Commonwealth v. Devlin

• Decision Date: 24 March 1972
• Citation: 221 Pa.Super. 175,289 A.2d 237
• Parties: COMMONWEALTH of Pennsylvania v. William E. DEVLIN, Appellant.
• Court: Pennsylvania Superior Court

289 A.2d 237

221 Pa.Super. 175

COMMONWEALTH of Pennsylvania v. William E. DEVLIN, Appellant.

Superior Court of Pennsylvania.

March 24, 1972.

Application for Allocatur Denied May 19, 1972.

John W. Packel, Chief, Appeals Div., Vincent J. Ziccardi Defender, Philadelphia, for appellant.

Milton M. Stein, Asst. Dist. Atty., Chief Appeals Div., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge:

Defendant was convicted, after trial without jury, of the crime of possession of narcotic drugs. He has appealed to this court contending that the refusal of his pre-trial motion to suppress the physical evidence of the drugs was error as that evidence was either the fruit of an illegal arrest made without probable cause or the direct product of a warrantless search made without probable cause.

We do not agree. Admittedly, where defendant's arrest is lawful being based on probable cause, the search incident to that arrest is likewise lawful: Commonwealth v. Friel, 211 Pa.Super. 11, 14, 234 A.2d 22, 23--24. ^[1]

The record in this case supports a finding that the officers acted with probable cause. Officer John Boucher testified that on February 18, 1971, at approximately 5:25 P.M., an informant advised him there was a man in the Pink Squirrel Bar at 1624 Ridge Avenue selling narcotics and that the man had refused to sell him drugs on credit. The informant gave a detailed description of the man as to color, height, and clothes. Officer Boucher and two other police officers went to the Pink Squirrel Bar and there observed the defendant, who fit informant's description in every detail, sitting at the bar. Officer Boucher testified that as they approached, defendant reached into his left hand pocket, so they grabbed his arm and found three bags of a mixture later identified as heroin and quinine hydrochloride, the possession of which constituted the basis of his conviction. ^[2]

Defendant, in contesting the validity of the arrest and the subsequent search, does not raise any issue as to the informant's reliability but questions the sufficiency of the information supplied by him to constitute probable cause. Defendant would interpret the informant's statement that defendant would not sell to him on credit as a refusal by defendant to sell altogether, and thus argues that this refusal reported by informant was more consistent with innocence than with guilt. We cannot agree. The informant's statements, taken in their proper context, signified that the defendant was willing to sell but not willing to sell on credit. Officer Boucher, therefore, properly interpreted the informant's statements to mean defendant was selling drugs. It must be kept in mind that in determining the sufficiency of the statements to warrant a finding of probable cause for the arrest, we do not apply strict evidentiary rules requisite to a finding of defendant's guilt. As so ably stated by Judge Learned Hand, in speaking for the court in U.S. v. Heitner, 149 F.2d 105, 106: 'It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.'

At the time of trial, the defendant must be acquitted if the evidence raises a reasonable doubt of his guilt in the minds of the jurors. At the time of his arrest, however, the officers are dealing only with 'probabilities' of guilt. As stated in Brinegar v. U.S., 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879: 'In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'

That reasoning was applied by our Pennsylvania Supreme Court...