Commonwealth v. ThompsonCommonwealth v. Thompson
Lead
OPINION
Appellant Percy Thompson challenges the Superior Court’s order affirming his judgment of sentence for possession of a controlled substance. We affirm.
On January 21, 2005, in the evening, Philadelphia Police Officer Orlando Ortiz was on duty in the 2400 block of Leithgow Street. Officer Ortiz knew the neighborhood as a high crime area in which narcotics, and specifically heroin, regularly were sold. The area was designated by the Philadelphia Police Department as an “Operation Safe Streets” neighborhood. Officer Ortiz, a nine-year veteran of the police force, and his partner, Officer Correa, were in plainclothes and driving an unmarked vehicle. Officer Ortiz saw a car parked by the sidewalk and observed Appellant standing in the street by the driver’s side door. Officer Ortiz watched Appellant hand the male driver some money and saw the driver give Appellant a small object in return. Based on what he saw on the street and what he knew, including the fact that he had made several hundred narcotics arrests of this very type, Officer Ortiz believed the men were engaged in a drug transaction. Officer Ortiz stopped Appellant and recovered from his pocket a packet of heroin. Officer Correa approached the driver and ultimately recovered two packets of heroin from his hand and an additional 14 packets from his person.
Appellant was charged with possession of a controlled substance. He filed a pre-trial motion to suppress the heroin, claiming that police lacked the probable cause necessary to support the search and seizure. Philadelphia Municipal Court Judge James M. DeLeon denied the motion, found Appellant guilty after a stipulated trial, and imposed a 12-month probationary sentence. Appellant filed a petition for writ of certiorari in the Philadelphia Court of Common Pleas. Judge Susan I. Schulman denied the writ. Appellant filed an appeal with the Superior Court raising the same single claim regarding probable cause. The Superior Court panel affirmed based on its then-recent opinion in
This Court granted Appellant’s Petition for Allowance of Appeal on the following issues:
1. Whether the initial seizure and immediately ensuing search lacked probable cause and whether the lower courts applied erroneous standards to judge the constitutionality of police conduct.
2. Whether per curiam decisions of this Court specifically citing Commonwealth v. Banks, [
With respect to the first issue, we are reviewing the trial court’s ruling denying Appellant’s motion to suppress. “Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.... [W]e must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Eichinger,
The parties agree that police were required to have probable cause in order to stop, seize, and search Appellant in the manner they did.
This Court frequently has addressed the particular issues related to law enforcement’s observations of drug trafficking on the street. Appellant insists that the long-standing “observed transaction” jurisprudence in this Commonwealth mandates reversal here. Among other cases, Appellant relies specifically on this Court’s holdings in Commonwealth v. Dunlap,
The Commonwealth, on the other hand, asserts that this Court’s jurisprudence supports the Superior Court’s decision here. According to the Commonwealth, the facts present more than the mere observation of a simple commercial transaction. Further, argues the Commonwealth, this case presents “an opportunity to clarify that when an officer who is familiar with drug sales sees what he recognizes as a drug sale, at a specific drug-selling location, he has probable cause to arrest the parties to the transaction.” Appellee’s Brief at 5.
We consider, in their order of decision, the cases on which Appellant relies. In Lawson, police observed the appellant as he stood on the street and received currency from individuals to whom he handed small objects that he retrieved from his wife. After observing three such transactions, police arrested the couple, who ultimately faced conspiracy and narcotics sales charges. In response to a claim that police lacked probable cause to arrest, the Lawson Court noted that “all of the detailed facts and circumstances must be considered.” The Lawson Court concluded that those circumstances amply supported probable cause.
The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the small items were kept by one of the sellers is important;
the movements and manners of the parties are important. Considering the facts and circumstances in their totality, we conclude that the officers acted as prudent men in believing that some type of contraband was being sold.
Id.
In Banks, decided over twenty years after Laiuson, this Court considered whether a police officer’s “chanced” observation of a “single, isolated exchange of some currency for some unidentified item or items, taking place on a public street at midday,” was sufficient to establish probable cause where the suspect also fled from police.
Dunlap is this Court’s most recent case on the issue of on-the-street drug trade. In Dunlap, Philadelphia Police Officer Devlin, a five-year veteran of the police force and a nine-month member of the drug strike force, observed the suspect on a Philadelphia street. Officer Devlin, who had previously conducted about fifteen to twenty narcotics arrests in the area, testified that the neighborhood suffered from “a high rate of nefarious activity, including drug crimes.” Id. at 675. As Officer Devlin watched, the suspect engaged in a brief conversation with another man to whom he handed money and from whom he received small objects in return. Based on
The trial court in Dunlap held that the evidence was sufficient to establish probable cause and the Superior Court agreed. The en banc panel relied on the fact that Officer Devlin was an experienced narcotics officer, as well as the fact that the neighborhood had a reputation as a high drug-crime area.
