Com. v. Revere

• Decision Date: 28 December 2005
• Citation: 888 A.2d 694
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James REVERE, Appellant.
• Court: Pennsylvania Supreme Court

888 A.2d 694

COMMONWEALTH of Pennsylvania, Appellee v. James REVERE, Appellant.

Supreme Court of Pennsylvania.

Argued October 18, 2004.

Decided December 28, 2005.

Ellen T. Greenlee, Karl Baker, Karl Lawrence Morgan, Philadelphia, for James Revere.

Hugh J. Burns, Peter Carr, Philadelphia, for Com.

Before CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

OPINION

Justice CASTILLE.

This Court granted limited review to consider the propriety of the Superior Court's recognition of an exigent circumstances exception to the probable cause analysis employed in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982). For the reasons that follow, we hold that exigent circumstances may justify police transporting a suspect a short distance in the absence of probable cause during the course of an investigative detention pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); or stated another way, we conclude that, where exigent circumstances exist, a brief detention and transportation in a police vehicle does not automatically constitute an arrest which must be supported by probable cause. Accordingly, we affirm.

Appellant was arrested on July 2, 1997 and charged with violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6162, specifically, carrying a firearm without a license, id. § 6106, and carrying a firearm on a public street or public property in Philadelphia. Id. § 6108. Appellant filed a motion to suppress the firearm found on appellant which formed the basis for the prosecution, citing both Article 1, Section 8 of the Pennsylvania Constitution,¹ and the Fourth Amendment of the United States Constitution.² A suppression hearing was held on February 2, 1998 before the Honorable James J. Fitzgerald, III.

The sole witness to testify at the suppression hearing was Philadelphia Police Officer Broderick Mason. Officer Mason testified that, at approximately 9:50 a.m. on July 2, 1997, he and his partner, Officer Carl Selby, were patrolling the area around 2500 North Chadwick Street in North Philadelphia in response to complaints received about the high volume of drug sales in the area. The officers were in plainclothes and riding in an unmarked police vehicle. After Officer Selby parked on Huntingdon Street near 17th Street, Officer Mason walked one block over to Chadwick Street, sat on a step and began reading a newspaper, "trying to blend in." Shortly thereafter, Officer Mason observed three men — appellant, Charles Felder and an unidentified man — sitting on the steps six to seven houses away from his location, at 2509 North Chadwick Street. A woman approached Felder, who retrieved a clear plastic baggy from his pocket, took money from her and, in exchange, gave her objects from the baggy. The woman then walked away and Felder placed the baggy in the gas cap of a nearby automobile.

Officer Mason believed that he had just witnessed a drug transaction.³ The officer returned to his partner, and they began to patrol the area in their unmarked police vehicle. One block from where the transaction occurred, the officers saw the same three men. They left their vehicle, identified themselves as police officers, displayed their badges, and attempted to stop the men. Appellant and Felder heeded the officers' directives, but the third male ran. Two uniformed female police officers in the immediate vicinity pursued the fleeing male.

Soon thereafter, Officers Mason and Selby heard the female officers "screaming and hollering." Fearing that their fellow officers might be in danger or in need of assistance, Officers Mason and Selby instructed appellant and Felder to place their hands on their heads and to enter the back of the unmarked police vehicle.⁴ The officers did not handcuff appellant or Felder, nor did they frisk them for their safety before placing them into the vehicle. The officers also did not have their guns drawn. The officers then drove around the block toward the direction of the female officers' screams, which proved to be the approximate location of the prior alleged drug transaction. When Officers Mason and Selby arrived, the female officers informed them that the screams that they had heard were directed to the unidentified man to get him to stop, but the man had escaped. N.T. 2/2/98, at 5-9, 11-19.

Immediately thereafter, the officers told appellant and Felder to exit the police vehicle and they then resumed their investigative detention. Officer Selby performed a pat-down of Felder, recovering a clear plastic baggy containing thirty-nine black-tinted, small packets of crack cocaine. During Officer Selby's pat-down of Felder, and before appellant could be frisked, Officer Mason noticed appellant shaking his right leg. Officer Mason saw something slide down appellant's pants leg, heard a thump as the object hit the ground, and then saw appellant kick the discarded object under the police vehicle. Officer Mason looked under the vehicle and recovered a loaded, .38-caliber handgun. He then arrested appellant. A search incident to arrest yielded $1105 in United States currency and three rounds of .38-caliber ammunition from appellant's pocket. Id. at 9-10.

