*1 Pennsylvania, Appellant COMMONWEALTH LOPEZ, Appellee. Emilio Pennsylvania. Superior Court of Argued June Aug. 29, 1995.
Filed *2 Philadelphia, Attorney, Godfrey, Assistant District Robin Commonwealth, appellant. for the for Philadelphia, appellee. Ingram, B. Gerald HOFFMAN, POPOVICH, JJ. JOHNSON Before POPOVICH, Judge: the order of Court of appeals
The Commonwealth the motion to Philadelphia County granting Common Pleas of re Lopez.1 of the Emilio We suppress defendant/appellee, verse. following findings:
The court made the factual October, 1992, At p.m. 9:30 on the 30th officers Robert Fetters and Alberto Rodri- Philadelphia police in an and observed a black male quez were unmarked vehicle (later Aponte) currency Hispanic hand to a identified as male in exchange of 7th Butler Streets the northeast corner prompted This to locate for an unidentified item. a second themselves 30 to feet from witness vial currency U.S. for black male pocket. produced Aponte’s from *3 minutes, to the defen- made a hand-motion Within on south side of the street. away dant situated 40 feet the the to a 1979 white by reacted trunk opening The defendant tied-up bag, approximately removing Cutlass and diameter, handing object before the in from its interior inches it on of a vehicle situated bumper to who the Aponte, placed next to where he stood. observed these events at distance point, having
At this feet, back-up for to and detain the stop 30-50 the called police minutes, police the exited their defendant and Within vehicle, opened to standing the defendant next the approached him while Officer of the 1979 Cutlass and “detained” trunk plastic bags looked in the trunk saw Fetters caps vials with blue believed containing floor of the vehicle hold crack cocaine. part- while Fetters’ placed was under arrest
The defendant
from the vehicle next
plastic bag
ner retrieved a clear
In
18 clear
vials.
Aponte,
was found to contain
which
Commonwealth,
jurisdiction,
that the
in its statement of
certifies
1. The
handicaps
effectively
its
substantially
terminates
suppression order
appellate
suppres-
permits
review of the
prosecution
the case. This
Dugger, 506 Pa.
On the Commonwealth alternative, arrest, or, in were cause to in were allowed to be and legitimately place they where warranting view” its “plain observed a controlled substance subsequent arrest therefore. seizure and the defendant’s analysis on an of the Commonwealth’s embarking Before one place perspective, we need to some matters arguments, (the of suppression the standard of review matters being findings odds with to be conclusions of law at weight given fact) in probable of review being scope and the other Both were discussed this topics to search or arrest cases. Albino, 562, 652 Court Commonwealth (1995); to-wit: A.2d 954 & 955 granting suppress In an order a motion reviewing evidence, findings whether the factual we must determine evidence of record. supported by determination, only consider may In this we making and so much the of the defendant’s witnesses evidence context of fairly witnesses as read Commonwealth’s If the evidence sup- remains uncontradicted. the record court, of the trial we are bound findings the factual ports legal if the conclu- may only and we reverse findings, such *4 therefrom are erroneous. sions drawn if a situation determine particular we examine [w]hen exists, we consider all the factors effect, not concentrate on each individu- their total and do element____ circumstances as We also focus on the al and do not officer, the trained through eyes seen the of Final- average might.... as an citizen view the situation in with of dealing questions remember that ly, we must cause, factual and dealing we are not with the reason- of life which everyday considerations practical a ‘beyond is not the same prudent able and men act. This in determin- apply reasonable doubt’ standard which we original; in [Emphasis at trial. ing guilt innocence omitted] citations
Here, police, the at court found as a fact that suppression feet, in two Aponte engage a distance 30-50 currency, Aponte transactions and both instances netted U.S. a of a clear vial while the latter saw transfer being directed This the defendant for cash. was followed not before the defendant to cross the street but Aponte inches tied-up plastic bag, approximately removed a diameter, it to carry of a from the trunk vehicle addition, recited Albino precepts