The majority opinion in Dunlap focused its analysis on the controlling nature of Banks and the “relevance of police training and experience to the probable cause determination.”
At first glance, these statements of the Dunlap majority appear to exclude completely police training and experience as factors relevant to the probable cause calculation. But the Dunlap majority went on to explain its holding in a manner that arguably contradicted these statements, or at the very least obscured the standard the majority sought to establish.
We do not seek to minimize the experience gained through years serving on the police force. Quite to the contrary, we recognize that many officers, particularly those with specialized training, are able to recognize trends and methods in the commission of various crimes. For instance, an officer who has specialized in drug crimes may be more suspicious that a package contains illegal narcotics because of the form of packaging used to conceal those drugs. He or she may recognize criminal activity where a non-police citizen may not. However, a court cannot simply conclude that probable cause existed based upon nothing more than the number of years an officer has spent on the force. Rather, the officer must demonstrate a nexus between his experience and the search, arrest, or seizure of evidence. By doing so, a court aware of, informed by, and viewing the evidence as the officer in question, aided in assessing his observations by his experience, may properly conclude that probable cause existed. This is true even where the court may have been unable to perceive the existence of probable cause had the court viewed the same evidence through the eyes of a reasonable citizen untrained in law enforcement.
Id. at 675-76 (citation omitted) (emphasis supplied). Thus, in explaining its holding, the Dunlap majority rejected blind reliance on a certain number of years on the
In a thoughtful concurring opinion, Justice Saylor joined the Dunlap majority with respect to its holding that Banks must be upheld. Id. at 680 (Saylor, J., concurring). But Justice Saylor’s very first statement on the issue was that he believed a police officer’s experience “may be fairly regarded as a relevant factor in determining probable cause.”
Regarding the issue of probable cause factors, Justice Saylor warned that an officer’s “cursory assertion” of training and experience would be insufficient to trigger consideration because the goal at the suppression hearing was to “explain and justify the arrest ... [which is] not accomplished by a general claim of expertise.” Id. (citing Wayne R. LaFave, 2 Search and Seizure § 3.2(c) at 44-45 (4th ed.2004)). Noting that the arresting officer in Dunlap did little more than recite his experience, Justice Saylor concluded that the testimony failed to establish how that experience informed the officer’s view of the exchange he observed.
Appellant’s interpretation of Dunlap is that the majority opinion makes clear the “limited function of police experience” in the probable cause calculation. Appellant’s Brief at 11. Further, Appellant argues, Dunlap precludes the suppression court from accepting as a “stand alone factor” a police officer’s “hunch” that a suspect is engaged in illegal conduct. Id. at 12. Appellant argues that under the Dunlap majority’s holding, reversal is mandatory because the trial court relied on Officer’s Ortiz’s training to find probable cause.
The Commonwealth counters that the trial court’s decision in this case does not offend Dunlap because the officer’s training was not the only basis upon which probable cause was found and because the officer established a nexus between his experience and his observation.
In attempting to discern the precise holding and proper significance of the Dunlap majority opinion, we observe that the expression purports to hold that police experience is not a factor relevant to probable
In light of the Dunlap majority’s equivocal explanation of its holding, and given the manner in which the votes were cast in that case, it is not surprising that both parties claim Dunlap supports their positions on appeal.
Upon review of the various Dunlap expressions, we recognize the logic and soundness of Justice Saylor’s concurring opinion and so hold that “a police officer’s experience may fairly be regarded as a relevant factor in determining probable cause.”
Because we have determined that a police officer’s experience may be fairly regarded as a relevant factor in determining probable cause, and due to the presence of additional factors in support of Officer Ortiz’s conclusion that he was witnessing a drug transaction, we find no error in the Superior Court’s conclusion that probable cause was present in this case. We do not base our decision solely on Officer Ortiz’s experience and the connection he articulated between that experience and what he observed. We also rely on the fact that the transaction at issue occurred in the
The second issue certified for our review concerns the treatment to be accorded this Court’s per curiam decisions citing to Banks. Appellant asserts that these decisions are precedential and controlling authority. Appellant makes this argument based on what he characterizes as this Court’s “implicit” direction. The Commonwealth responds by relying on this Court’s prior holdings that per curiam decisions do not constitute controlling authority.
