Commonwealth v. Norwood
| Decision Date | 23 May 1974 |
| Citation | 456 Pa. 330,319 A.2d 908 |
| Parties | COMMONWEALTH of Pennsylvania v. Wayne NORWOOD, Appellant. |
| Court | Pennsylvania Supreme Court |
J. W. Packel, Vincent J. Ziccardi, Defender Jonathan Miller, Chief, Appeals Div., Defender Assn. of Philadelphia, Andrea Levin, Asst. Defender, A. F. Johnson Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., L. A. Perez, Jr., Philadelphia, John H. Isom, Asst Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., for Law, F. Emmett Fitzpatrick, Dist. Atty., James T. Ranney, Asst. Dist. Atty., Asst. Chief, Appeals Div., for appellee.
Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appellant Wayne Norwood was convicted of possession of narcotic drugs and sentenced to one year probation. The Superior Court affirmed, Per curiam, Commonwealth v. Norwood, 221 Pa.Super. 714, 288 A.2d 826 (1972), and we granted allocatur.
The sole issue presented by this appeal is whether the lower court erred in denying appellant's pretrial motion to suppress evidence, and in permitting such evidence to be introduced at trial. Appellant claims that the evidence was obtained as the result of a search incident to an unconstitutional arrest, thereby violating his Fourth and Fourteenth Amendment rights.
The evidence at the suppression hearing consisted solely of testimony by Officer Carl Jackson, the arresting officer. Officer Jackson stated that, at about 1:30 P.M. on December 10, 1970, he was informed that one Bo Baines would be selling drugs in the 200 block of S. 60th Street, Philadelphia. The informant had given him information on 'about three' prior occasions leading to two arrests. Officer Jackson and his partner went to the location in question and observed 'five to six Negro males, known to me as users of drugs' from a distance of twenty-five feet. At about 2:00 P.M., they saw Baines walking north on 60th Street toward the group. One of them, the appellant, approached Baines and passed what appeared to be currency to him. Baines moved his hand, which had been cupped, toward the appellant, and the appellant thrust his hand into his pocket.
From these facts, Officer Jackson concluded that a drug transaction had taken place. He approached the appellant, identified himself, and asked the appellant to remove whatever he had put in his pocket. Appellant handed the officer one glazed packet of a white powder later identified as heroin.
In reviewing a warrantless arrest, we must determine whether the facts and circumstances within the knowledge of the officer at the time, 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. Garvin, 448 Pa. 258, 262, 293 A.2d 33 (1972); Commonwealth v. Bishop, 425 Pa. 175, 181, 228 A.2d 661, 664--665 (1967).
'The standards applicable to the . . . officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment.'
Whitely v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). See also, Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Garvin, Supra.
Appellant primarily challenges the sufficiency of the informant's tip to the effect that Baines would be selling drugs. We need not decide whether this tip, standing alone, would meet the requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1959) a Nd aguilar V. texas, 378 U.S. 108, 84 s.ct. 1509, 12 l.ed.2d 723 (1964), because the arresting officer in this case gained additional crucial information from his personal observations prior to the arrest of appellant. [1]
The officer saw a group of men whom he had previously encountered in connection with drug violations. He saw a man whom he personally knew to be a drug pusher approach the group. The appellant then engaged in a surreptitious exchange with that pusher, and the pusher fled at the approach of the police. This information strongly reinforces the tip to the effect that the pusher would be in a given place at a given time selling drugs. See, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Frisby, 451 Pa. 16, 19, 301 A.2d 610 (1973).
(Citations omitted).
United States v. Davis, 147 U.S.App.D.C. 400, 458 F.2d 819, 821 (1972). In our view, Officer Jackson had probable cause to believe that a drug sale had occurred. Therefore, the arrest and search incident thereto were legal.
The judgment of sentence is affirmed.
JONES, C.J., did not participate in the consideration or decision of this case.
I must dissent because there clearly was no probable cause to arrest the appellant. The prosecution relies on (1) an informer's tip and (2) the arresting officer's personal observations. Clearly, neither of these factors in this case, considered together or separately, were sufficient to establish probable cause. An informer's tip must meet a two-prong test. The facts must support (1) an inference that the informer was generally trustworthy and (2) an inference that the informer obtained the information in a reliable way. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 168, 84 S.Ct. 1509, 12 L.Ed.2d 733 (1964).
In this case, the record is Absolutely silent as to the second prong. There is Nothing to indicate in what way the informer received his information. In Commonwealth v. Smith, 453 Pa. 326, 309 A.2d 413 (1973), the informer told the police that while he was drinking in a bar with two Negro males, he 'found out' that they had narcotics in their possession. The police went to the bar and in spite of the fact that the informer's tip was confirmed, we reversed because the informer's tip was clearly defective since there were no facts disclosing how the informer obtained his information. The Aguilar-Spinelli test required that the tip in Smith be ignored in determining probable cause. The informer's tip in this case is defective for the same reason and must likewise be ignored. It does not meet the second prong of the Aguilar-Spinelli test.
Moreover, the informer's tip in this case must be disregarded because it also fails to meet the other half of the Aguilar-Spinelli test. There must be facts to establish that The informer was reliable. Such facts do not exist in this case. The facts relied on to establish the informer's reliability came from the arresting officer's testimony. He first said that he had been given information approximately three times from the same informer and the information received had led to two or three arrests. Later, the officer testified that he had received information Once or twice which had led to arrests but admitted that as yet no indictments or convictions had resulted. Such facts are totally insufficient to establish the trustworthiness of the informer. The only fact that the officer was certain about was One arrest which had not yet resulted in indictment or conviction. Trustworthiness of an informer cannot be established on such minimal facts about an unidentified informer.
There is an additional problem in this appeal concerning the informer's trustworthiness. Faced with such minimal facts from the arresting officer, defense counsel attempted to cross-examine the officer about the names of those arrested, but was not allowed to do so. This ruling was directly in violation of our decision in Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1972).
The informer's tip in this case must be totally disregarded. It does not meet either of the two-prongs of the test required by Aguilar and Spinelli. Furthermore, defense counsel was improperly curtailed in the cross-examination of the arresting officer.
The majority cites Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as holding that a tip from an unreliable informer may, nonetheless, be corroborated by police observation. This is a gross distortion of Draper. In Draper, the informer was an employee of the police identified by name, and his reliability was clearly established. The only question in Draper was whether the information was obtained in a reliable way. The identified informer gave very detailed information to the police about the defendant. Such detailed information, when Corroborated down to the last minute detail by police observation, allowed an inference that the reliable informer had obtained his information in a reliable way. We have no...
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