In consistent with Commonwealth’s of “so much allowing for consideration fairly context of the record as read witnesses [evidence] ” uncontradicted, viewing all the evidence remains that Officer of a trained we note through eyes policeman, involving and the exchanges Aponte Fetters opined currency for were of U.S. “transaction^] two unknown males predicated upon 6. This was crack cocaine.” N.T. 9/22/94 area, was known years this which experience officer’s a location area” and “basically high drug-trafficking a [as] he arrests. Id. at prior drug where had made findings of fact indicate The court’s own (one exchanges in two for cash for Aponte engaged after vial), for a clear an unidentified item and the second hand-gesture by opening Aponte’s the defendant reacted to walking vehicle, removing plastic bag, a the trunk of two “hand[ing tied-up bag, approximately him] 2; at 1 & Find- Opinion, inches diameter.” Court 11/3/94 ings of Nos. 4 & 7. Fact made at distance
All of the observations were plastic bag Aponte, when the defendant transferred feet he entered feet from the when but the was 50 defendant indicated what Officer Fetters the trunk area and removed *5 446 vials a white plastic bag” containing
was “a clear several with N.T. at 7-8. substance believed to be “crack cocaine.” 9/22/94 it to believe a suppression thought The “unreasonable would have been identifiable in the dark” up plastic bag balled feet) 30-50 between the given (approximately the distance Yet, and the defendant. at 4-5. police Opinion, Court 11/3/94 a fact at the 40-50 foot distance the court found as same time, plastic a black male a clear vial for U.S. Aponte gave 3) No. currency (Finding of Fact him tied-up bag, defendant walk toward and hand “a Aponte (Finding two inches in diameter.” of Fact No. 7) court, as the credibility
Albeit matters of is be deference in this believability, given initial arbiter area, of fact findings we are to accord a court’s Albino, if supported by credence and when the record. See Jenkins, 585 supra; Commonwealth (1991); Stadtfeld, A.2d 1083 n. cf. Commonwealth v. — (1995) 491-492 Pa.Super.-, (Appellate court not the conclusions of law of the lower court bound same). in support absent evidence of the Further, the court’s that the lacked holding cause to conduct a warrantless arrest of the defendant search of the trunk of his vehicle was tainted has subsequent an origin police’s of] its the disbelief of the “observation bag, of a two inch between two balled-up with Hispanic ], males[ unidentified —defendant — in the at 4. eye Opinion, their naked dark.” Court 11/3/94 However, No. 3 Findings (Aponte when Fact re male), from black No. ex currency (Aponte ceived U.S. vial from another black changed currency for U.S. male) tied-up bag, approximate and No. 7 received “a (Aponte defendant) from are at odds ly two inches diameter” of Law that no cause to (holding with the Conclusion existed), we, court, as an stop, appellate arrest and search Jenkins, Albino, supra; not bound such a conclusion. See supra. see also supra; Stadtfeld *6 uncontra record and of the entire From our review witnesses, find we Commonwealth’s testimony of the dicted cause to arrest did not have the although police to be was believed observing what prior defendant to the Cutlass, the police trunk of the 1979white cocaine the crack to believe that facts enough articulable presented were with consistent defendant “detain” the activity criminal was afoot to investi while quo maintain the status Terry2 stop with a or confirm dispel to either further the circumstances gating “ necessity is no activity. ‘[TJhere of criminal presence the danger is armed person that the police suspect that the question to solely limited investigatory stop a valid ous before is ‘a reason All that need be shown can be ing performed.’ is afoot.’” Common activity criminal suspicion able (1981). 79, Dennis, 305, 433 A.2d v. wealth Here, they defendant had police once the reached next to the was situated him. As the defendant “detained” Cutlass, had a police where the trunk of the 1979 open (as be, any member of the they to observed legitimate right see) and a “plain the content of the trunk public could passing As articulated plastic bags. detection of several clear view” Fetters, saw: Officer he by which contained five smaller large plastic bag
... a
had clear
bags
Each of the smaller
bags.
sandwich-size
them,
an off-
containing
all
caps
vials with blue
this to be
believed
chunky
[The officer]
white
substance.
crack cocaine.