Appellant draws our attention to Commonwealth v. Fowler,
None of the cases upon which Appellant relies can support his argument. Fowler, as a plurality decision, is not binding authority. Appellant’s citation to Benninghoff not only references a non-binding concurring opinion, but attempts to expand significantly the observation in that expression to convert into binding precedent all per curiam decisions that include a citation to authority. This would fly in the face of this Court’s frequent, clear, and unequivocal statements that the legal significance of per curiam decisions is limited to setting out the law of the case. This Court has made it clear that per curiam orders have no stare decisis effect. Commonwealth v. Dickson,
The rationale for declining to deem per cunam decisions precedential is both simple
Appellant’s final argument on this issue is that “there is something inappropriate about a lower court disregarding entirely decisions of the highest court in the Commonwealth.” We strongly disagree with this characterization. In Smith, Tilghman, and a host of other cases, this Court has explicitly directed the lower courts to regard per curiam decisions as non-precedential for the reasons articulated above. The lower courts’ compliance with such direction is wholly appropriate.
Judgment of sentence affirmed.
Notes
. Appellant states that while police may have had reasonable suspicion that some criminal activity may have been afoot, thus “warranting either further observations or possibly a Teny stop,” there was not sufficient probable cause to warrant the "full-blown seizure and search" that occurred in this case. Appellant's Brief at 19.
. As we observe infra, at notes 6 and 9, Appellant's reliance on Lawson as mandating reversal is misplaced.
. At the time the trial and intermediate appellate courts confronted the issue in the instant case, this Court had not yet published its opinion in Dunlap. Thus, the Superior Court's opinion in Dunlap, which held that police experience was a factor relevant to probable cause, guided both lower courts.
. This position comported, in part, with that of the dissenting justices, who would have found the probable cause standard satisfied and affirmed the judgment of sentence. Dunlap,
. The officer in Dunlap testified to his numbers of years on the police force (almost five), his time on the narcotics strike force (about nine months), and the number of narcotics arrests he had made (about fifteen or twenty).
. Appellant also argues that reversal is warranted because the Lawson factors were not met. Appellant's argument in this regard relies solely on the fact that Officer Ortiz did not observe multiple transactions in this case. But Lawson did not require observation of multiple transactions for probable cause. Rather, it noted that observation of multiple transactions was one of six factors present in that case and, further, that all relevant factors are included in the probable cause inquiry'. Lawson,
. The Commonwealth asserts that the "disagreement [among the justices] in Dunlap concerned whether the police officer, at the suppression hearing, must establish a 'nexus’ between his experience and the observed transaction.” Appellee’s Brief at 14 n. 7.
. Insofar as the Dunlap majority holds otherwise, it is expressly disapproved. The dissent suggests that we are "discarding” the precedent articulated in Dunlap, despite the fact that the Dunlap majority “commanded the complete agreement of four justices” and so "remains the clear and controlling statement of the law” with respect to whether a police officer's experience may be regarded a relevant factor in the probable cause inquiry. Dissenting Opinion at 235,
. The dissent relies heavily on this Court’s Lawson decision in support of its claim that an officer's experience is not a factor affecting probable cause. See Dissenting Opinion at 227,
. The dissent repeatedly characterizes Officer Ortiz's experience regarding the neighborhood as subjective, thereby minimizing it. Dissenting Opinion at 230; 238; and 241,
. We are aware that Justice Saylor’s concurring opinion in Dunlap addresses the weight to be attributed to testimony about high-crime neighborhoods in cases such as these. On this issue, Justice Saylor suggests that ’’in the absence of some particular circumstance that does not substantially overlap with legitimate behavior ... the high-drug-activity location factor should [not] be given the sort of weight which would tip the totality scales in favor of finding probable cause....”
. Indeed, the Benninghoff concurrence upon which Appellant relies explicitly notes that in rendering a per curiam affirmance, this Court does “not affirm the opinion below or the rationale it expressed.”
Concurrence Opinion
concurring opinion.
Recognizing the importance of clear majority expressions when possible, I join the Majority Opinion in its entirety. See J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist.,
My views in this area have been stated at length before. See Commonwealth v. Dunlap,
Furthermore, I remain open to reconsideration of the two-page majority opinion in Banks itself, which I have elsewhere described as marking “the nadir in the history of this Courts search and seizure jurisprudence.” Commonwealth v. E.M.,
It is important to remember that these are Fourth Amendment cases, and thus this Court’s institutional role requires us to recognize and follow the teachings of
For my part, I continue to believe that we are obliged to follow governing precepts announced by the U.S. Supreme Court in Fourth Amendment cases; at a minimum, we should indicate an awareness of their existence. Dunlap did not do so. Commonwealth v. Lawson,
In any event, I question the value of parsing cases such as Banks and Dunlap when those cases made little effort to account for the rest of the rich Fourth Amendment universe. The facts sub judiee are analogous to those in Dunlap, as those facts were aptly — and entex-tainingly — summarized in Chief Justice John G. Roberts, Jr.’s statement, joined by-Justice Anthony- M. Kennedy, dissenting from the denial of certiorari in that case:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.
