Com. v. Dunlap

• Decision Date: 28 December 2007
• Docket Number: No. 33 EAP 2006.,33 EAP 2006.
• Citation: 941 A.2d 671
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Nathan DUNLAP, Appellant.
• Court: Pennsylvania Supreme Court

941 A.2d 671

COMMONWEALTH of Pennsylvania, Appellee, v. Nathan DUNLAP, Appellant.

No. 33 EAP 2006.

Supreme Court of Pennsylvania.

Argued April 17, 2007.

Decided December 28, 2007.

Mark Patrick Cichowicz, Esq., Karl Baker, Esq., Defender Association of Philadelphia, for Nathan Dunlap.

Hugh J. Burns, Jr., Esq., Peter Carr, Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice BALDWIN.

In this case, a trained police officer, working in what the officer termed a highcrime neighborhood, observed Appellant and another individual exchange currency for an unknown object without seeing any other suspicious activity. Shortly thereafter, Appellant was arrested and searched without a warrant. As it turned out, Appellant was in physical possession of crackcocaine. He was thereafter charged with various' narcotics-related offenses. Prior to trial, Appellant moved to suppress the seized narcotics. The motion was denied by the trial court and affirmed by the Superior Court, which found the observing officer's training and experience particularly relevant in determining that probable cause existed to support the seizure. We granted allocatur to determine whether the Superior Court's decision was inconsistent with our decision in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). We reaffirm .Banks and hold that probable cause was lacking in the instant case, in violation of the Fourth Amendment to the United States Constitution. For the reasons explained in greater detail below, we reverse the conviction.

On May 4, 2001, Officer Devlin of the Philadelphia Police Department and his partner were conducting plainclothes surveillance at 2700 North Warnock Street in North Philadelphia, which is at the corner of Warnock and Somerset Streets. Officer Devlin watched as Nathan Dunlap (Appellant) approached another individual standing on that same corner. After approaching, Appellant engaged in a brief conversation with the other man, handed him money, and was, in return, handed "small objects." Commonwealth v. Dunlap, 846 A.2d 674, 675 (Pa.Super.2004). After Appellant walked away, Officer Devlin broadcasted Appellant's description over police radio. Officer Richard Stein apprehended Appellant a short distance from the Warnock and Somerset corner, A search of Appellant revealed three packets that contained crack-cocaine.

Officer Devlin testified that, at the time of the subject citizen-police encounter, he had been a police officer for almost five years. Further, he had been a member of the drug strike force for nine months. Officer Devlin testified that he had conducted "about fifteen to twenty" narcotics arrests in the general geographic area. According to him, North Warnock is a residential area that suffers from a high rate of nefarious activity, including drug crimes. Based on his experience and his characterization of the neighborhood, Officer Devlin believed that the transaction he witnessed involved illegal drugs.

Prior to trial, Appellant filed a motion to suppress the evidence, alleging that the police lacked probable cause to conduct the warrantless arrest and subsequent search. The trial court heard Officer Devlin's testimony. The court denied the motion. Immediately thereafter, Appellant was convicted of possession of a controlled substance in the Philadelphia Municipal Court. 35 P.S. § 780-113(a)(16). Appellant then petitioned for a writ of certiorari in the Court of Common Pleas of Philadelphia County, arguing that the Municipal Court erred in denying his motion to suppress. The Court of Common Pleas rejected Appellant's argument and affirmed the verdict and judgment of sentence. Commonwealth v. Dunlap, No. 01-913326, slip op. at 2-3 (Ct. of Com. Pleas of Philadelphia Cty. Jan. 2, 2002). Appellant timely appealed to the Superior Court. In a published opinion, the Superior Court, sitting en banc, affirmed in a five to four decision, finding that probable cause existed to support the warrantless arrest and subsequent search. Dunlap, 846 A.2d at 675.

