Petition for Writ of Certiorari — Ortiz v. Dieter

Eupreme Court, U.S,

92-1976 | FILED

JUN 14 1993

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1993

JORGE ORTIZ, JR.,

Petitioner,

v.

GERALD DIETER and

JAMES BOWSER,

Respondents.

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Richard J. Orloski

Counsel for Petitioner

ORLOSKI & HINGA

1005 South Cedar Crest Boulevard

Allentown, PA 18105

(215) 433-2363

QUESTION PRESENTED FOR REVIEW

1) Whether or not the Court of Appeals erred as a

matter of law in affirming the denial of Petitioner’s Motion

for Judgment notwithstanding the verdict where: 1) The jury

found that §1983 Petitioner proved that Respondents arrested

Petitioner; and 2) The undisputed evidence of record

demonstrated that Respondents arrested Petitioner based upon

an uncorroborated anonymous tip, which tip lacked requisite

specificity and any further support which would permit the

suspicions engendered by the unknown informant’s tip to

ripen into a judgment that a crime was probably being

committed so as to serve as a basis for an arrest within the

bounds of the United States Constitution?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. . .« - 1

TABLE OF CITATIONS . . + «© «© «© © « «© « iii

oe 2 1

JURISDICTION = © © © © © © © oe © © e 2

FEDERAL PROVISIONS INVOLVED . .... 2

emuemeemen Ge bee CASE. . 1 tw tw tl thle eS

REASONS RELIED UPON FOR

ALLOWANCE OF THE WRIT , . ... 11

Se ee ee ee ee

IE 7. 6 5 & 6 6 6 © s «© « 8 « £0

ORDER OF UNITED STATES

COURT OF APPEALS PER

STAPLETON, ROTH AND LEWIS,

CIRCUIT JUDGES ENTERED

eo

ORDER OF UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF

PENNSYLVANIA PER HUYETT, J.,

Brame JULY & 1992 . «© «© «© © « » 3a

~ BEST AVAILABLE COPY #

ill

TABLE OF CITATIONS

Brinegar v. United States, 338 U.S. 160, 176, 69

S. Ct. 1302, 1322, 93 L.Ed. 1879 (1949) ,

Carroll v. United States, 267 U.S. 137, 162, 69 L.Ed.

543, 555, 45 S.Ct. 280

Coolidge v. New Hampshire, 403 U.S. 433, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971)

Commonwealth v. Perez, 407 Pa. Super. 614, 595

A.2d 1315 (1991) ,

Draper v. United States, 358 U.S. 307, 3 L.Ed.2d

327, 79 S.Ct. 379 (1959)

Henry v. United States, 361 U.S. 98, 80 S.Ct.

168, 4 L.Ed.2d 134 (1959)

Spinelli v. U.S., 393 U.S. 410, 21 L.Ed.2d 637,

89 S.Ct. 584 (1964)

United States v. Miles, 468 F.2d 482 (3d Cir, 1979)

United State v. Singleton, 439 F.2d 381 (3d Cir, 1971) .

United State v. Thompson, 420 F.2d 536 (3d Cir, 1970)

No.

October Term, 1993

In The

Supreme Court of the United States

JORGE ORTIZ, JR.,

Petitioner,

V.

GERALD DIETER and

JAMES BOWSER,

Respondent.

Petition For a Writ of Certiorari to

the United States Court

of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice of the United States, and the

Associate Justices of the Supreme Court of the United States:

The Petitioner, Jorge Ortiz, Jr., prays that a Writ of Certiorari

issue to review judgment of the United States Court of Appeals for the

Third Circuit.

2

OPINIONS BELOW

The Order of the United States Court of Appeals for

the Third Circuit entered March 15, 1992 per Stapleton, Roth

and Lewis, Circuit Judges, is unrecorded and appears at page

1 of the Appendix herein.