Pennsylvania v. Dunlap, ___ U.S. ___, ___,
The Chief Justice’s analysis of this typical, repeating fact pattern is instructive as a reminder of the limited quantum of proof required for probable cause as well as the practical, realistic nature of the probable cause inquiry under the Fourth Amendment:
The probable-cause standard is a “nontechnical conception that deals withthe factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366 , 370,124 S.Ct. 795 ,157 L.Ed.2d 769 (2003) (internal quotation marks omitted). What is required is simply “a reasonable ground for belief of guilt,” id., at 371,124 S.Ct. 795 (same)-a “probability, and not a prima facie showing, of criminal activity,” Illinois v. Gates,462 U.S. 213 , 235, 103 S.Ct. 2317,76 L.Ed.2d 527 (1983) (same). “[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists,” Ornelas v. United States,517 U.S. 690 , 700,116 S.Ct. 1657 ,134 L.Ed.2d 911 (1996), including inferences “that might well elude an untrained person,” United States v. Cortez,449 U.S. 411 , 418,101 S.Ct. 690 ,66 L.Ed.2d 621 (1981).
On the facts of this case, I think the police clearly had probable cause to arrest the defendant. An officer with drug interdiction experience in the neighborhood saw two men on a street corner-with no apparent familiarity or prior interaction-make a quick hand-to-hand exchange of cash for “ ‘small objects.’ ”941 A.2d, at 673 . This exchange took place in a high-crime neighborhood known for drug activity, far from any legitimate businesses. Perhaps it is possible to imagine innocent explanations for this conduct, but I cannot come up with any remotely as likely as the drug transaction Devlin believed he had witnessed. In any event, an officer is not required to eliminate all innocent explanations for a suspicious set of facts to have probable cause to make an arrest. As we explained in Gates, “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”462 U.S., at 244, n. 13 ,103 S.Ct. 2317 .
The Pennsylvania Supreme Court emphasized that the police did not actually see any drugs.941 A.2d, at 679 . But Officer Devlin and his partner were conducting undercover surveillance. From a distance, it would be difficult to have a clear view of the small objects that changed hands. As the Commonwealth explains in its petition for certiorari, the “classic” drug transaction is a hand-to-hand exchange, on the street, of cash for small objects. Pet. for Cert. 5-8. The Pennsylvania Supreme Court’s decision will make it more difficult for the police to conduct drug interdiction in high-crime areas, unless they employ the riskier practice of having undercover officers actually make a purchase or sale of drugs.
The Pennsylvania Court also noted that the defendant did not flee.941 A.2d, at 671 . Flight is hardly a prerequisite to a finding of probable cause. A defendant may well decide that the odds of escape do not justify adding another charge to that of drug possession. And of course there is no suggestion in the record that the defendant had any chance to flee-he was caught redhanded.
Aside from its importance for law enforcement, this question has divided state courts, a traditional ground warranting review on certiorari. S.Ct. Rule 10(b). The New Jersey Supreme Court has held that an “experienced narcotics officer” had probable cause to make an arrest when-in a vacant lot in a high-drug neighborhood-he “saw defendant and his companion give money to [a] third person in exchange for small unknown objects.” State v. Moore,181 N.J. 40 , 46-47,853 A.2d 903 , 907 (2004). The Rhode Island Supreme Courtreached the same conclusion in a case where the defendants-through their car windows-exchanged cash for a small “bag of suspected narcotics.” State v. Castro, 891 A.2d 848 , 851-854 (2006). In contrast, the Colorado Supreme Court held that a hand-to-hand exchange of unknown objects did not give the police probable cause to make an arrest, even where one of the men was a known drug dealer. People v. Ratcliff,778 P.2d 1371 , 1377-1378 (1989). All these cases have unique factual wrinkles, as any probable-cause case would, but the core fact pattern is the same: experienced police officers observing hand-to-hand exchanges of cash for small, unknown objects in high-crime neighborhoods.
The Pennsylvania Supreme Court speculated that such an exchange could have been perfectly innocent. But as Judge Friendly has pointed out, “[jjudges are not required to exhibit a naivete from which ordinary citizens are free.” United States v. Stanchich,550 F.2d 1294 , 1300 (C.A.2 1977). Based not only on common sense but also his experience as a narcotics officer and his previous work in the neighborhood, Officer Devlin concluded that what happened on that street corner was probably a drug transaction. That is by far the most reasonable conclusion, even though our cases only require it to be a reasonable conclusion.
___ U.S. at ___,
Of course, persuasive as they are, neither the dissent of the Chief Justice nor the dissent by Mr. Justice Eakin is binding precedent; but the cases the Chief Justice cites are, and the Court’s overall teachings about the nature of probable cause are. Dunlap made no effort to recognize our institutional role in determining this federal question: it failed to realize the importance of the High Court’s jurisprudence, innovated its own idiosyncratic and contrary approach, and thereby failed to grasp the fundamental nature of probable cause. Police on the street should not be required to deny the realistic and the probable in favor of the improbable and the theoretical — and certainly not under the guise of a federal constitutional standard that is bottomed in reasonableness and practicality.
