COMMONWEALTH of Pennsylvania, Appellant, v. Vivian BENJAMIN.
Superior Court of Pennsylvania.
Nov. 1, 1978.
393 A.2d 982
Submitted Nov. 14, 1977.
Bruce A. Carsia, Pittsburgh, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
Appellee was charged with possession and possession with intent to deliver a controlled substance,1 and criminal con-
The facts material to our disposition are as follows. On October 8, 1976, at approximately 10:30 p. m., Officer James Holliday of the Pittsburgh Police received a telephone call from a confidential informant who stated that there were three individuals standing in front of Anita‘s Bar, located in the 2200 block of Centre Avenue. The informant described the individuals as one Black male who was wearing a red jacket and glasses, another Black male, approximately six feet tall, who was wearing a brown jacket and gray slacks, and a Black female, who was heavy set and was wearing a green slacks suit. The informant said he was in the area and had observed the trio engage in drug sales. He also said the activity was taking place at the time of the call. Officer Holliday and his partner, both plain clothes officers, proceeded to the area. They observed three individuals matching the descriptions given by the informant. A twenty to twenty-five minute surveillance was conducted, during which the officers observed what appeared to be two drug passes. As the police car proceeded to pass the three a second time, the trio began walking away. The officers followed, and with the help of a back-up unit, subsequently stopped the trio and took them into custody. When appellee was searched at the Public Safety Building, sixteen and one-half spoons of heroin were found on her person.
It is axiomatic that all arrests and searches, whether with or without a warrant, must be based upon probable cause. The standard for determining probable cause is the same for both arrests and searches. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Harmes, 255 Pa.Super. 147, 386 A.2d 551 (1978). In Commonwealth v. Jackson, 459 Pa. 669, 673-74, 331 A.2d 189, 191 (1975), our supreme court stated that:
“In determining the presence of probable cause [t]he crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.” Commonwealth v. Jones, [457 Pa. 423,] 322 A.2d [119,] at 123 (citations omitted).”
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court enunciated the standard for determining the sufficiency of probable cause supporting a search when an informant‘s tip has been relied upon by the searching officer. The court therein established that the officer must know the underlying circumstances from which the informant concluded that the suspect was guilty of a crime, and the officer must have some reason to believe that the informant is telling the truth. The first part of the test is satisfied when the informant reveals to the officer the manner in which he obtained his information or describes the criminal activity in detail. By establishing the informant‘s past reliability, the second requirement is met. Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975); Commonwealth v. Soychak, 221 Pa.Super. 458, 289 A.2d 119 (1972).
As for the informant‘s reliability, it is true that general conclusions concerning trustworthiness are not sufficient. Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973). Some factual circumstances must be set forth to evidence the informant‘s reliability.
In Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975), relied upon by appellee, the supreme court held that the informant‘s reliability was not adequately established. There, the police could not state how many arrests ever resulted or whether there were any convictions obtained as the result of past information supplied by the informant. The instant case is in marked contrast. Here, the officer named three individuals who were arrested and who were ultimately convicted, although the convictions occurred after appellee‘s arrest. In addition, Officer Holliday testified to another drug arrest, which also ultimately resulted in a conviction, although he could not recall the individual‘s name. Finally, the officer testified that there were other individuals, in addition to those named, who were arrested and convicted on tips supplied by this informant. Appellee makes much of the fact that the three named prior arrests did not result in convictions until after appellee‘s arrest. Our research, however, uncovers no case which holds that an informant must have provided information in the past that led to arrests and convictions. Nor do we find a requirement that any given number of arrests and convictions is necessary. Rather, in Commonwealth v. Archer, 238 Pa.Super. 103, 109, 352 A.2d 483, 486 (1975), we said:
“While past reliability is most often established through a showing of convictions which resulted from information
supplied by the informer, e. g., Commonwealth v. Williams, 236 Pa.Super. 184, 345 A.2d 267 (1975); Commonwealth v. Ambers, [225 Pa.Super. 381, 310 A.2d 347 (1973)], there is no logical reason for mandating that all information lead to convictions before reliability is established.”
We therefore found that past “investigative leads” that proved reliable and accurate were a sufficient indicator of the informant‘s reliability. See also, Commonwealth v. Pamela Ann Hunt, 256 Pa.Super. 140, 389 A.2d 640 (1978). The essential fact is that the informant gave prior information implicating other persons in criminal activity, which information proved to be correct. We find that the informant‘s reliability was adequately established in this case.
This case bears a resemblance to Commonwealth v. Altizer, 213 Pa.Super. 201, 245 A.2d 692, aff‘d, 436 Pa. 611, 260 A.2d 469 (1968). There, a police officer was approached by an unidentified informant who stated that he had been in a certain nearby bar, wherein another patron offered to sell him postal money orders. The informant gave a complete description of the man, and when the officer entered the bar he located a person who fit exactly the informant‘s description. The officer also observed the top of a package protruding from the defendant‘s pocket, which he assumed were money orders. The officer testified that, “There was no time to get a warrant or anything and I felt that maybe a felony had been committed. I approached him and took them out of his pocket.” Commonwealth v. Altizer, supra at 203, 245 A.2d at 693. The defendant was then handcuffed and taken to police headquarters. In determining whether there were sufficient corroborating circumstances necessary to justify the police officer‘s reliance on information from an unidentified source, the court relied upon Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). The Altizer court concluded that there were sufficient circumstances to justify police reliance on the informant‘s tip: (1) the fact that the person searched fit exactly the description provided by the informant, and (2) the fact that the officer was able to personally observe the money orders.