The Order of the United States District Court for the

Eastern District of Pennsylvania entered July 8, 1992 per

Huyett, J., at__~=F.Supp. __—Ss«&E. D. Pa. (1992) and page

3 of the Appendix herein.

The final Order of the Court of Appeals for the Third

Circuit is dated March 15, 1993, and this Petition for Writ

of Certiorari is timely filed within ninety (90) days thereof.

The jurisdiction of this Honorable Courts rests upon 28

U.S.C. §1254(1) and Rule 17 of this Honorable Court.

FEDERAL PROVISIONS INVOLVED

29 U.S.C. §1983

ede

~ ty wig

ae

® i

= lw

>

v

ake |

*

3

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

Petitioner filed this action against Respondent seeking

damages sustained as a result of Respondents’ alleged arrest

of Petition without probable cause, and Respondent’ use of

excessive force.

In June, 1992, this case proceeded to trial before the

Honorable Daniel H. Huyett, 3d. The jury returned a verdict

in favor of Respondents. However, the jury found as a fact

that Respondent did arrest Petitioner. (Appendix, Vol. IV,

p. 257a). Respondents admitted that Respondents arrested

Petitioner based upon an anonymous tip with no indication of

the trustworthiness of the informant. (Appendix, Vol. I, p.

62a).

Respondents had no reason to believe that a crime

was being committed. Please see, e.g., Appendix, Vol. II,

p. 80a. Nevertheless, the trial court upheld the jury’s verdict

against Petitioner. Petitioner timely appealed the trial court’s

denial of Appellant’s Motion for Judgment N.O.V.

Petitioner’s appeal is now before this Honorable Court for

disposition.

B. STATEMENT OF FACTS

Although Respondents contended Respondents did not

arrest Petitioner (Appendix, Vol. 1, p. 23a), the jury

4

disagreed. (Appendix, Vol. IV, p. 257a).' The Judge also

disagreed.

Respondent, Dieter, admitted that Respondent

physically detained and completely controlled Petitioner.

(Appendix, Vol. I, p. 60a; Vol. II, p. 85a). After detaining,

bearhugging and tackling Petitioner, Respondents handcuffed

Petitioner. (e.g., Appendix Vol. I, p. 57a-60a). Respondent

acknowledged that Respondent placed Petitioner in

Respondents’ complete control and custody. (Appendix Vol.

I, p. 60a-61a, Vol. II p. 85a). Respondents threw Petitioner

in the police car and continued to detain Petitioner.

(Appendix, Vol. I, p. 63a; Vol. II, p. 86a).

Respondents continued to _ detain Petitioner.

(Appendix, Vol. II, p. 86a-87a). Respondents drove

Petitioner into an alley (Appendix Vol. II, p. 107a-108a).

Respondent, Dieter, told Petitioner that Respondents would

arrest Petitioner for loitering and disorderly conduct.

(Appendix, Vol. II, p. 109a).

As Respondents admitted, Respondents arrested

Petitioner because he was Hispanic:

'The Judge noted "I could almost as a matter of law rule

that he was arrested because he was placed in a police car

and handcuffed, and if that isn’t an arrest, I don’t know what

an arrest is." (Appendix, Vol. III, p. 169a-170a).

2

"Q. Why were you pointing your weapon at

Mr. Ortiz?"

A. He fit the description of one of the

individuals that Com Center had given us.

Q. Okay, well, what about him fit that

description?

A. Hispanic male, dark hair, wearing white."

(Appendix, Vol. II. p. 80a).

Petitioner is Hispanic, has dark hair, as do the

overwhelming majority of Hispanics.

The fact that Petitioner was wearing some shade of

white pants is irrelevant in light of the remainder of the

anonymous tip. That is, one of the very limited things the

tip did describe was that one of the gunmen was naked from

the waist up and the other with white clothes was carrying a

gun too large to conceal. (Appendix, Vol. II, p. 133a). As

set forth below, Petitioner absolutely did not fit either

description.

