Com. v. Dennis

• Decision Date: 09 September 1992
• Citation: 612 A.2d 1014,417 Pa.Super. 425
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Gary DENNIS.
• Court: Pennsylvania Superior Court

Page 1014

612 A.2d 1014

417 Pa.Super. 425

COMMONWEALTH of Pennsylvania, Appellant, v. Gary DENNIS.

Superior Court of Pennsylvania.

Argued May 21, 1992.

Filed July 20, 1992.

Reargument Denied Sept. 9, 1992.

Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Owen Larrabee, Asst. Public Defender, Philadelphia, for appellee.

Before BECK, JOHNSON and HUDOCK, JJ.

BECK, Judge.

This is an appeal by the Commonwealth from an order of the trial court suppressing 100 vials of cocaine and $497 in cash which were seized by the police following defendant's arrest. The trial court found that the police officers seizing these items lacked probable cause to believe that defendant-appellee had committed a crime, and that therefore their pursuit of defendant into a nearby dwelling and subsequent seizure of the items was unlawful. Appellant argues that the trial court erred in finding no probable cause and no justification to enter the building. We agree with Commonwealth-appellant that, based on the facts of this case, the trial court's findings were legally erroneous. We therefore reverse the order to suppress and remand for further proceedings. ¹

Our standard of review of the grant of a suppression motion is well established:

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court's findings of fact if supported by the record, we are not bound by the lower court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. den., 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990), alloc. den. 527 Pa. 608, 590 A.2d 295 (1990), quoting Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353-54 (1988).

The uncontroverted testimony presented at the suppression hearing establishes the following facts. On March 9, 1989, uniformed police officers Edward Bier and John Marynowitz were in a marked police car, patrolling the 1600 block of Sparks Street, in response to neighbors' complaints that drugs were being sold at 1618 Sparks. (N.T. 4/16/91, p. 21). At 3:25 p.m., Officer Bier saw the defendant, Gary Dennis, and another man in front of the doorway of 1618 Sparks Street (N.T., p. 5, p. 15). Officer Bier saw the other man hand defendant an amount of U.S. currency, which defendant placed in his right pocket; defendant then reached into his left pocket and took out an object which Bier could not see. (N.T., p. 6).

Officer Bier got out of his patrol car and approached the two men, who turned and ran into the house. (N.T., p. 8). Bier and Marynowitz chased the men inside; Bier followed defendant to a second-floor bedroom, where he saw defendant open a window and throw out a clear plastic bag containing a white, chunky substance. (N.T., p. 9). Bier grabbed the defendant and looked out the window to determine where the bag had fallen. (N.T., p. 9). At that point, Officer Marynowitz entered the room and frisked defendant, finding the money in defendant's pocket, and defendant was placed under arrest. (N.T., p. 12-13). Bier then went downstairs and outside the house, where he recovered the plastic bag thrown out the window by defendant. (N.T., p. 12). The bag was found to contain crack cocaine. (R.R., p. 51a).

The court below found that because there was no probable cause to believe defendant had committed a crime at the time Officers Bier and Marynowitz chased him into the building, their entry into the building and seizure of the suppressed items was unlawful. We disagree. Warrantless entry into a dwelling, and a subsequent seizure of items found therein, is permissible where the police are in "hot pursuit" of a fleeing felon. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Of course, the police must have probable cause to believe that the individual they are pursuing has committed a crime. Commonwealth v. Montgomery, 246 Pa.Super. 371, 371 A.2d 885 (1977). We find that the police had probable cause.

Probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent individual in believing that an offense was committed and that defendant has committed it. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. den., 521 Pa. 617, 557 A.2d 721 (1989). In determining whether probable cause existed in a particular situation, a court will look not just at one or two individual factors, but will consider the "totality of the circumstances" as they appeared to the arresting officer:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element ... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act.

Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822, 824 (1979). As courts of this Commonwealth have repeatedly emphasized, determinations of probable cause "must be based on common-sense nontechnical analysis." Commonwealth v. Gray, 509 Pa. 476, 482, 503 A.2d 921, 925 (1985).

Taking a common-sense view of the facts before us, we find that when Officer Bier, knowing of neighbors' complaints that drug deals were occurring at 1618 Sparks, observed defendant at that address accept money in exchange for the transfer of a small item, and then bolt when he saw the police approaching, he had probable cause to believe that criminal activity had occurred. This case is similar to others in which tips to police were corroborated by such other facts as to create a reasonable belief of criminal activity. See, e.g., Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) (anonymous tip regarding drug dealing corroborated by police observation of the specified location established probable cause); Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979) (police had probable cause to arrest driver of a vehicle fitting description of a stolen truck when driver could not produce license or owner's card); Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984) (informant's tip regarding drug dealing corroborated by police observation of defendant).

We find particularly compelling in this case the fact that residents of the area, individuals living on the 1600 block, made multiple reports to police of drug dealing at 1618 Sparks. Members of a particular neighborhood are uniquely well-qualified to observe what is going on in their community, and should be supported in reporting drug activity to the police. As our Supreme Court noted in Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981), regarding another citizen's reports to police:

Unlike in the typical informant case, where there exists the potential that the informant is acting out of self-interest, here there is no basis to conclude that Quinones was motivated by anything other than good citizenship in making his disclosure.... when an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.

436 A.2d at 1381. Accord, Commonwealth v. Singleton, Pa.Super.Ct. 1992, 603 A.2d 1072, 1074, quoting Commonwealth v. Gray, supra, 509 Pa. at 483-84, 503 A.2d at 925 ("such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise 'perfect crimes' ").

The trial court's differing conclusion in this case appears to stem from two basic errors of approach. First, the court failed to consider the "totality" of the circumstances known to the arresting officer; rather, the court listed each individual factor (the complaints, the exchange, the defendant's flight) and cited cases finding that factor, in isolation, not to constitute probable cause. This is incorrect. "Facts insufficient to justify an arrest if considered separately may in combination supply probable cause." Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228, 1235, quoting Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976).

Second, the court erred in appearing to use a higher standard for establishing probable cause than is appropriate. The court below discounted defendant's exchange of money for some object and his flight into the house at 1618 Sparks Street as factors in establishing probable cause because of his belief that such behavior could have an innocent, rather than criminal, explanation. This is again incorrect. Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference. See, e.g., Commonwealth v. Kendrick, 340 Pa.Super. 563, 571, 490 A.2d 923 (1985) (probable cause "does not demand any showing that ... a belief [of criminal activity] be correct or more likely true than false"); Commonwealth v. Moss, 518 Pa. 337, 344, 543 A.2d 514 (1988) (in assessing sufficiency of probable cause, the fact that other inferences could be drawn from circumstances does not demonstrate that inference that was drawn by police was unreasonable).

In sum, we find that the police officers here had probable...