Com. v. Thompson

985 A.2d 928

COMMONWEALTH of Pennsylvania, Appellee v. Percy THOMPSON, Appellant.

No. 33 EAP 2008

Supreme Court of Pennsylvania.

Argued April 14, 2009.

Decided December 29, 2009.

Lester Roy Zipris, Ellen T. Greenlee, Karl Baker, Defender Association of Philadelphia, Philadelphia, for Percy Thompson.

Hugh J. Burns, Jr., Philadelphia District Attorney's Office, Philadelphia, Mary Huber, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Justice GREENSPAN.

Appellant Percy Thompson challenges the Superior Court's order affirming his judgment of sentence for possession of a controlled substance. We affirm.

On January 21, 2005, in the evening, Philadelphia Police Officer Orlando Ortiz was on duty in the 2400 block of Leithgow Street. Officer Ortiz knew the neighborhood as a high crime area in which narcotics, and specifically heroin, regularly were sold. The area was designated by the Philadelphia Police Department as an "Operation Safe Streets" neighborhood. Officer Ortiz, a nine-year veteran of the police force, and his partner, Officer Correa, were in plainclothes and driving an unmarked vehicle. Officer Ortiz saw a car parked by the sidewalk and observed Appellant standing in the street by the driver's side door. Officer Ortiz watched Appellant hand the male driver some money and saw the driver give Appellant a small object in return. Based on what he saw on the street and what he knew, including the fact that he had made several hundred narcotics arrests of this very type, Officer Ortiz believed the men were engaged in a drug transaction. Officer Ortiz stopped Appellant and recovered from his pocket a packet of heroin. Officer Correa approached the driver and ultimately recovered two packets of heroin from his hand and an additional 14 packets from his person.

Appellant was charged with possession of a controlled substance. He filed a pre-trial motion to suppress the heroin, claiming that police lacked the probable cause necessary to support the search and seizure. Philadelphia Municipal Court Judge James M. DeLeon denied the motion, found Appellant guilty after a stipulated trial, and imposed a 12-month probationary sentence. Appellant filed a petition for writ of certiorari in the Philadelphia Court of Common Pleas. Judge Susan I. Schulman denied the writ. Appellant filed an appeal with the Superior Court raising the same single claim regarding probable cause. The Superior Court panel affirmed based on its then-recent opinion in Commonwealth v. Dunlap, 846 A.2d 674 (Pa.Super.2004) (en banc).

This Court granted Appellant's Petition for Allowance of Appeal on the following issues:

1. Whether the initial seizure and immediately ensuing search lacked probable cause and whether the lower courts applied erroneous standards to judge the constitutionality of police conduct.

2. Whether per curiam decisions of this Court specifically citing Commonwealth v. Banks, 658 A.2d 752 (Pa.1995), are precedential and controlling authority.

With respect to the first issue, we are reviewing the trial court's ruling denying Appellant's motion to suppress. "Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. ... [W]e must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007), cert. denied, 552 U.S. 894, 128 S.Ct. 211, 169 L.Ed.2d 158 (2007). Those properly supported facts are binding upon us and we "may reverse only if the legal conclusions drawn therefrom are in error." Id.

The parties agree that police were required to have probable cause in order to stop, seize, and search Appellant in the manner they did.¹ Thus, we apply the well-established legal standard that governs this matter. Probable cause is made out when "the facts and circumstances which are within the knowledge of the officer at the time of the arrest, 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. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991). The question we ask is not whether the officer's belief was "correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Rather, we require only a "probability, and not a prima facie showing, of criminal activity." Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation omitted) (emphasis supplied). In determining whether probable cause exists, we apply a totality of the circumstances test. Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248, 1252 (1999) (relying on Gates, supra).

This Court frequently has addressed the particular issues related to law enforcement's observations of drug trafficking on the street. Appellant insists that the long-standing "observed transaction" jurisprudence in this Commonwealth mandates reversal here. Among other cases, Appellant relies specifically on this Court's holdings in Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007), cert. denied, ___ U.S. ___, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008), Banks, supra, and Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973). According to Appellant, the Superior Court's ruling in this case "defies that long line of controlling precedent" which holds that "a single commercial transaction on a public street, without more, does not give rise to probable cause." Appellant's Brief at 7.

The Commonwealth, on the other hand, asserts that this Court's jurisprudence supports the Superior Court's decision here. According to the Commonwealth, the facts present more than the mere observation of a simple commercial transaction. Further, argues the Commonwealth, this case presents "an opportunity to clarify that when an officer who is familiar with drug sales sees what he recognizes as a drug sale, at a specific drug-selling location, he has probable cause to arrest the parties to the transaction." Appellee's Brief at 5.

We consider, in their order of decision, the cases on which Appellant relies. In Lawson, police observed the appellant as he stood on the street and received currency from individuals to whom he handed small objects that he retrieved from his wife. After observing three such transactions, police arrested the couple, who ultimately faced conspiracy and narcotics sales charges. In response to a claim that police lacked probable cause to arrest, the Lawson Court noted that "all of the detailed facts and circumstances must be considered." The Lawson Court concluded that those circumstances amply supported probable cause. 309 A.2d at 394.

The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the small items were kept by one of the sellers is important; the movements and manners of the parties are important. Considering the facts and circumstances in their totality, we conclude that the officers acted as prudent men in believing that some type of contraband was being sold.

Id.²

In Banks, decided over twenty years after Lawson, this Court considered whether a police officer's "chanced" observation of a "single, isolated exchange of some currency for some unidentified item or items, taking place on a public street at midday," was sufficient to establish probable cause where the suspect also fled from police. 658 A.2d at 753. The Banks Court held that such circumstances fell "narrowly short" of probable cause. Id. While the Banks opinion gave few details on the specific circumstances of that case, the majority noted that "well recognized additional factors giving rise to probable cause were not present." Id. These included "a case where a trained narcotics officer observed either drugs or containers commonly known to hold drugs ... a case where the police observed multiple, complex, suspicious transactions ... [or] a case in which the police officer was responding to a citizen's complaint or to an informant's tip." Id.

Dunlap is this Court's most recent case on the issue of on-the-street drug trade. In Dunlap, Philadelphia Police Officer Devlin, a five-year veteran of the police force and a nine-month member of the drug strike force, observed the suspect on a Philadelphia street. Officer Devlin, who had previously conducted about fifteen to twenty narcotics arrests in the area, testified that the neighborhood suffered from "a high rate of nefarious activity, including drug crimes." Id. at 675. As Officer Devlin watched, the suspect engaged in a brief conversation with another man to whom he handed money and from whom he received small objects in return. Based on his experience and beliefs, Officer Devlin concluded that he had witnessed a drug transaction and so he arrested the suspect. Cocaine in the suspect's possession led to drug charges and, ultimately, a pre-trial motion to suppress the evidence based on lack of probable cause.

The trial court in Dunlap held that the evidence was sufficient to establish probable cause and the Superior Court agreed. The en banc panel relied on the fact that Officer Devlin was an experienced narcotics officer, as well as the fact that the neighborhood had a reputation as a high drug-crime area.³ Id. at 674 (citation omitted). This Court granted an appeal in order to determine whether the decision comported with Banks.

The majority opinion in Dunlap focused its analysis on the controlling nature of Banks and the "relevance of police training and experience to the probable cause determination." 941 A.2d at 674. The Dunla...