Although Respondents claimed that Respondents

arrested Petitioner because "Plaintiff matched the

description" of the anonymous tip received by telephone,

6

Respondents admitted the tip failed to include crucial

information. Respondents admitted Respondents had no idea

of the age of the two males. (Appendix, Vol. I, p. 53a, 75a;

Vol. II, p. 132a). Respondents admitted Respondents had no

idea of the weight of the two males. (Appendix, Vol. I,

p.53a, 75a; Vol. II, p. 132a). Respondents admitted

Respondents had no idea of the height of the two males.

(Appendix, Vol. I, p. 53a, 75a; Vol. II, p. 132a).

One of the so-called suspects had no_ shirt.

(Appendix, Vol. II, p. 133a), and the other was carrying a

large type of gun which was bigger than something that could

be concealed in a hand. (Appendix, Vol. II, p. 133a).

Respondents had no reason to believe that Petitioner

was committing or had committed any crime. Respondents

admitted that they never saw Appellant with a gun.

(Appendix, Vol. I, p. 54a). Respondents never found

weapons on Petitioner. (Appendix, Vol. I, p. 60a).

Respondents admitted that Respondents never saw any type

7

of bulge consistent with Petitioner trying to conceal a gun.

Respondents did not speak to Petitioner. (Appendix,

Vol. I, p. 55a). Respondents admitted that Respondents

approached Petitioner with their guns drawn. (e.g.

Appendix, Vol. I, p. 44a, 54a). Respondents admitted

bearhugging and tackling Petitioner (e.g., Appendix, Vol. I,

p. 45a-46a).

The anonymous tip reported two Hispanic males with

various large guns in the neighborhood. (Appendix, Vol. II,

p. 132a, 133a). One of the armed men was naked from the

waist up. (Appendix, Vol. I, p. 49a; Vol. II, p. 132a,

133a). The other reported armed man was supposedly

carrying a large gun (i.e. sawed-off shotgun), too large to

conceal. (Appendix, Vol. II, p. 132a-133a). That is all the

information the anonymous report contained. (Appendix,

Vol. II, p. 133a). Petitioner was walking blocks north of the

reported armed men. (Appendix, Vol. I, p. 50a). Petitioner

was alone. (Appendix, Vol. I, p. 51a, 52a). Petitioner was

8

not naked from the waist up nor was Petitioner carrying any

gun of any size. Although Petitioner is Hispanic, so is the

entire neighborhood where Petitioner was walking.

(Appendix, Vol. I, p. 50a). Respondents had actual

knowledge that the neighborhood was _ predominately

Hispanic. (Appendix, Vol. II, p. 77a). Petitioner was not

carrying or concealing a gun or any other weapon and did

not appear to be concealing any weapon. (Appendix, Vol. I,

p. 52a, 54a; Vol. II, p. 85a).

Both Respondents candidly admit Respondents saw no

evidence of a gun on Petitioner’s person. (Appendix, Vol.

I, p. 58a; Vol. II, p. 80a, 8la, 82a). Several peopie were

out walking in the neighborhood as Respondents arrived. No

one signaled to Respondents that they needed a police officer.

(Appendix, Vol. II, p. 78a, 79a).

When Respondent, Dieter, first spotted Petitioner,

Petitioner was standing, peacefully by a tree. (Appendix,

Vol. I, p. 52a). Respondent, Dieter, approached Petitioner

9

first. Respondent, Dieter, pulled up in Respondents’ patrol

car with a trained attack dog. (Appendix, Vol. I, p. 58a).

Respondents released the dog, which after Respondents

tackled Petitioner, was standing on Petitioner. (Appendix,

Vol. Il, p. 112a). After Respondent, Dieter, had drawn his

gun and approached Petitioner, Respondent, Bowser arrived

and drew his gun. (Appendix, Vol. I, p. 56a).

Even after Respondents searched Petitioner,

(Appendix, Vol. I, p. 59a, 62a; Vol. II, p. 84a, 88a), and

determined that Petitioner had no weapons, Respondents

detained, arrested, and beat up Petitioner. (Appendix, Vol.

