Com. v. Robinson

• Decision Date: 28 December 1994
• Citation: 438 Pa.Super. 119,651 A.2d 1121
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Tamika ROBINSON.
• Court: Pennsylvania Superior Court

Page 1121

651 A.2d 1121

438 Pa.Super. 119

COMMONWEALTH of Pennsylvania, Appellant, v. Tamika ROBINSON.

Superior Court of Pennsylvania.

Argued Oct. 19, 1994.

Filed Dec. 28, 1994.

Dennis C. McAndrews, Asst. Dist. Atty., Media, for Commonwealth, appellant.

Clinton L. Johnson, Chester, for appellee.

Before CIRILLO, OLSZEWSKI and HESTER, JJ.

HESTER, Judge:

The Commonwealth appeals from the order entered on March 17, 1994, in the Court of Common Pleas of Delaware County in which the trial court suppressed 308 grams of cocaine seized at appellee's residence as the result of the execution of an arrest warrant at 1114 Norris Drive in Chester, Pennsylvania. For the reasons which follow, we reverse and remand for further proceedings.

The facts of the case may be summarized as follows. On June 8, 1993, at approximately 7:30 a.m., detectives from the Delaware County Criminal Investigation Division ("CID") and from the Chester City Police Department attempted to execute an arrest warrant for Keith Robinson at 1114 Norris Drive in Chester, Pennsylvania. CID Detective Joseph Ryan and Chester City Detective Stephen Fox went to the front door of the residence while CID Detective Charles List and Chester Police Officer John Vincenzo went to the rear of the residence. The detectives wore jackets and hats with identifying insignia on them, Detective Ryan's badge was visible outside of his jacket, and Officer Vincenzo was in uniform. Notes of Testimony ("N.T."), 3/15/94, at 6, 17. Detectives Ryan and Fox knocked on the front door which was opened by Sharon Robinson. The detectives identified themselves as police officers and indicated they had a warrant for the arrest of Keith Robinson. Ms. Robinson stated Keith was her son, but he was not present at that time. ¹ Id. at 17. Detective Ryan asked if he could look through the house, and Ms. Robinson assented.

At that point, a teenage black male walked down the steps from the second floor, made eye-contact with Detective Ryan, turned, and ran upstairs. Detective Ryan followed, heard a door close on the second floor, and attempted to obtain identification from the young man who was standing adjacent to the closed door. Detective Ryan then heard a window open behind the closed door. Fearing that Keith Robinson was fleeing the premises, Ryan opened the door. Inside he saw appellee, who was dressing in the bathroom. He told her to get dressed and come out and shut the door. Detective Ryan resumed trying to obtain identification from the black male.

Meanwhile, Detective Fox also had started up the stairs but was re-called by Detective List and Officer Vincenzo, who had come to the front door from the rear of the premises. Detective List told Detective Fox that while he was standing outside in the rear of the residence, he had observed a window open on the second floor, and two female hands place a brown paper bag on the exterior ledge of the window, and then close the window. Detective Fox went upstairs, observed a black female, appellee, exit the bathroom, and went into the bathroom and retrieved the bag on the window ledge. Upon feeling the bag's contents, and based upon his twenty-three years of experience, Detective Fox suspected that it contained illegal drugs and opened the bag. The bag later was determined to contain 308 grams of cocaine.

Appellee was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia. She filed a motion to suppress the evidence seized in the brown paper bag, and a hearing on the motion was held on March 15, 1994. On March 17, 1994, the suppression court granted the motion, and this appeal followed.

In conformity with the dictates of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), the Commonwealth has certified that the suppression court's order terminates or substantially handicaps its prosecution of appellee. Accordingly, we conclude that the present appeal is properly before us and address the merits.

Our standard for reviewing the suppression of evidence is well established. In Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990), we stated:

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court 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. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court's factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986).

The suppression court concluded that police were powerless to seize the brown paper bag appellee concealed outside the window and therefore, suppressed its contents. For the reasons which follow, we are constrained to disagree and reverse.

The sole question presented in this case is whether, under all of the circumstances known to police at the time, probable cause existed to seize the brown paper bag.

Probable cause is a flexible, common-sense standard. As the Supreme Court in Texas v. Brown, [460 U.S. 730, [741,] 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) ] commented:

It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," ... that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, non-technical" probability that incriminating evidence is involved is all that is required.

Commonwealth v. Kendrick, 340 Pa.Super. 563, 570-71, 490 A.2d 923, 927 (1985) (citations omitted).

Sharon Robinson had provided lawful consent to the officers to look through her house. N.T., 3/15/94, at 29, 47. The circumstances known to police at the time are as follows: Police did not have a photograph of Keith Robinson and knew of no identifying characteristics. They knew only that Keith Robinson was a black male and that he was to be arrested for selling cocaine. Id. at 28. When the teenage black male fled up the stairs upon seeing police, police had no idea whether he was Keith Robinson. Upon hearing the bathroom window open behind the closed door, police were unaware whether Keith Robinson was inside, trying to flee the premises. Thus, they were permitted lawfully to open the bathroom door to search for Keith. At that point, the officers in the house learned that the occupant of the bathroom, who appeared to be female, had secreted a paper bag outside of the house on the window ledge. Thus, police were confronted by two options: one, ignore the bag and do nothing, thereby creating a risk that contraband or a weapon would go undetected, or two, retrieve the bag, feel its contents, and if further inquiry was justified, open the bag to view its contents. Based upon the circumstances, we conclude that police reasonably were justified in picking up the bag and feeling it.

Detective Fox described his thought process at the time he observed the bag on the ledge.

I went to the window, opened up the window. I observed the brown bag on the window--just outside the window on the sill. I reached for it and picked it up and felt that it was fairly heavy in weight. And in touching it I could feel like a firm substance inside. It wasn't really hard like a metal object or a brick or a rock of some type, but it was firm and kind of crumbly. It was my opinion at that time that it was narcotics inside.

Id. at 32-33. The defense previously had stipulated to Detective Fox's expertise in the area of narcotics investigation. Id. at 26. Moreover, it is firmly established in federal and Pennsylvania law that an officer's sense of touch can, as here, provide the facts necessary to establish probable cause. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993). Once Detective Fox was able to feel the contents of the brown bag and determine, through his extensive experience, that it likely contained narcotics, he was justified in effectuating a full seizure of the bag and in examining its contents. ²

In his treatise on the Fourth Amendment, Professor Wayne LaFave discusses the experience and expertise of an officer in the determination of probable cause. LaFave emphasizes, through reference to United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), People v. Symmonds, 18 Ill.App.3d 587, 310 N.E.2d 208 (1974), and United States v. Davis, 458 F.2d 819 (D.C.Cir.1972):

[W]hat constitutes "probable cause" for searches and seizures must be determined from the standpoint of the officer, with his skills and knowledge, rather than from the standpoint of an average citizen under similar circumstances. That is, probable cause "is to be viewed from the vantage point of a prudent, reasonable, cautious police officer.... guided by his experience and training." The Supreme Court has made it clear that the expertise and experience of the officer are to be taken into account in applying the Fourth Amendment probable cause test. This is as it should be, for there "would be little merit in securing able, trained men to guard the public peace" if their actions were to be "measured by what might be probable cause to an untrained civilian".

W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 570-71 (2d ed. 1987). Pennsylvania law, likewise, focuses upon the experience of police officers in determining the existence of probable cause.

[P]robable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to...