several years regarding drug activity involving Mr. Williams in that particular area that the CI stated Williams was at." Id. at 6. In addition, Officer Nolan had firsthand knowledge that Appellant drove a black Expedition with "big chrome wheels, twenty-four inch wheels," and Officer Nolan related that Appellant was seen driving that vehicle on "numerous occasions." Id.
Based on the CI's telephone call, Officer Nolan immediately proceeded to Myrtle Street where he observed Appellant seated in his black Expedition parked "in the 300 Block of Myrtle right where the informant stated he would be parked." Id. at 6-7. The officer then viewed Appellant make three drug transactions in a twenty-minute time frame.
In leveling his claims, Appellant disregards the fact that the drugs were on Appellant's person during the course of the drug transactions. Thus, the CI was not incorrect when he told Officer Nolan that Appellant had drugs on his person. Furthermore, Appellant overlooks the pertinent law because "[i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa.Super. 2007) (quoting Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003)). Since it was within the suppression court's sole power to believe or disbelieve Officer Nolan's representations regarding the CI's information and reliability, we must necessarily reject Appellant's position that the suppression court "improperly credited" Officer Nolan's testimony in this respect.
Judgment of sentence affirmed.
Judge BENDER files a Dissenting Opinion in which Judge DONOHUE and Judge SHOGAN join.
DISSENTING OPINION BY BENDER, J.:
I respectfully dissent. Initially, I take issue with the Majority's conclusion that the tip provided by the confidential informant (CI) was sufficiently specific and adequately corroborated by Detective Sergeant Nolan's observations. The CI reported nothing more than could be observed by a passerby on the street, and Sergeant Nolan's observations, made with the naked eye from almost two blocks away, offer meager corroboration. Even viewed in their totality, those factors do not establish probable cause for a warrantless arrest, conducted on' private property, without exigent circumstances. In addition, I dispute the Majority's conclusion that the taint imposed by the warrantless seizure of Williams's wife's SUV (which was patently illegal) is purged by the independent source rule. In point of fact, the conduct of the Erie Police was unlawful from the moment of Williams's arrest and remained so throughout the warrantless seizure that followed. The officers acted illegally in removing the vehicle from the defendant's driveway thus tainting any subsequent effort to obtain evidence from it. Consequently, the canine search on which the Majority relies remains unlawful and the evidence seized should be suppressed.
The need for judicial suppression of evidence corresponds directly to the extent to which the police run afoul of the law in obtaining it. Consequently, our analysis of questions of suppression begins with the presumption that "[w]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible." Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802, 807 (2006) (Opinion Announcing the Judgment of the Court) (quoting Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030, 1031 (1992)). This constraint, which the Majority does not acknowledge, is indispensable to our disposition of the questions Williams raises.
In support of his first question, Williams asserts that the evidence police seized, consisting of $600 in cash and seven eight-balls of cocaine, properly should have been suppressed, as both were the products of an illegal arrest which police conducted without probable cause when he alighted from his vehicle. Brief for Appellant at 13-14. Absent some statutory provision to the contrary, a warrantless arrest must be supported by probable cause to believe that "(1) a felony has been committed; and (2) the person to be arrested is the felon." Commonwealth v. George, 878 A.2d 881, 884 (Pa.Super. 2005). Probable cause typically exists "[w]here the facts and circumstances within a police officer's knowledge would warrant a person of reasonable caution to believe that [the offense in question] has been committed." Id., see also Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87, 90 (1999) (quoting Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994)).