Jenkins,
580,
9;
N.T. at see 9/22/94 be, (Where they need they right where have a by viewable activity from criminal eyes not avert their large). at public of the defen- and detention
Preceding police’s approach drug two trans- dant, they what believed were they observed (conceded to be “more than by actions arrest,” N.T. see Aponte’s cause for enough probable 9/22/94 34). Next, removing observed the defendant was at receiving a hand-motion trunk of a vehicle after bag from the (1968). Ohio, L.Ed.2d 889 Terry 88 S.Ct. 392 U.S. 2. Then defendant walk “[pjolice from observed bag, tied-up hand standing Aponte was where Opinion, two inches diameter.” Court Fact Finding No. 11/3/94 into a picture All must be woven of the aforementioned 7-year knowledge by as its backdrop which contains high drug-traffick- was .a Officer Fetters that the area veteran location, made the officer drug arrests had been ing Thus, it is Court’s conclusion the the same area. this of the defendant. enough justify “stop” facts cases). Dennis, incriminating supra (citing Once See (crack cocaine) police, who sighted had been evidence *7 trunk, unobstructed, of content of the had an view the plain completed been and warrant- probable the circle of cause had drugs. of subsequent seizure ed the defendant’s arrest law conclusion of suppression To extent that the court’s arrest) (absence predicated to or is probable of cause seize at contrary, would indicate the findings of fact that upon stop, activity justifying criminal a we suspicion a least As below. conclusions drawn by legal not bound earlier, suspen- had reasonable recited we hold that the extant, presence activity to criminal was sion believe that subsequent restraint justified of which defendant’s to probable to cause leading view” drugs “plain detection is ruling the court’s To the extent that arrest the defendant. conclusions to be permissible legal facts and at odds with the therefrom, we reverse. drawn
Order reversed.
JOHNSON, J., dissenting files opinion. JOHNSON, Judge, dissenting: suppression I no court’s determi- Because find error arrest Emilio cause to probable nation that the officers lacked I must dissent. Lopez, respectfully of some unknown exchange that “an This Court has stated to even known public place, place citizens in items between more, not, traffickers, without does by drug frequented be 449 those citizens.” Common- establish arrest Malson, 155, 161, 642 A.2d wealth v.
(1994). case, hearing, present In the officer were Officer Fetters testified he another detail” at 9:30 on October “working burglary p.m. vehicle
He further testified while seated an unmarked from a man later identified as approximately away feet he in two transac- Aponte, Aponte engage suspicious observed tions with males. Fetters Subsequently, unidentified Officer car, reach into the trunk of a a “tied- Lopez retrieve that measured two up” plastic baggie inches diameter, street, and it to He cross the hand made dark, this observation in the without the use of binoculars. currency Officer no exchange Fetters observed between Lopez Aponte. Although Officer Fetters observed an currency between and each of the two males, exchanges unidentified those cannot be used to form Lopez. Kearney, cause as to See Commonwealth v. (1992) 274, 279, 411 Pa.Super. (although existed, reasonable officers had no suspicion probable cause appellant appellant arrest without a warrant where was stand- ing person engaged next to a who officers believed was Further, had no information that selling drugs). officer dealer, Lopez responding any was a known nor was he drug complaints concerning drug activity citizen at that location on *8 addition, that, although that date. In Officer Fetters testified made years he had worked the area for seven numer- there, ous narcotics arrests he had never seen Moreover, Lopez prior to this occasion. there is no indication Lopez suspicious the record that acted manner or to flee the officers him. attempted approached Finally, when Officer Fetters had no information that the vehicle involved had been used for the distribution of narcotics. facts, upon
Based these court determined probable Lopez. that the officers did not have cause to arrest the court concluded that the officers’ search of Accordingly, J.H., In 424 illegal. the trunk was See also Interest (“[W]here (1993) 224, 229, 351, proba- 622 A.2d Pa.Super. 354 450 exist, in a any evidence seized does not
ble cause to arrest
I
Because
suppressed.”).
arrest must be
search incident
conclusion, I
affirm the
would
no
the trial court’s
find
error
Common
Lopez’
suppress.
motion
granted
order that
Cf.
(no
Malson,
supra,
v.
155,
Filed