I, p. 59a; Vol. II, p. 84a). Respondent tripped and knocked

down Petitioner. (Appendix, Vol. I, p. 59a; Vol. II, p.

84a). Respondent, Bowser, admitted telling Petitioner that

"[he] was f-cking lucky he didn’t get shot." (Appendix, Vol.

II, p. 88a).

Upon these facts, the Trial and Appellate Court

refused to enter judgment N.O.V. for Petitioner,

10

Plaintiff/Petitioner now seeks review by this Honorable

Court.

1]

REASONS RELIED UPON FOR

ALLOWANCE OF THE WRIT

Review by certiorari is appropriate in the case at bar

under Rule 17(1)(a) of the Rules of the United States

Supreme Court in that a federal court of appeals has rendered

a decision in conflict with the decision in conflict with the

decision of another federal court of appeals on the same

matter as to call for an exercise of this Honorable Court's

power of supervision.

12

ARGUMENT

1) Whether or not the Court of Appeals erred as a

matter of law in affirming the denial of Petitioner’s Motion

for Judgment notwithstanding the verdict where: 1) The jury

found that §1983 Petitioner proved that Respondent’s arrested

Petitioner; and 2) The undisputed evidence of record

demonstrated that Respondents arrested Petitioner based upon

an uncorroborated anonymous tip, which tip lacked requisite

specificity and any further support which would permit the

suspicions engendered by the unknown informant’s tip to

ripen into a judgment that a crime was probably being

committed so as to serve as a basis for an arrest within the

bounds of the United States Constitution?

F: The jury found as a fact that Respondents

arrested Petitioner. Although Respondents contended

Appellees did not arrest Appellant (Appendix, Vol. I, p.

13

23a), the jury disagreed. (Appendix, Vol. IV, p. 257a)’

The Judge also disagreed.

Respondent, Dieter, admitted that Respondents

physically detained and completely controlled Petitioner.

(Appendix, Vol. I, p. 48a; Vol. II, p. 85a). After detaining,

bearhugging and tackling Petitioner, Respondents handcuffed

Petitioner. (e.g., Appendix, Vol. I, p. 57a-60a).

Respondents acknowledged that Respondents placed

Petitioner in Respondents’ complete control and custody.

(Appendix, Vol. I, p. 60a, 61a; Vol. Il, p. 85a).

Respondents threw Petitioner in the police car and continued

to detain Petitioner. (Appendix, Vol. I, p. 63a; Vol. I, p.

86a).

Respondents continued to _ detain Petitioner.

(Appendix, Vol. II, p. 86a, 87a). Respondents drove

The Judge noted "I could almost as a matter of law rule

that he was arrested because he was placed in a police car

and handcuffed, and if that isn’t an arrest, I don’t know what

an arrest is." (Appendix, Vol. III, p. 169a-170a).

14

Petitioner into an alley (Appendix, Vol. II, p. 107a, 108a).

Respondent, Dieter, told Petitioner that Respondents would

arrest Petitioner for loitering and disorderly conduct.

(Appendix, Vol. II, p. 109a). Upon these facts the jury

found the Respondents had in fact arrested Petitioner.

(Appendix, Vol. IV, p. 257a).

y 2 The Fourth Amendment to the United States

Constitution requires probable cause for an arrest. The

United States Constitution, Amendment Four.

ae Respondents arrested _ Petitioner _ without

probable cause.

a. After this incident between Petitioner

and_ Respondents, Respondents admitted no one ever

investigated the anonymous report because Respondents had

insufficient information and no witness. (Appendix, Vol. I,

p. 62a). The undisputed facts indicate Respondents have no

indication of the reliability or trustworthiness of the

informant.

15

b. Respondents arrested Petitioner based

upon an anonymous telephone tip (Appendix, Vol. II, p. 80a)

without any indication of the reliability of the tip and without

any Critical information regarding the reported gunmen. As

Respondents admitted, Respondents arrested Petitioner

because he was Hispanic:

"Q. Why were you pointing your weapon at

Mr. Ortiz?"

