"We agree." With those two words a panel of three Pennsylvania Superior Court judges, by a two to one split vote, overturned a Schuylkill County jury who found a former Tamaqua man guilty of traffic in seufa and the sentence imposed by Judge Jacqueline Russell of five to 10 years to be served in a correctional institution was vacated.
Albert J. Mincavage Jr., 37, appealed the judgment of the sentence imposed by his conviction for possesion with intent to deliver a controlled substance, possession of a controlled substance and possession of drug paraphernalia. A jury returned a verdict on March 7, 2007, Russell sentenced him on April 7, 2007, to be committed to the state prison to serve his sentence and later denied his motion for a new trial.
Mincavage then appealed to the higher court claiming the police officers' search of his person and vehicle without a warrant was illegal and thus the evidence seized should have been suppressed.
At the trial there was testimony that in the afternoon of Feb. 24, 2006, Officer Keith Verbilla, Tamaqua police, met with Officer Michael Hayes who told him Mincavage was involved in the drug trafficking and that he traveled on Fridays to New York to bring back a shipment of cocaine to the Tamaqua area. Verbilla received anonymous ongoing calls about the drug trafficking and obtained permission from John Richmond, chief Schuylkill County probation officer, to search Mincavage's property.
Officer Henry Woods located Mincavage at a mini mart in Tamaqua. Verbilla and Hayes came to the mini mart parking lot and searched his car and found cocaine in a cigarette pack in the front seat console and a digital scale on the floor behind the passenger seat, two cell phones and more than $2,000 in cash and arrested him. On that evidence a jury found him guilty.
The two Superior Court judges who ruled to overturn the verdict, stated in their written opinion, "While only reasonable suspicion is required to conduct a warrantless search of a parolee, we conclude that the facts here do not support a finding of reasonable suspicion. The record shows the police officers' 'suspicion' was based on nothing more than unverified information from an unverified informant with no showing as to how the informant got his information."
The two judges disagreed with Russell's' ruling that "only reasonable suspicion is required to search a parolee." The higher court claimed, "There was absolutely no verification of the confidential informants tip and the police merely confronted Mincavage at a mini-market and then searched his car. There was no evidence he did anything before the search that was suspicious. Also, Officer Verbilla said he had information that Mincavage would be getting cocaine from New York and bringing it back to Tamaqua but never said how the informant got that information and there was no testimony to establish the reliabillity of the confidential informer." Judges Klein and Popovich rendered the majority decision.
Judge Fitzpatrick, who dissented, gave his own opinion. He agreed with Russell, stating, "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Reasonable suspicion may be found when the court concludes 'the detaining officers have a particularized and objective basis for suspecting the particular person stopped of criminal activity. In other words, whether the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate. This inquiry will not be satisfied by an officer's hunch or unparticularized suspicion. A known informant can form the basis for reasonable suspicion.
"Athough the informant was a less than reliable source, his tip was just a part of the overall pictuire. Richmond was also informed that Verbosh, parole officer of Mincavage, had received anonymous tips concerning Micnavage's drug activity. In other words, despite less than perfect brushstrokes, the whole picture created a basis for reasonable suspicion."
Mincavage is serving a 39 to 78 months sentence imposed on October 19, 2007, by Judge Charles M. Miller on charges of criminal conspiracy and criminal use of a cell phone related to a drug deal which transpired in Tamaqua.
The district attorney may appeal the decision to the state's Supreme Court.