Although the court acknowledged that this Court's decision in Banks held that "absent other factors, the mere fact that a regular police officer sees a transaction on the street in which money passes from one person to the other and some unknown objects are given in return does not amount to probable cause to arrest for a drug transaction, even where the suspect has fled on seeing the police," Dunlap, 846 A.2d at 675 (citing Banks, 540 Pa. at 455, 658 A.2d at 753), it found the instant facts distinguishable. The distinctions between the instant matter and Banks which the Superior Court noted were: (1) "an experienced narcotics officer makes the observations;" (2) "the transaction takes place in what the officer knows from personal, professional experience as well as reputation to be a high drug-crime area;" and (3) "based on his or her training, experience as an officer and knowledge of the area, the officer reasonably concludes that he or she probably witnessed a drug transaction." Dunlap, 846 A.2d at 675. Based on these "key differences," the majority concluded that probable cause existed to support the police action.

Judge Johnson, joined by three other judges, dissented, taking issue with the majority's use of police training and experience as a factor in determining the existence of probable cause. The dissent relied on Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973), where this Court enunciated a non-exhaustive list of factors for courts to examine in assessing whether probable cause existed in situations where police observe a commercial street transaction of an unknown item. In the view of the dissenters, an officer's experience is not a factor to be included in the probable cause formula, but rather it serves only as a "lens through which to view [the Lawson] factors." Dunlap, 846 A.2d at 679 (emphasis added). Indeed, the dissent would find that "the officer's experience governs the manner of examination called for by Lawson, but cannot of itself rise to probable cause. Thus, it is the totality of the circumstances, especially those six factors identified in Lawson, as perceived by an officer (not a layperson) that we must consider." Id. (emphasis in original). Utilizing this framework, the dissent, citing Banks, would have found probable cause to be lacking.

We begin our discussion with the relevance of police training and experience to the probable cause determination. "To be constitutionally valid, an arrest must be based on probable cause." Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 680 (1976); United States Const., Amend. IV.¹ The existence or non-existence of probable cause is determined by the totality of the circumstances. Commonwealth v. Clark, 558 Pa. 157, 164, 735 A.2d 1248, 1252 (1999) (citing Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), and Commonwealth v. Evans, 546 Pa. 417, 422, 685 A.2d 535, 537 (1996) (Opinion Announcing the Judgment of the Court)). The totality of the circumstances test requires a Court to determine whether "the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime." Commonwealth v. Rodriguez, 526 Pa. 268, 272-73, 585 A.2d 988, 990 (1991).

Our decision in Lawson is particularly important here as it set forth the relevant factors to be considered in situations such as the one presented in this case.² In that case, police officers observed Mr. Lawson and his wife standing on a street corner at 11:50 p.m. Lawson, 454 Pa. at 25, 309 A.2d at 392. They watched using binoculars, and at least one officer used high powered day and night binoculars. Id. at 25, 309 A.2d at 393. The officers observed three separate transactions occur. In each transaction, a third person approached and handed money to Lawson. Lawson would then walk to his wife, who would retrieve a small sack from her bosom. Lawson's wife would then take a small item from the sack and hand it to Lawson, who would in turn hand it to the third person. Id. After observing the third transaction conducted in this manner, the police approached the Lawsons, who fled into a local bar where they were soon apprehended. Id. at 26, 309 A.2d at 393. In determining that probable cause existed to arrest the Lawsons, we indicated:

All the detailed facts and circumstances must be considered. 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 small items were kept by one, of the sellers is important; the movements and manners of the parties are important.

Id. at 28, 309 A.2d at 394. This list is not, nor did this Court ever intend it to be, exhaustive. Rather, it offers an illustration of the types of factors properly considered in assessing the existence of probable cause. Nonetheless, the absence of police training and experience from this list is notable.

Since Lawson, we have never formally recognized an officer's training and experience, without more, as a factor—in the Lawson sense—for purposes of the totality of the circumstances test. Instead, we have utilized officer training and experience as an aid in assessing the Lawson factors. As mentioned, we review probable cause pursuant to the totality of the circumstances test. In conjunction, we have long held that in applying this test to warrantless arrests, probable cause "... is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his training and experience." Commonwealth v. Norwood, 456 Pa. 330, 334, 319...