Where, as here, the arresting officer acted in reliance on information provided by an informant, probable cause depends on assessment of three factors: (1) the informant's veracity and reliability as documented by prior experience with the police, (2) the basis of his knowledge of the events or circumstances he reported, and (3) the particularity of the information he conveyed. See Luv, 735 A.2d at 90-93 (collecting and analyzing cases). Although our Supreme Court has not foreclosed the possibility that the tip of an "unusually reliable" informant may provide probable cause even where the basis of the informant's knowledge is unclear, see In the Interest of O.A, 552 Pa. 666, 717 A.2d 490, 496 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), the Court has been cautious in conferring the mantle of reliability on any informant in the absence of objective observations to substantiate the reported information. Indeed, the Court has admonished specifically that "[w]here police are acting solely on the basis of an informant's tip and the reliability of the confidential informant is not established by objective facts, it is essential that the tip provide adequate indication that the informant has actual knowledge that criminal conduct is occurring or has occurred at the time the warrantless arrest is made." Id. at 497 (emphasis added). The Court has directed accordingly that "[w]hen police are relying on an informant's tip, it is important that the tip provide information that demonstrates `inside information[,]' a special familiarity with the defendant's affairs." Id. at 496. Such information is subject to police corroboration through observation of the circumstances described in the tip, and is thereby verified as grounds for probable cause. See id.; see also Commonwealth v. Whitters, 805 A.2d 602, 606 (Pa.Super. 2002) ("When relying on an informant's tip, it is crucial that the tip provides information demonstrating a special familiarity with the defendant's affairs. . . . When the tip provides this inside information, police corroboration of that information imparts reliability to the tip, supporting a finding of probable cause."). In the absence of such information, however, the tip cannot provide grounds for a probable cause determination:
If
the facts that are supplied by the tip itself
are no more than those easily obtained then the fact
that the police corroborated them is of no
moment. It is only where the facts provide inside information, which represents] a special familiarity with a defendant's affairs, that police corroboration of the information imparts indicia of reliability to the tip to support a finding of probable cause.
O.A., 717 A.2d at 498 (emphasis added). Such information also serves the salutary purpose of assuring that informants are not motivated, either by promises of leniency
in pending prosecutions or, as here, by cash payments from the police, to provide speculative information culled from hearsay or casual observation of circumstances readily seen by anyone on a public street.
Upon review of the totality of the circumstances known to the Erie Police, including the tip provided by the confidential informant, I cannot find sufficient trustworthy information of a felony in progress to demonstrate probable cause. The substance of the tip, as related by Sergeant Nolan at the suppression hearing, provided only limited information:
I received a called [sic] from a confidential informant who informed me that he or she had, just in the last five minutes, or just within the last couple minutes, had [sic] seen Rosha Williams, the defendant, seated in a black Expedition with large, large rims in the 300 Block of Myrtle, and that Williams had several baggies of crack cocaine on him that he was selling.
N.T., Suppression, at 4-5. Unfortunately, this tip, although provided by an informant that Sergeant Nolan considered reliable, offers no suggestion of either the basis of the informant's knowledge or sufficient detail to indicate a level of familiarity with Williams's affairs. See Whitters, 805 A.2d at 606. It does not detail the circumstances by which the informant came upon the information he provided, and offers no information beyond the location and description of Williams's vehicle, save for the allegation that Williams had "several baggies of crack cocaine on him." Even that detail could not be corroborated, however, as when Sergeant Nolan ultimately stopped him, Williams did not have drugs on his person.
Moreover, although Sergeant Nolan attempted to corroborate the tip through observation, his recollections at the suppression hearing are completely devoid of detail — likely due to the distance from the scene at which he parked. What observations he made were further limited by the lack of ambient light, further limiting his perception, and the fact that he did not use binoculars or any other visual aid. Moreover, he saw nothing in the hands of the men who approached Williams's vehicle and did not report seeing them take anything from their pockets. Id. at 17. He saw no money, no drugs, indeed, no exchange of any kind. Id. at 7-8, 17. Objectively, he could report only that he saw three of the four men who approached the SUV look up and down the street and saw them reach inside the vehicle. Id. at 8. He offered no objective estimate of how long their hands remained inside, merely opining that it seemed "longer than what I would believe a handshake would last." Id. at 17. This characterization is entirely subjective, both in its assessment of how long a handshake should take and in its assumption that a handshake is the only innocent conduct in which Williams's acquaintances could have engaged by reaching inside the SUV. Thus, the Majority's conclusion that the CFs tip was corroborated by "direct observation of Appellant's behavior in conducting three drug sales within a twenty-minute period," Majority Op. at 617, is unfounded and incorrect. In fact, Sergeant Nolan saw almost nothing and what he did see was of little significance.