A. He fit the description of one of the

individuals that Com Center had given us.

Q. Okay, well, what about him fit that

description?

A. Hispanic male, dark hair, wearing white."

(Appendix, Vol. II. p. 80a).

Petitioner is Hispanic has dark hair, as do the

overwhelming majority of Hispanics.

The fact that Petitioner was wearing some shade of

white pants is irrelevant in light of the remainder of the

anonymous tip. That is, one of the very limited things the

tip did describe was that one of the gunmen was naked from

16

the waist up and the other with white clothes was carrying a

gun too large to conceal. (Appendix, Vol. II, p. 133a). As

set forth below, Petitioner absolutely did not fit either

description.

e. Although Respondents claimed _ that

Respondents arrested Petitioner because "Plaintiff matched

the description" of the anonymous tip received by telephone,

Respondents admitted the tip failed to include crucial

information. Respondents admitted Respondents had no idea

of the age of the two males. (Appendix, Vol. I, p. 53a, 75a;

Vol. II, p. 132a). Respondents admitted Respondents had no

idea of the weight of the two males. (Appendix, Vol. I,

p.53a, 75a; Vol. II, p. 132a). Respondents admitted

Respondents had no idea of the height of the two males.

(Appendix, Vol. I, p. 53a, 75a; Vol. II, p. 132a).

One of the so-called suspects had no shirt.

(Appendix, Vol. II, p. 133a), and the other was carrying a

large type of gun which was bigger than something that could

17

be concealed in a hand. (Appendix, Vol. II, p. 133a).

d. Respondents had no reason to believe

that Petitioner was committing or had committed any crime.

Respondents admitted that they never saw Petitioner with a

gun. (Appendix, Vol. I, p. 54a). Respondents never found

weapons on Petitioner. (Appendix, Vol. I, p. 60a).

Respondents admitted that Respondents never saw any type

of bulge consistent with Petitioner trying to conceal a gun.

Respondents did not speak to Petitioner. (Appendix,

Vol. I, p. 55a). Respondents admitted that Petitioner did not

run. (Appendix, Vol. I, p. 56a). Respondents admitted that

Respondents approached Petitioner with their guns drawn.

(e.g. Appendix, Vol. I, p. 44a, 54a). Respondents admitted

bearhugging and tackling Petitioner (e.g., Appendix, Vol. I,

p. 45a-46a).

The anonymous tip reported two Hispanic males with

various large guns in the neighborhood. (Appendix, Vol. IJ,

p. 132a, 133a). One of the armed men was naked from the

18

waist up. (Appendix, Vol. I, p. 49a; Vol. II, p. 132a,

133a). The other reported armed man was supposedly

carrying a large gun (i.e. sawed-off shotgun), too large to

conceal. (Appendix, Vol. II, p. 132a-133a). That is all the

information the anonymous report contained. (Appendix,

Vol. I, p. 133a). Petitioner was walking blocks north of the

reported armed men. (Appendix, Vol. I, p. 50a). Petitioner

was alone. (Appendix, Vol. I, p. 5la, 52a). Petitioner was

not naked from the waist up nor was Petitioner carrying any

gun of any size. Although Petitioner is Hispanic, so is the

entire neighborhood where Petitioner was _ walking.

(Appendix, Vol. I, p. 50a). Respondents had actual

knowledge that the neighborhood was predominately

Hispanic. (Appendix, Vol. II, p. 77a). Petitioner was not

carrying or concealing a gun or any other weapon and did

not appear to be concealing any weapon. (Appendix, Vol. I,

p. 52a, 54a; Vol. II, p. 85a).

Both Respondents candidly admit Respondents saw no

19

evidence of a gun of Petitioner’s person. (Appendix, Vol. I,

p. 58a; Vol. II, p. 80a, 81a, 82a). Several people were out

walking in the neighborhood as Respondents arrived. No

one signaled to Respondents that they needed a police officer.