. I obviously do not deem it any great affront to stare decisis to revisit Dunlap, which is in tension with prevailing federal principles and which obviously has created confusion in trial courts, which deal with this most common of drug arrests every day. Moreover, this Court’s published decisions in Banks and Dunlap are not the only source of confusion. There were a number of unexplained per curiam reversals entered by this Court in the wake of Banks, which were difficult to square with the Banks majority’s pronouncement that the facts in Banks fell just short of probable cause. That circumstance led to misguided and ultimately futile attempts to
I join the Majority Opinion.
. In holding that "a police officer’s experience may fairly be regarded as a relevant factor in determining probable cause,” the Majority Opinion "caution[sJ, however, that an officer’s testimony in this regard shall not simply reference 'training and experience abstract from an explanation of their specific application to the circumstances at hand.’ " Majority Op. at 210,
. Banks did not betray the hostility to police experience that was embraced when Dunlap rewrote this Court’s Fourth Amendment jurisprudence to view police training and experience as a non-factor in evaluating probable cause. In finding that the totality of the circumstances in Banks (single midday transaction of unidentified object for cash, followed by flight upon police approach) fell "narrowly short of establishing probable cause," the Banks majority stressed the absence of what it called "[wjell recognized additional factors giving rise to probable cause.” Banks,
Judge Cercone’s opinion in Burnside — cited approvingly and without qualification by Banks as sole support for a settled proposition — in turn included the following observations:
[Wjhile a particular type of container may have lawful purposes, the circumstances under which a trained narcotics detective views its use may be tantamount to a view of actual contraband.....The uncontradicted evidence presented by the Commonwealth in the instant case shows that Officer Jones was on patrol in an area with which he was closely acquainted and which he knew to be the scene of prior drug transactions. Officer Jones had been assigned to that locale for over five years and had personally effectuated between thirty and forty arrests for drug trafficking. From a distance of only ten feet, this experienced officer observed appellee holding a handful of the exact type of packets used by local narcotics dealers when selling cocaine.™1 The officer's suspicions as to the probable contents of the packets displayed by appellee were bolstered when appellee immediately concealed the packets and vacated his street location upon sighting the police patrol car. Officer Jones concluded that appellee’s display of what appeared to be retail packages of a narcotic coupled with appellee’s furtive movements supported the conclusion that appellee was in possession of contraband in violation of Pennsylvania's drug laws.
FN1 Officer Jones had been present when the contents of such packets, seized in numerous previous arrests, were tested. All were found to contain cocaine.
Concurrence Opinion
concurring.
I concur with the Majority to the extent that it rejects Appellant’s contentions that this Court must give precedential value to the per curiam orders rendered by this Court in the wake of Commonwealth v. Banks,
My agreement with the Majority must end here, however, because I cannot concur that the “high-crime” nature of the neighborhood “is a relevant factor.” Majority Op. at 212 n. 11,
Rather, in my view, it appears that the Majority clearly has given the high-crime nature of the neighborhood at issue here “the sort of weight which would tip the
The unfortunate result of today’s decision is that the low socio-economic character of a neighborhood will now be enough to suffice the rigorous standards of probable cause for any citizen, not just the street-level heroin dealer. While I understand that, in the social norms of today’s world, drug transactions may occur more often in neighborhoods such as the one here, the rights of Pennsylvania residents in both high-crime and low-crime areas remain the same under our Constitution. To be sure, if police can now use evidence of the high-crime nature of the neighborhood to demonstrate probable cause, then the simple action of shaking a friend’s hand upon greeting will subject those Mends potentially to being searched and seized, while the same occurrence in a low-crime area will not. Such a conclusion is patently offensive to our longstanding constitutional principles protecting every person in our society from intrusive action by the state, even in the face of an ever-increasing drug problem on our streets. See e.g. Illinois v. Wardlow,
I fully realize that a drug transfer in this case could have occurred, and that probable cause does not require absolute certainty. See Los Angeles County, California v. Rettele,
Finally, the observations made by Madame Justice Todd and Mr. Justice Saylor in their dissenting opinions instantly, as well as the ones I have now delineated, do not prohibit police from removing drug dealers from the streets. As recognized by the decisions in Commonwealth v. Lawson,
Accordingly, because I agree with Justice Saylor’s salient conclusion in Dunlap that we must not use the socio-economic character of a neighborhood as the tipping point in favor of finding probable cause, I
. In so doing, I recognize that I joined the Majority in Dunlap, and further did not join Justice Saylor’s concurring opinion. After long and careful consideration, however, I am now fully cognizant of the difficulties of police officers and trial judges alike in applying the "lens” theory espoused by the Dunlap majority.