At the close of the evidence, appellant argued that he was under arrest once police placed him in the police vehicle, that police lacked probable cause to effect that arrest, and that the illegal arrest tainted the subsequent seizure of evidence. Judge Fitzgerald took the motion under advisement and then on March 3, 1998, issued findings of fact and conclusions of law, in which he denied appellant's motion to suppress. The court found that, upon observing what appeared to be an illegal drug transaction by Felder, police had probable cause to arrest Felder, but that they lacked probable cause to arrest appellant up until the time the gun fell from his pants leg. However, the court concluded that appellant's presence with Felder, a suspected drug dealer, at the scene of the transaction and at the scene of Felder's arrest, gave police reasonable, articulable suspicion that appellant might also be armed and dangerous, such that they could lawfully perform a Terry stop and frisk for their own safety. The court also found that exigent circumstances existed which justified Officers Mason and Selby in interrupting their stop of appellant and Felder, i.e., they "were required to aid their fellow officers who were attempting to apprehend the fleeing male."⁵ Further, the court held that, under the totality of the circumstances — including the reasons for the transportation, its short duration, the short distance of transportation, and the fact that appellant was not handcuffed — the mere placement of appellant in the police vehicle did not convert the investigative detention into an arrest. With respect to the seizure of the firearm, the court found that once the firearm fell from appellant's pants leg, police had probable cause to arrest him; the subsequent search of appellant and the seizure of ammunition and currency therefore were lawful as an incident to that arrest.

Appellant proceeded to a bench trial before the Honorable John J. O'Grady and was convicted of both firearms charges. On March 5, 2001, appellant was sentenced to nine to twenty-three months of incarceration to be followed by two years of reporting probation.

On appeal, a Superior Court panel initially reversed in a 2-1, unpublished memorandum opinion, citing Lovette for the bright-line proposition that "[p]lacing a suspect into a police vehicle in order to transport him to the scene of the offense is an arrest and must be supported by probable cause" which, in this case, was lacking at the time of transport. However, the panel subsequently reconsidered and vacated its order. On November 20, 2002, the panel issued a published, 2-1 decision which affirmed the judgment of sentence. Commonwealth v. Revere, 814 A.2d 197 (Pa.Super.2002).

The new panel majority, in an opinion authored by the Honorable Peter Paul Olszewski, found that the circumstances surrounding appellant's detention prior to the discovery of the gun did not exceed the limits of an investigatory detention. The majority reasoned that those circumstances — brief duration, no force, no restraints, and the short distance of transportation — revealed that the detention "avoided the coercive characteristics associated with an arrest." Revere, 814 A.2d at 200. Thus, the majority concluded that the officers required only reasonable suspicion to justify their seizure and transportation of appellant. The majority then determined that the officers had reasonable suspicion to stop Felder because of the narcotics transaction they believed they had observed him conduct; and, under Superior Court authority, there was also reasonable suspicion to stop appellant as he was Felder's companion. Id. at 201 (citing Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346, 348 (1992) ("When a person is suspected of presently committing a crime, a reasonable suspicion develops that his companion is also involved, even though the companion's only suspicious action was being in the company of the suspect.")).

The majority also rejected appellant's argument that this Court's decision in Lovette compelled a finding that he was under arrest once he was placed in the police vehicle and transported. In the majority's view, appellant "misread" Lovette as establishing such a per se rule. Lovette "clearly indicates that when such an action is justified, placing a suspect into a police vehicle in order to transport him to the scene is not an arrest and need not be supported by probable cause." Revere, 814 A.2d at 200. The majority recognized that, under the facts in Lovette, this Court found that an arrest had occurred; however, the majority deemed it significant that Lovette had suggested that transporting a suspect during an investigative detention could be justified by exigent circumstances. The majority then...