Com. v. Stroud

• Decision Date: 26 August 1997
• Citation: 699 A.2d 1305
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Edgar STROUD, Appellee.
• Court: Pennsylvania Superior Court

Page 1305

699 A.2d 1305

COMMONWEALTH of Pennsylvania, Appellant, v. Edgar STROUD, Appellee.

Superior Court of Pennsylvania.

Argued May 14, 1997.

Filed Aug. 26, 1997.

Lawrence J. Goode, Philadelphia, for Commonwealth, Appellant.

Joseph C. Santaguida, Philadelphia, for Appellee.

Before BECK and HUDOCK, JJ., and CERCONE, P.J.E.

HUDOCK, Judge:

In this appeal the Commonwealth asserts the trial court erred in granting Appellee's motion to suppress evidence. ¹ We affirm in part and reverse and remand in part.

The standard of review employed by an appellate court when reviewing the grant of a suppression motion has been summarized by our Supreme Court:

We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986). If so, we are bound by those findings. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985). Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, 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. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

Commonwealth v. DeWitt, 530 Pa. 299, 301-02, 608 A.2d 1030, 1031 (1992) (footnote omitted). Moreover, if the evidence when so viewed supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusions drawn from those findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 516-18, 513 A.2d 1041, 1042 (1986).

Based upon the testimony presented at the suppression hearing, the court made factual findings which may be summarized as follows: On March 15, 1995, at about 7:20 p.m., Police Officer Joseph Santomieri, as a result of personal knowledge and information from neighbors that drugs were being sold in the 5600 block of Nelson Street, was conducting a surveillance of the block from an alley. During the course of this surveillance, Officer Santomieri observed Appellee, through binoculars at a distance of approximately forty feet. Appellee was standing on the east side of Nelson Street engaged in a conversation with two males who were standing on the opposite side of the street. A third male approached Appellee and engaged him in a conversation. The male handed Appellee U.S. currency, and Appellee took an object from his right shoe and handed it to the other male, who then turned and walked away. Officer Santomieri radioed his observations to his back-up team, which included Officers Robert Stott and Michael Kopecki.

A minute later Appellee went to a blue Oldsmobile which was parked on the west side of Nelson Street, opened the trunk with a key, and removed a brown paper bag. He took a clear plastic bag from the paper bag and removed from it objects which he put in his right shoe. He returned the plastic bag to the brown paper bag, placed the brown bag back into the trunk, closed the lid, remained standing in the street, and resumed his conversation with the males with whom he had previously been talking. About one minute later, another male approached Appellee, handed him currency and received from Appellee an object which he had removed from his shoe. Officer Santomieri radioed his back-up concerning what he had observed and asked them to come to his location.

Officer Santomieri could not identify the objects that Appellee had removed from his shoe and had handed to the two males or the objects which he removed from the plastic bag. When asked to describe the objects with as much detail as he could, he responded that the objects were so small that Appellee held them between his fingers and that Appellee's fingers were approximately a quarter of an inch apart.

After the second exchange, Appellee began walking north on Nelson Street. Officer Robert Stott, who was driving to Officer Santomieri's location, arrested Appellee and brought him back to Officer Santomieri, who identified him. Appellee was placed inside Officer Stott's vehicle. Officer Kopecki went to the Oldsmobile and returned with the brown paper bag. At the time of the hearing, Officer Santomieri had been a police officer for 23 1/2 years, and the last 8 1/2 years as a narcotics officer. Officer Santomieri testified that he knew the area to be a "high drug location" and that he believed that he had observed two drug transactions and, based on his experience, he believed that the small objects which were being passed were drug vials. N.T., 3/26/96, at 17.

Officer Stott testified that Officer Santomieri had radioed information to him concerning the alleged drug sales. He testified that he arrested Appellee who had three drug vials in his right shoe. Officer Kopecki's testimony was submitted by stipulation: Officer Santomieri was present when Officer Stott arrested Appellee and recovered the three vials and keys to the Oldsmobile. As a result of the information he had received from Officer Santomieri, he opened the trunk with the keys and looked behind the left rear taillight. He found a brown paper bag which contained two clear plastic bags. One of the bags contained forty clear plastic vials containing an off-white chunky substance. The other plastic bag contained forty vials containing a similar substance.

Appellee's cousin, Michael Keith Green, testified to a scenario which was completely at odds with the version of the three officers. The suppression court did not find his testimony credible. See Opinion, 7/3/96, at 1-4.

Our own review of the suppression transcript supports these factual findings. We add only that Officer Santomieri testified Appellee had crossed the street to talk to the two males but then walked back to his original position as the first male approached him. Given these facts, the suppression court determined that it did not have to determine whether exigent circumstances existed to support the search of the automobile's trunk because it found that the police lacked probable cause to arrest Appellee. In so concluding, the suppression court found our Supreme Court's recent decision in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995), to be so factually similar that it required this conclusion, and thus the suppression of the evidence seized. We do not find Banks to be controlling and further conclude that sufficient probable cause existed to place Appellee under arrest. ²

When determining whether probable cause to arrest without a warrant exists, a totality of the circumstances test is employed. Banks, 658 A.2d at 752. The reviewing court must consider all factors presented to the officer and their total effect, each factor should not be viewed in isolation. Commonwealth v. Burnside, 425 Pa.Super 425, 430, 625 A.2d 678, 681 (1993) (citations omitted). In addition, probable cause does not deal with certainties--"[p]robable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely inference." Id. (emphasis omitted) Finally, as this Court has recently noted, the totality of the circumstances must be viewed as seen through the eyes of an experienced, trained police officer since, "[w]hen evaluating the totality of circumstances comprising reasonable suspicion or probable cause, [a reviewing court] will not ignore the ability of experienced police officers to draw deductions and inferences which other persons might not make." In the Interest of B.C., 453 Pa.Super. 294, 303-04, 683 A.2d 919, 924 (1996).

In Banks, supra, at approximately 1:00 p.m., a police officer in a marked police car saw the appellant, who was standing on a street corner in Philadelphia, hand an object to an unknown female who, in turn, gave the appellant an undetermined amount of cash. As the police cruiser approached the appellant, he fled but was soon captured. As the result of a full arrest search, a bag containing cocaine was found on his person. In concluding that probable cause to effectuate a warrantless arrest did not exist, the high court reasoned:

In Commonwealth v. Lawson, 454 Pa. 23, 29, 309 A.2d 391, 394 (1973), we stated: "Every commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause to arrest." See also Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978). Well recognized additional factors giving rise to probable cause were not present here. This is not a case where a trained narcotics officer observed either drugs or containers commonly known to hold drugs being exchanged. See Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). This is not a case where the police observed multiple, complex, suspicious transactions. See Lawson, supra. And this is not a case in which the police officer was responding to a citizen's complaint or to an informant's tip. See Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993). This is simply a case where a police officer chanced upon a single, isolated exchange of currency for some unidentified item or items, taking place on a public street corner at midday, and where appellant fled when approached by the officer. We believe that the fact of flight, under the circumstances presented, did not constitute a sufficient additional factor to give rise to probable cause.

Under the Fourth Amendment, we have long held that flight alone does not constitute...