Dissenting Opinion
dissenting.
The United States Supreme Court has observed that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates,
Dissenting Opinion
dissenting.
I respectfully, but vigorously, dissent from the Majority’s conclusion that Appellant’s immediate arrest was supported by the requisite, constitutionally-mandated probable cause.
In the case of Commonwealth v. Lawson,
This is logical since our Court in Lawson established the proper role of the officer’s training and experience in the probable cause analysis by quoting the standard enunciated by the United States Supreme Court in Henry v. United States,
Before effectuating the arrest in Lawson, the officers had conducted surveillance of two individuals, a husband and wife, from a distance of approximately ten yards via high powered binoculars, and during this surveillance they witnessed three separate exchanges of small items for money. Each of the three exchanges involved a buyer approaching the husband and handing him cash, whereupon the husband would walk over to where his wife was standing. She would then remove a small object from a dark sack secreted in her bosom and give the object to her husband, who, in turn, passed it to the buyer. The buyer would subsequently depart, and the husband would pocket the money, while the wife returned to her position on the sidewalk several feet away. After seeing the third transaction transpire, the officers drove up to the scene in an unmarked vehicle. The sight of the approaching vehicle containing the officers caused the husband and vafe to hurriedly retreat into a nearby bar. Once inside, the husband barred the door against the officers’ entry while the wife ran to the ladies room. Id. at 25-26,
Twenty-two years later, in our 5-1 decision in Commonwealth v. Banks,
The appellant’s motion to suppress was denied by the trial court, and the denial was affirmed by the Superior Court. In reversing both courts, we focused on the complete dearth of any objective factors arising from the appellant’s observed conduct that would link him to criminal activity and support a finding of sufficient probable cause on the part of police to immediately arrest him. We noted that, unlike in Lawson, the police officer did not observe the appellant engage in “multiple, complex, suspicious transactions.” Banks,
[M]ere police observation of an exchange of an unidentified item or items on a public street corner for cash (which alone does not establish probable cause to arrest) cannot be added to, or melded with the fact of flight (which alone does not establish probable cause to arrest) to constitute probable cause to arrest. Such facts, even when considered together, fall narrowly short of establishing probable cause.
Id. at 456,
Notably, we expressly rejected the argument that the appellant’s flight at the sight of police gave rise to probable cause for his arrest, due to the paucity of other factual circumstances pointing to his involvement in criminal activity — once more reinforcing the principle that no one single factor viewed in isolation establishes probable cause. Moreover, and importantly, just as
Banks remained undisturbed for the ensuing 12 years.
Appellant filed a motion to suppress the evidence based on the lack of probable cause to arrest him, which was denied by the trial court. He next appealed to the Superior Court, arguing that Banks required reversal, but a sharply divided 5-4 en banc panel of the Superior Court disagreed and affirmed his conviction. Commonwealth v. Dunlap,
Judge Johnson authored a dissenting opinion in which he concluded that the majority’s consideration of the officer’s experience as a separate factor, in addition to the other six objective, circumstantial factors articulated in Lawson, improperly changed the law as it had been established by that case and Banks
On appeal to this court, we reversed. In her majority opinion, Justice Baldwin found it important that our Court did not list police training and experience in Lawson as a factor to be considered in determining the existence of probable cause.
The Dunlap majority additionally explained why this prerequisite was vital to enforcing the constitutional requirement that probable cause exist before a warrantless arrest may be undertaken:
[I]n reviewing probable cause, a police officer’s training and experience is not a probable cause factor in the Lawson sense. If that were the case, the concept of probable cause as a constitutional barrier between the privacy of the citizen and unwarranted governmental intrusions would be undermined by an officer’s ability to bootstrap a hunch based on constitutionally insufficient objective evidence simply by adverting to his experience as the foundation of his suspicion. While probable cause is a fluid concept, and requires only a showing that criminal activity may be reasonably inferred from a set of circumstances and need not be shown to, in fact, exist we must nonetheless remain true to its purposes, one of which isprotecting citizens from arbitrary police intrusions. If we were to conclude that a police officer’s experience was a factor to be added to every probable cause determination, rather than serve as a lens through which to view the facts, then every time an experienced officer begins a shift, probable cause begins to be assessed against all citizens every time they fall under the watchful eye of a suspicious officer who has been on the job for a meaningful period of time. The danger of this, of course, is the potential for innocent citizens being unlawfully seized and/or searched, i.e., being searched or seized with less than probable cause.
Dunlap,
Applying these tenets to determine whether sufficient probable cause existed to validate the appellant’s arrest, the Dunlap majority reaffirmed the Lawson/Banks principle that every commercial transaction between citizens on a street corner involving unidentified property does not furnish probable cause for the arrest of the parties thereto. The majority considered the underlying facts surrounding the appellant’s arrest to be “more analogous” to the sequence of events which transpired in Banks, as opposed to what occurred in Lawson, and it found the observed circumstances, even when viewed from the perspective of an experienced police officer, did not furnish sufficient probable cause to arrest.