The Majority's effort to excuse these deficiencies by citing Nolan's past experience is equally unavailing; an officer's experience is not a substitute for solid police work in the case then under investigation. Although our Supreme Court has indeed recognized that an officer's experience "may be fairly regarded as a relevant factor in determining probable cause," see Commonwealth v. Thompson, 985 A.2d 928, 936 (Pa. 2009), our law continues to require contemporaneous observation, see id. (citing Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391, 394 (1973)), not speculation about unseen handshakes or the motivations of someone "in a black Expedition with large, large rims." Under more compelling circumstances we have declined even to find reasonable suspicion for an investigatory detention. See Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa.Super. 2002) (concluding that "furtive" shoulder movements observed by an arresting officer through the back window of a car after officer stopped motorist for a traffic infraction did not provide reasonable suspicion for passenger's detention).
In addition, I reject the majority's conclusion that unspecified "complaints from other [anonymous] citizens that Appellant sold drugs from that location" substantiated that Myrtle Street was "[an area] where narcotics were sold regularly" at the time of the events in this case. Majority Op. at 616-17 (citing Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009)). Although a verifiable determination of an area's character as high crime may relax the constitutionally required level of scrutiny to be imposed on determinations of probable cause, imprecise characterizations based on layered hearsay offered up by untrained, anonymous observers are of no value in summoning constitutional muster.
The Majority's analysis falls similarly short in its suggestion that "appellant's reputation from other sources as a drug dealer on Myrtle Street supported the CI's tip." Majority Op. at 617 (emphasis added). In point of fact, a defendant's "reputation" is constitutionally irrelevant to the validity of the tip which, as discussed supra, can be verified only through demonstrated familiarity with the circumstances occurring at the time the tip is tendered. See O.A., 717 A.2d at 498. Thus, I find the inadequacy of Sergeant Nolan's observations self-evident and the resulting stop unlawful.
As the Majority recognizes, the interaction of the Erie Police with Williams culminated in the latter's arrest, which occurred when police placed Williams in handcuffs, confined him to the police car, and drove him to the police station. To support the arrest, however, Sergeant Nolan could point only to the discovery on Williams's person of the money he felt in Williams's pocket during the Terry patdown. The police did not seek a warrant to search the SUV at that time; nor did Sergeant Nolan discern the baggy tucked into the headliner until the vehicle was parked at the Erie police station. Consequently, the police had no objective evidence at that time of any contraband inside the vehicle. Although the officers apparently recognized that they did not have probable cause for a search of the vehicle until they verified the likely presence of illegal drugs at the police station, they failed to recognize the complete absence of probable cause to take Williams into custody. In fact, they acted on no more than a hunch based on an uncorroborated tip, a wad of cash found on Williams's person, and tenuous "observations" by Sergeant Nolan. Even considered together, deficient as they are, these elements do not establish probable cause. Accordingly, I would find Williams's arrest illegal and all discoveries made thereafter to be "fruit of the poisonous tree" subject to suppression.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Were the Majority to adopt such a disposition of Williams's challenge to the legality of his arrest, I would find no occasion to consider his challenge to the warrantless removal of the SUV from his driveway and the resulting discovery of cocaine under the headliner. Because the Majority reaches a contrary conclusion, however, I will address that issue further. Regrettably, the Majority offers no direct recognition that the police acted illegally in removing Williams's vehicle from the constitutionally protected space of Williams's home. See Majority Op. at 618 (discussing Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101, 103-04 (1978)). Nevertheless, it reasons that the taint of illegality resulting from the vehicle's removal is ameliorated by the independent source rule. I find this disposition untenable. Removal of the vehicle was flagrantly illegal and the discovery of the cocaine inside resulted directly from that illegality.