(Appendix, Vol. II, p. 78a, 79a).

S. Under the circumstances, Respondents

used excessive force against Petitioner. Petitioner herein

incorporates Petitioner’s above argument as if fully set forth

at length. When Respondent, Dieter, first spotted

Petitioner, Petitioner was standing, peacefully by a tree.

(Appendix, Vol. I, p. 52a). Respondent, Dieter, approached

Petitioner first. Respondent, Dieter, pulled up in

Respondents’ patrol car with a trained attack dog.

(Appendix, Vol. I, p. 58a). Respondents released the dog,

which after Respondents tackled Petitioner, was standing on

Petitioner. (Appendix, Vol. II, p. 112a). After Respondent,

Dieter, had drawn his gun and approached Petitioner,

Respondent, Bowser, arrived and drew his gun. (Appendix,

20

Vol. I, p. 56a).

Even after Respondents searched Petitioner,

(Appendix, Vol. I, p. 59a, 62a; Vol. II, p. 84a, 88a), and

determined that Petitioner had no weapons, Respondents

detained, arrested, and beat up Petitioner. (Appendix, Vol.

I, p. 59a; Vol. II, p. 84a). Respondent tripped and knocked

down Petitioner. (Appendix, Vol. I, p. 59a; Vol. II, p.

84a). Respondent, Bowser, admitted telling petitioner that

"[{he] was f-cking lucky he didn’t get shot." (Appendix, Vol.

II, p. 88a).

f. Respondents’ arrest of Petitioner based

upon_an_ anonymous tip where reliability is unknown to

Respondents and where no evidence exists that Petitioner has

committed or is committing a crime fails to constitute

probable cause as a matter of law.

1. Good faith on part of arresting

officer is not enough to arrest without a warrant. Henry v.

United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134

21

(1959). Compare, Commonwealth v. Perez, 407 Pa. Super.

614, 595 A.2d 1315 (1991) where Pennsylvania’s Superior

Court suppressed evidence as the fruit of an illegal arrest

where a Hispanic male was stopped only on the basis of an

anonymous tip which disclosed evidence of illegal conduct.

The requirement of probable cause must be strictly

enforced as a standard of the Fourth Amendment to the

United States Constitution. Henry v. United States, supra.

"Under our system, suspicion is not enough for an officer to

lay hands on a citizen. It is better, so the Fourth

Amendment teaches, that the guilty sometimes go free than

that citizens be subject to easy arrest." Henry v. United

States, supra at 139-140.

il. An anonymous tip needs further

support to serve as a basis for an arrest. Spinelli v. U.S.,

supra; United States v. Singleton, 439 F.2d 381 (3d Cir,

1971) (informant’s tip must be verified by independent

personal observation by police). The record is devoid of any

22

evidence which "would permit the suspicions engendered by

the informant’s report to ripen into a judgment that a crime

was probably being committed." Spinelli v. United States,

supra 21 L.Ed.2d at 645.

In Aquila, Spinelli and Draper, the Supreme Court

has given “content to the notion of probable cause."

Spinelli, supra, 21 L.Ed.2d at 645.

The United States Supreme Court has stated that

although Aquila and Spinelli involved a search without a

warrant and Draper involved whether the police had probable

cause for an arrest without a warrant, "the analysis required

for an answer to this question is basically similar to that

demanded of a magistrate when he considers whether a

search warrant should issue." Spinelli v. United States, 393

U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1964). Thus,

cases involving searches without warrants are analogous to

cases involving arrests without warrants. The lower courts

erred as a matter of law in finding otherwise.

23

iil. Probable cause exists only

where "the facts and circumstances within [the arresting

officers’]_ knowledge and of which they had reasonably

trustworthy information [are] sufficient in themselves to

warrant _a man of reasonable caution in the belief that" an

offense has been or is being committed. Draper v. United

States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 379 (1959),

citing Carroll v. United States, 267 U.S. 137, 162, 69 L.Ed.

