Commonwealth v. Dunlap

941 A.2d 671, 596 Pa. 147, 2007 Pa. LEXIS 2932
Supreme Court of Pennsylvania·Decided December 28, 2007·No. 33 EAP 2006·Published·Cited by 28 cases

Opinions

OPINION

Justice BALDWIN.

In this case, a trained police officer, working in what the officer termed a high-crime neighborhood, observed Appellant and another individual exchange currency for an unknown object without seeing any other suspicious activity. Shortly thereafter, Appellant was arrested and searched without a warrant. As it turned out, Appellant was in physical possession of crack-cocaine. He was thereafter charged with various narcotics-related offenses. Prior to trial, Appellant moved to suppress the seized narcotics. The motion was denied by the trial court and affirmed by the Superior Court, which found the observing officer’s training and experience particularly relevant in determining that probable cause existed to support the seizure. We granted allocatur to determine whether the Superior Court’s decision was inconsistent with our decision in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). We reaffirm Banks and hold that probable cause was lacking in the instant case, in violation of the Fourth Amendment to the United States Constitution. For the reasons explained in greater detail below, we reverse the conviction.

On May 4, 2001, Officer Devlin of the Philadelphia Police Department and his partner were conducting plainclothes surveillance at 2700 North Warnock Street in North Philadelphia, which is at the corner of Warnock and Somerset Streets. Officer Devlin watched as Nathan Dunlap (Appellant) ap[150] proached another individual standing on that same corner. After approaching, Appellant engaged in a brief conversation with the other man, handed him money, and was, in return, handed “small objects.” Commonwealth v. Dunlap, 846 A.2d 674, 675 (Pa.Super.2004). After Appellant walked away, Officer Devlin broadcasted Appellant’s description over police radio. Officer Richard Stein apprehended Appellant a short distance from the Warnock and Somerset corner. A search of Appellant revealed three packets that contained crack-cocaine.

Officer Devlin testified that, at the time of the subject citizen-police encounter, he had been a police officer for almost five years. Further, he had been a member of the drug strike force for nine months. Officer Devlin testified that he had conducted “about fifteen to twenty” narcotics arrests in the general geographic area. According to him, North Warnock is a residential area that suffers from a high rate of nefarious activity, including drug crimes. Based on his experience and his characterization of the neighborhood, Officer Devlin believed that the transaction he witnessed involved illegal drugs.

Prior to trial, Appellant filed a motion to suppress the evidence, alleging that the police lacked probable cause to conduct the warrantless arrest and subsequent search. The trial court heard Officer Devlin’s testimony. The court denied the motion. Immediately thereafter, Appellant was convicted of possession of a controlled substance in the Philadelphia Municipal Court. 35 P.S. § 780-113(a)(16). Appellant then petitioned for a writ of certiorari in the Court of Common Pleas of Philadelphia County, arguing that the Municipal Court erred in denying his motion to suppress. The Court of Common Pleas rejected Appellant’s argument and affirmed the verdict and judgment of sentence. Commonwealth v. Dunlap, No. 01-913326, slip op. at 2-3 (Ct. of Com. Pleas of Philadelphia Cty. Jan. 2, 2002). Appellant timely appealed to the Superior Court. In a published opinion, the Superior Court, sitting en banc, affirmed in a five to four decision, finding that probable cause existed to support the warrantless arrest and subsequent search. Dunlap, 846 A.2d at 675.

[151] Although the court acknowledged that this Court’s decision in Banks held that “absent other factors, the mere fact that a regular police officer sees a transaction on the street in which money passes from one person to the other and some unknown objects are given in return does not amount to probable cause to arrest for a drug transaction, even where the suspect has fled on seeing the police,” Dunlap, 846 A.2d at 675 (citing Banks, 540 Pa. at 455, 658 A.2d at 753), it found the instant facts distinguishable. The distinctions between the instant matter and Banks which the Superior Court noted were: (1) “an experienced narcotics officer makes the observations;” (2) “the transaction takes place in what the officer knows from personal, professional experience as well as reputation to be a high drug-crime area;” and (3) “based on his or her training, experience as an officer and knowledge of the area, the officer reasonably concludes that he or she probably witnessed a drug transaction.” Dunlap, 846 A.2d at 675. Based on these “key differences,” the majority concluded that probable cause existed to support the police action.

Judge Johnson, joined by three other judges, dissented, taking issue with the majority’s use of police training and experience as a factor in determining the existence of probable cause. The dissent relied on Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973), where this Court enunciated a non-exhaustive list of factors for courts to examine in assessing whether probable cause existed in situations where police observe a commercial street transaction of an unknown item. In the view of the dissenters, an officer’s experience is not a factor to be included in the probable cause formula, but rather it serves only as a “lens through which to view [the Lawson ] factors.” Dunlap, 846 A.2d at 679 (emphasis added). Indeed, the dissent would find that “the officer’s experience governs the manner of examination called for by Lawson, but cannot of itself rise to probable cause. Thus, it is the totality of the circumstances, especially those six factors identified in Lawson, as perceived by an officer (not a layperson) that we must consider.” Id. (emphasis in original). Utilizing this frame[152] work, the dissent, citing Banks, would have found probable cause to be lacking.

Free access — add to your briefcase to read the full text and ask questions with AI

Commonwealth v. Dunlap, 941 A.2d 671, 596 Pa. 147, 2007 Pa. LEXIS 2932 (Pa. 2007).

941 A.2d 671 (Commonwealth v. Dunlap) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Com. v. Alvarez-Rodriguez, W.
Superior Court of Pennsylvania, 2025
Com. v. Floyd, D.
2024 Pa. Super. 44 (Superior Court of Pennsylvania, 2024)
Com. v. McBrearty, R.
Superior Court of Pennsylvania, 2023
Com. v. Jones, I.
Superior Court of Pennsylvania, 2014
Com. v. Roscoe, F.
Superior Court of Pennsylvania, 2014
Commonwealth v. Delvalle
74 A.3d 1081 (Superior Court of Pennsylvania, 2013)
Commonwealth v. Whitlock
69 A.3d 635 (Superior Court of Pennsylvania, 2013)
Donaldson v. State
7 A.3d 84 (Court of Appeals of Maryland, 2010)
Commonwealth v. Daniels
999 A.2d 590 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Dixon
997 A.2d 368 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Thompson
985 A.2d 928 (Supreme Court of Pennsylvania, 2009)
Williams v. State
981 A.2d 46 (Court of Special Appeals of Maryland, 2009)
Commonwealth v. Smith
979 A.2d 913 (Superior Court of Pennsylvania, 2009)
Commonwealth v. Wormley
949 A.2d 946 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Kelly
950 A.2d 262 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Grahame
947 A.2d 762 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Martellacci
4 Pa. D. & C.5th 305 (Bucks County Court of Common Pleas, 2008)
Commonwealth v. McKenzie
941 A.2d 1258 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Bivens
941 A.2d 1258 (Supreme Court of Pennsylvania, 2008)
In the Interest of S.R.
941 A.2d 671 (Supreme Court of Pennsylvania, 2007)