Addressing the search of a vehicle following the driver's arrest, our Supreme Court has recognized:
It is reasonable . . . for constitutional purposes, for police to seize and a hold a car until a search warrant can be obtained, where the seizure occurs after the user or owner has been placed into custody, where the vehicle is located on
public
property, and where there exists probable cause to believe that evidence of the commission of a crime will be obtained from the vehicle.
Holzer, 389 A.2d at 106-07. However, the Court has also acknowledged that the same actions on
private property are problematic:
Where the vehicle is located on the defendant's private property (garage or driveway), it becomes more difficult, although not impossible, to find the police conduct reasonable, since there has been a greater infringement upon defendant's expectations of privacy.
Id. at 106 n. 7 (citing
Coolidge v. New Hampshire, 403 U.S. 443, 463 n. 20,
91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). In accordance with the constraints imposed in
Holzer, the Majority recognizes that the presence of Williams's vehicle on private property "constitutes a significant impediment to condoning the police conduct herein." Majority Op. at 618. Consequently, the Majority invokes the independent source rule to insulate the subsequent discovery of contraband inside the vehicle from the inevitable mandate of the exclusionary rule, which compels that the evidence be suppressed.
Tracking the rule, the Majority concludes that "Appellant cannot obtain relief based upon the improper seizure of his vehicle because no evidence resulted from that seizure. Rather, his conviction is premised entirely upon evidence completely untainted by the police misconduct at issue herein." Majority Op. at 621. On this issue, the Majority is simply wrong.
The independent source rule operates to negate the exclusionary rule by distinguishing the manner in which the evidence in question was obtained. If the evidence was obtained through some means other than unlawful conduct of the police, it is obviously not subject to suppression on the basis of the unlawful search. Similarly, if the connection between that unlawful search and the evidence seized can be "so attenuated as to dissipate the taint," see Segura v. U.S., 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), an "independent source" is established. In either event the exclusionary rule is rendered inapplicable, as exclusion of the evidence would provide no deterrent to future unlawful conduct by the police.
Contrary to the Majority's determination, the independent source rule does not apply here for the simple reason that the seizure of the vehicle from Williams's driveway was itself an illegal act to which the subsequent discovery of cocaine was directly attributable. The police had no more authority to seize the vehicle and remove it from the property than they had to search it while it remained there. Given the absence of anything on Williams's person beyond a wad of cash, a search of any sort, including a canine sniff, could not be sustained while the SUV remained on Williams's private property. Evidently cognizant of that, the police simply removed the vehicle from the driveway with the obvious intent of rendering the planned canine sniff and subsequent search constitutionally permissible.
I cannot conceive how so transparent an attempt to circumvent the warrant requirement can be deemed lawful conduct "so attenuated as to dissipate the taint" of illegality and render the evidence "lawfully discovered," see Segura v. U.S., 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Rather, the conduct of the police in removing the vehicle to defeat the warrant requirement should be recognized for what it is: an exercise in brazen illegality without which the drugs in question would never have been discovered. Sergeant Nolan saw nothing suggesting that Williams remained in possession of drugs after his arrest; the patdown revealed no contraband (contrary to the CI's tip) and the police could see nothing inside the vehicle while it remained in the driveway. Had the police departed Williams's home and left the vehicle where it was, they would have been hard-pressed to search the vehicle at all, as they had no constitutionally sound basis to do so. Thus, their removal of the vehicle was not, as the Majority accepts, "so attenuated [from illegal conduct] as to dissipate the taint" of illegality, but rather, was a matter of necessity if the police ever expected to lay hands on the contraband their "hunch" told them was there. Their actions were plainly illegal and, contrary to the Majority's conclusion, the discovery of the cocaine inside the vehicle was part and parcel of that illegality.
For the foregoing reasons, all of the evidence admitted as a result of Williams's arrest and the seizure of his wife's vehicle should be suppressed. Because the Majority declines this course, I must respectfully dissent.