The majority noted the presence of only one of the Latvson factors — the officer’s claim that the transaction occurred in a “high crime area” — but it rejected the idea that this assertion, standing alone, provided probable cause to arrest. By contrast, the majority found the presence of a number of other significant details about the incident militating against a finding of constitutionally adequate probable cause for arrest: (1) the appellant participated in only one isolated transaction; (2) the officer had no tip or other information which suggested that the appellant was involved in drug activity or that a drug sale was about to occur; (3) the officer observed no drugs changing hands in the transaction or the presence of drug paraphernalia; and (4) the appellant made no attempt to flee from the police. Thus, the paucity of objective reasons for the appellant’s arrest compelled the majority’s conclusion that the arrest had improperly taken place on the basis of “mere suspicion, not probable cause.” Dunlap,
In the case sub judice, the observed factual circumstances leading to the arrest of Appellant closely mirror those present in Dunlap, and, thus, Appellant’s arrest likewise suffers from the same critical deficiency of probable cause. Just as in Dunlap, the officer in the instant matter, prior to arresting Appellant, had no prior warning from an informant or identified citizen complainant that Appellant was involved in the narcotics trade and would be selling drugs at that location. Likewise, the arresting officer did not observe Appellant engaging in multiple orchestrated, complicated, and suspicious transactions; rather, he observed a single lone transaction, for an unknown object, after which Appellant did not flee or otherwise attempt to evade or resist the police. Importantly, the officer at no time observed the presence of any drugs, or containers which he knew through his experience to commonly be
The only factors present which the trial court found to justify the arrest of Appellant were the arresting officer’s opinion of the nature of the neighborhood and his prior experience making drug arrests which gave rise to his belief that he had witnessed a sale of narcotics. See Trial Court Opinion, 8/11/06, at 6 (“The officer’s knowledge of the nature of the area, his experience in drug arrests, his ability to observe the transaction, and his reasonable belief that he had just witnessed a sale of narcotics together were sufficient to constitute probable cause.”). Nevertheless, the trial court considered these factors sufficient to establish probable cause based on the Superior Court’s decision in Dunlap, which, as discussed at length above, we expressly overruled.
Because we rejected the Superior Court’s rationale in our Dunlap decision and held that the factors relied on by the trial court herein, even considered together, are not enough to give rise to probable cause to arrest, the trial court’s denial of Appellant’s suppression motion should presently be reversed, in accordance with our holding in Dunlap. However, even though the facts of the case sub judice are nearly on all fours with the facts of Dunlap, and even though this case presents the same legal question as that which we so recently resolved in Dunlap, the Majority today has chosen to abandon its holding by concluding that a police officer’s experience may now be considered as a separate “relevant factor” to be utilized in determining whether probable cause exists for arrest. Majority Opinion, at 210,
Although two members of the Dunlap majority, Chief Justice Cappy and Justice Fitzgerald, also joined the concurring opinion by Justice Saylor, both justices, along with Justice Baer, joined Justice Baldwin’s opinion fully and without reservation, thus signifying their agreement with all aspects of it. Having commanded the complete agreement of four justices, it is Justice Baldwin’s opinion which is precedential, not the concurrence. See Commonwealth v. Tilghman,
Moreover, even though Justice Saylor concluded in his concurrence that a police officer’s experience “may fairly be regarded as a relevant factor in determining probable cause,” relying on Banks he also emphasized our Court’s historical insistence on finding a “factor ... distinctly associated” with the offense in question as a predicate to probable cause. Dunlap,
Justice Saylor also noted in his concurrence, as the Majority presently acknowledges, that in order for the officer’s training and experience to be considered in establishing probable cause, the officer must testify as to how his or her training and experience applies to the specific circumstances he or she observed. Here, the officer did not offer any testimony to explain what particular elements of the transaction he saw caused him to believe, based on his experience and training, that it was a sale of drugs. He instead relied on his prior observations of other transactions — the details of which he did not provide or compare — and his perspective regarding the nature of the neighborhood as a “high drug crime location.” However, both factors are rooted in past unrelated events, and do not, in and of themselves, establish a fair probability that this particular transaction was criminal in nature, absent other surrounding indicia of criminality.
a principle of great magnitude and importance .... absolutely necessary to the formation and permanence of any system of jurisprudence];,] ... [without [which] we may fairly be said to have no law, [since] law is a fixed and established rule, not depending in the slightest degree on the caprice of those who may ... administer it.