543, 555 45 S.Ct. 280 (further citations omitted).

Probable cause means more than a bare suspicion, the

line between mere suspicion and probable cause "must be

drawn by an act of judgment formed in light of the particular

situation and with account taken of all the circumstances.

United States v. Thompson, 420 F.2d 536 (3d Cir, 1970),

citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.

Ct. 1302, 1311, 93 L.Ed. 1879 (1949).

iv. Prudent men in the shoes of

Respondents would NOT have seen enough to cause them to

24

believe that Petitioner was violating the law. Id. Petitioner

herein incorporates his facts and arguments above as if fully

set froth at length. Due to the paucity of information

regarding the alleged gunmen and informant, and the

complete failure of evidence to support a conclusion that

Petitioner was armed and dangerous, the lower courts erred

as a matter of law in denying judgment N.O.V.

The United States Supreme Court has conclusively

determined that warrantless searches are per se unreasonable

absent exigent circumstances. Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The

same logic applies to warrantless arrests. "As to persons, the

overwhelming weight of authority is that a police officer may

make an arrest without a warrant where he has probable

cause to believe the suspect has committed a felony."

United States v. Miles, 468 F.2d 482 (3d Cir, 1979), citing

Coolidge, supra. Applying the United States Supreme Court

Standard to the case at bar, the Trial and Appellate Courts

25

erred in denying Petitioner’s Motion for Judgment N.O.V.

g. The Trial Court erred_as a matter of

law in denying _Petitioner’s motion _for judgment

notwithstanding the verdict. As stated above, the jury found

that Respondents arrested Petitioner. Respondents had no

indication of the reliability or trustworthiness of the

informant’s telephone tip. Further, Respondents had no

rational, legitimate reason to believe that Petitioner had

committed or was committing any crime. Hence, the Trial

and Appellate Courts erred as a matter of law in denying

Petitioner’s Motion for Judgement N.O.V.

$e sehte adhe ditaieadiatlaipeael

26

CONCLUSION

For the foregoing reasons, this Petition for Writ of

going

Certiorari ought to be granted.

Respectfully submitted,

ORLOSKI & HINGA

hy WO

Richard J. Ohoski/ ]

Attorney for Petiti

Attorney I. D. #57557

1005 South Cedar Crest Boulevard

Allentown, PA 18103

(215) 433-2363

j la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-1678

JORGE ORTIZ, JR.,

Appellant

V.

GERALD DIETER; JAMES BOWSER

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 91-03664)

District Judge: Honorable Daniel H. Huyett, 3d

Submitted: March 15, 1993

BEFORE: STAPLETON, ROTH, and LEWIS,

Circuit Judges

JUDGMENT ORDER

After consideration of the contentions raised by

appellant, it is

ORDERED AN ADJUDGED that the judgment of the

district court be and is hereby affirmed.

Costs taxed against appellant.

By the Court.

/s/

Circuit Judge

ATTEST:

/s/

P. Douglas Sisk, Clerk

DATED: April 5, 1993

Certified as a true copy and issued in lieu

of a formal mandate on April 27, 1993

Teste: /s/ P. Douglas Sisk

Clerk, United States Court of Appeals

for the Third Circuit

3a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JORGE ORTIZ, JR. CIVIL ACTION

Vv.

GERALD DIETER

JAMES BOWSER . NO. 91-3664

CIVIL JUDGMENT

Before THE HONORABLE DANIEL H. HUYETT, 3RD

AND NOW, this 2nd day of July, 1992, in

accordance with Jury Verdict of July 2, 1992,

IT IS ORDERED that Judgment be and the same is

entered in favor of defendants and against plaintiff.

BY THE COURT:

ATTEST /s/ Leslie F. Stott

Deputy Clerk

Leslie F. Stott

ENTERED: July 8, 1992