# Petition for Writ of Certiorari — Ortiz v. Dieter

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 824

## Text

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

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TABLE OF CITATIONS . . + «© «© «© © « «© « iii
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JURISDICTION = © © © © © © © oe © © e 2
FEDERAL PROVISIONS INVOLVED . .... 2
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REASONS RELIED UPON FOR

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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

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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

---

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