McDowell v. Oyer,
The rule of stare decisis, like all legal maxims, is, of course, not absolute. When it becomes “clear that the reason for a law no longer exists and modern circumstances and justice require a change, and no vested rights will be violated, a change should be made.” Woodhouse,
None of these considerations is present, however, in the instant case. Dunlap was decided a mere two years ago; has not been eroded by any successive decisions of this Court; and its facts cannot be materially distinguished from the facts of the instant matter. Thus, stare decisis strongly militates against reversing Dunlap since it would serve to unsettle an area of law to which we very recently spoke and which we have long been consistent in our jurisprudence. It is jurisprudentially unsound to disturb an area of law to which our Court has so recently opined. Gardner v. Consol. Rail Corp.,
Moreover, the need to preserve stability in the law is especially potent in this instance since the decision being upended is one which confirms basic constitutional protections of individual rights. See Florida Dept. of Health and Rehabilitative Serv. v. Florida Nursing Home Ass’n,
I therefore must dissent.
. Since I conclude, for the reasons set forth herein, that Appellant's conviction should have been reversed, I deem it unnecessary to address the second issue discussed in the majority opinion regarding the precedential effect of our Court's per curiam orders.
. Although not specifically referring to it as such, the Lawson requirement that all of the factual circumstances surrounding the alleged criminal activity be viewed in conjunction with one another to determine if probable cause to arrest was present has now come to be known as the "totality of the circumstances" test. See Illinois v. Gates,
. During that time, our Court reversed the Superior Court no less than five times via per curiam orders which cited only to Banks as the reason for reversal. See Commonwealth v. Albino,
. Then a Superior Court judge, I joined Judge Johnson's dissenting opinion.
. Justice Baldwin's opinion was joined, in full, by Justices Baer, Chief Justice Cappy, and Justice Fitzgerald. Justice Saylor authored a separate concurring opinion which was joined by Chief Justice Cappy and Justice Fitzgerald. Then-Justice, now-Chief Justice, Castille and Justice Bakin each authored a separate dissent.
. This principle was also articulated, inter alia, in the cases of Commonwealth v. Clark,
. The Superior Court in the instant case affirmed on the basis of the trial court opinion and agreed with the trial court that its opinion in Dunlap was “controlling." Commonwealth v. Thompson, No. 1521 EDA 2006, unpublished memo at 4 (Pa.Super. filed June 19, 2007). As the Majority Opinion notes, we had not yet issued our decision in Dunlap when the lower courts in the instant case issued their respective decisions.
. While Justice Saylor agreed that a police officer's experience was a relevant factor in determining probable cause, his thoughtful concurrence also addressed a number of other matters, including concern about how much weight should be given to the fact that the location of the conduct was in a “high crime area” given its attendant ramifications, the relevance of experience and training by itself in establishing probable cause given the fact that many gestures and motions commonly associated with drug use are equally consistent with innocent legitimate, non-criminal activities; and his agreement with the majority’s reaffirmance of Banks as “a legitimate and reasoned effort to implement the compromise embodied in the probable cause standard between safeguarding citizens from undue interference with their constitutionally-protected liberty and privacy interests, and the affordance of fair leeway to the government in its enforcement of the law and protection of our communities.” Dunlap,
. As aptly noted by Professor Margaret Raymond of the University of Iowa School of Law:
Police testimony in the neighborhood cases ... focuses ... on the number of times the observed behavior, in the officer’s experience, correlated with confirmation that the suspect was engaged in criminal conduct, without suggesting anything about how often comparable suspicions were proved groundless or how often those observed behaviors correlated with persons generally believed by the officer to be law-abiding. Asking how often the suspect's behavior in a particular neighborhood correlates with unlawful behavior without asking how often it correlates with lawful conduct creates a skewed and incomplete picture of the probability of criminal conduct generated by this evidence.
Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 132-33 (1999) (footnotes omitted); see also Wayne R. LaFave, 2 Search and Seizure, Fourth Edition § 3.6, 368 n. 224 (quoting James R. Acker, Social Sciences and the Criminal Law: The Fourth Amendment, Probable Cause, and Reasonable Suspicion, 23 Crim.L.Bull. 49, 79 (1987)): (“Three reasons suggest caution in allowing the nature of an area to carry weight in assessing whether activity that occurs in the area is likely to be criminal in nature. The dangers are those of committing the ecological fallacy (impermissibly attributing the characteristics of the area to individuals within the area); of legitimizing an impermissibly high incidence of false positives (arresting innocent parties), compounded by the likely correlation of factors such as race and socioeconomic status with the erroneous seizure decisions; and of giving valid definition to the concept of a 'high-crime area,' especially since police behavior can largely produce the measure or indicators of such areas (the problem of a 'self-fulfilling prophecy’).”
. The Justices of our Court have often set aside our differences with precedent out of respect for the principle of stare decisis. See, e.g., Commonwealth v. Bennett,