In the instant case, the informant was known to the police officer, unlike in Altizer. But even if the informant had been unidentified, there would have been sufficient corroborating circumstances to justify the police officer‘s reliance on the tip. First, the three individuals matched exactly the description supplied by the informant and were at the location specified, and second, the officers were able to observe what they concluded were two drug transactions in which the trio was involved. Finally applying the test for probable cause—was there “evidence which would lead a man of reasonable caution to believe that a felony had been committed“—we conclude that there was. The police observed three persons standing in front of a bar, well known for the drug traffic that had occurred there in the recent past, and saw two other individuals separately approach the group and make some exchange with one of the three. The lower court noted, however, that the officers did not observe any suspicious movement or activity on the part of appellee, herself, during the surveillance.
Although appellee was not personally engaging in the drug passes observed by the officers in this case, there was more than mere presence and police speculation upon which
Therefore, on the basis of the information supplied by the informant, combined with the independent surveillance of the officers and their knowledge of the area and the bar itself, we conclude that there was probable cause for the arrest, and thus the fruits derived from the subsequent search were legally obtained and are admissible against appellee.
The order of the court below is reversed and the case is remanded for further proceedings.
JACOBS, President Judge, files a dissenting opinion in which SPAETH, J., joins.
WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.
JACOBS, President Judge, dissenting:
I respectfully dissent and would affirm the decision of the lower court.
Probable cause exists where facts and circumstances within the knowledge of the police are reasonably trustworthy and sufficient to warrant a person of reasonable caution to believe the suspect is engaged in criminal activity. Probable
At approximately 10:30 P.M. on October 8, 1976, a confidential informant placed a telephone call to Officer James Holliday of the Pittsburgh Police Department.1 He stated that three people, all of whom were black, were standing in front of Anita‘s Bar in the 2200 block of Centre Avenue. He described them as a male wearing a red jacket and glasses, a second man, approximately six feet tall, wearing a brown jacket and gray slacks, and a heavy set woman wearing a green pants suit. He did not identify the three by name. The informant stated that all three were “dealing in drugs” and that he had observed “buys being made.”
Although Officer Holliday testified that the informant had the ability to recognize heroin, there was no information provided to support the statements that the three persons were dealing in drugs or that buys were being made. That is, the informant did not tell Officer Holliday that he saw either heroin or money pass from the appellee and her companions to any other person. Furthermore, all of the informant‘s information related to the three as a group. He provided absolutely no information about appellee or her activities as an individual. The information received consisted only of unsupported suspicions and conclusory state-
The reliability portion of the Aguilar-Spinelli test also went unsatisfied in this case. Officer Holliday testified that the informant had supplied him with information leading to arrests in the past. In fact, the officer named three persons, all co-defendants on one robbery charge whom he arrested following a tip by this informant. He stated that he had made other arrests based on information supplied by this informant, but he was unable to provide the court with the names or details concerning the other persons or arrests. Furthermore, although the three co-defendants mentioned above had been arrested prior to the informant‘s supplying the information in this case, convictions did not result in those cases until after the search of Appellee Brown.
Finally, the informant‘s tip was not corroborated by the independent observation of the police. See Betrand Appeal, 451 Pa. 381, 387, 303 A.2d 486, 489 (1973). Upon receiving the informant‘s call, two police officers proceeded to the 2200 block of Centre Avenue. In driving by Anita‘s Bar, they saw three individuals matching the description given by the informant. The police then proceeded to a location one-half block away from where they observed the trio for approximately twenty-five minutes; they did not use binoculars to aid their vision. During the observation period, they twice saw a black male approach the three and converse with them.2 Following the conversations, the police observed what Officer Holliday described as an “exchange” between appellee‘s co-defendant and the fourth person. The Officer admitted that he saw neither objects nor money actually passing between the two. The men appeared to be shaking hands, however, and the police interpreted this action as a drug sale. In sum, the police saw three people who had been described to them earlier standing in front of a bar. Twice, one of the three engaged in a conversation with and made a hand movement toward a fourth person.
The Commonwealth also has argued that the search of appellee could be justified as a search incident to a lawful arrest. Just as the police lacked probable cause to search the appellee, they also lacked probable cause to arrest her and conduct a search incident to the arrest. Furthermore, the search was not conducted incident to the arrest. Appellee was arrested on the street not far from the spot where she was initially observed by the police. She was not searched there, however, but was transported to the Public Safety Building where subsequently she was searched. Clearly, the search of appellee was not incident to a lawful arrest and cannot be justified on that basis.
I agree with the lower court that the evidence seized during the search of appellee‘s person should be suppressed. Accordingly, I would affirm.
SPAETH, J., joins this dissenting opinion.
PRICE
JUDGE