Commonwealth v. Dunlap

846 A.2d 674, 2004 Pa. Super. 78, 2004 Pa. Super. LEXIS 275
Superior Court of Pennsylvania·Decided March 24, 2004·Published·Cited by 14 cases

Opinions

OPINION BY

KLEIN, J.:

¶ 1 This appeal presents the issue of whether there was probable cause to search appellant Nathan Dunlap, who was found in possession of illegal drugs. The matter was tried before Judge Wendy Pew in the Philadelphia Municipal Court, who found him guilty. Dunlap filed a petition for a writ of certiorari in the common pleas court, and Judge Joyce S. Keane affirmed the guilty verdict and judgment of sentence. The sole issue before Judge Keane was whether Judge Pew erred in denying the motion to suppress evidence at the municipal court proceedings. Dunlap has raised the same issue in this appeal. We affirm Judge Pew’s denial of the motion to suppress and Judge Keane’s denial of the writ of ceHiorari.

¶2 Despite Dunlap’s arguments to the contrary, Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995), does not require reversal. In Banks, the Pennsylvania Supreme Court 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. 658 A.2d at 753.

¶ 3 The facts in this case present a stronger case for finding probable cause than those in Banks. The key differences are:

(a) an experienced narcotics officer makes the observations;
(b) 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
(c) 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.

¶ 4 We also reaffirm our decision in Commonwealth v. Nobalez, 805 A.2d 598 (Pa.Super.2002), appeal denied 575 Pa. 692, 835 A.2d 709 (2003), and Commonwealth v. Stroud, 699 A.2d 1305 (Pa.Super.1997).

¶ 5 The evidence in this case, as testified to by Officer Devlin of the Philadelphia Police Department, was that on May 4, 2001, at about 10:55 a.m., he and his partner were working in plainclothes surveillance at 2700 North Warnock Street in Philadelphia, which is at the corner of Warnock and Somerset Streets. Devlin observed a man standing at that same corner. He saw Dunlap approach the man, engage in a brief conversation, and then exchange money with the man and receive “small objects” in return. Dunlap walked away. Dunlap’s description was sent out, and another police officer stopped him and [676] recovered three packets that tests showed contained crack cocaine.

¶ 6 At the time of the surveillance, Dev-lin had been a police officer for almost five years and a member of the drug strike force for nine months. Devlin had participated in “about fifteen or twenty” narcotics arrests in that area. He described 2700 North Warnock as a residential area with a high incidence of drugs and crime. Based on his experience and knowledge, he believed that what he had witnessed was a narcotics transaction.

¶ 7 It is true that the question of whether probable cause exists in given circumstances is so fact-sensitive that it is difficult to extrapolate from other cases. Our review on appeal is limited to only the Commonwealth’s evidence, although in this case, there was no evidence presented by the defendant. Where the record supports the court’s findings, we are bound by them and may reverse only if the legal conclusions are erroneous. Commonwealth v. Colon, 777 A.2d 1097 (Pa.Super.2001). As to the factors to be considered, the Colon court considered the factors suggested in Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973):

“All of the detailed facts and circumstances must be considered. 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.” ^ }Js
It is difficult to isolate any one fact or circumstance and assign to it a given weight. If any one of the facts and circumstances, which we have detailed, were missing, the necessary conclusion of probable cause might not be allowable. Every commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause for an arrest.

777 A.2d at 1101 (quoting Lawson, 309 A.2d at 394).

¶ 8 The Lawson factors, though specific, carry different relative weight and importance depending on the circumstances of a given case. While recognizing that the facts of this case place it somewhere between the Supreme Court’s rulings in Banks and Lawson and our decisions in Nobalez and Stroud, the circumstances in this case are closer to the latter cases than the former.

¶ 9 We also believe the trial judge permissibly accepted Officer Devlin’s characterization of 2700 North Warnock as a residential area with a high incidence of drugs and crime. We hesitate to second-guess trial judges when they make .such fact-intensive determinations since they are in a far better position to assess the credibility of the witnesses.

¶ 10 Here, although the officer had only been on the drug strike force for nine months, he had been a police officer for almost five years. Therefore, he combined specialized drug training with several years of beat work, which frequently deals with drug transactions. While this officer himself only participated in fifteen to twenty arrests in this area, the trial court was entitled to credit Officer Devlin’s assertion that this was a high drug trafficking area.

¶ 11 These facts are similar to those in Nobalez, where we also found the arresting officer possessed probable cause in light of his personal knowledge and professional experience. They are also similar to Stroud. In that case, we found probable cause where an experienced narcotics offi[677] cer, using binoculars, twice observed the defendant, on a well-lit corner at night, exchange small objects retrieved from his shoe for cash. As in Stroud and Nobalez, the additional factors take this case out from under Banks’ shadow.

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Commonwealth v. Dunlap, 846 A.2d 674, 2004 Pa. Super. 78, 2004 Pa. Super. LEXIS 275 (Pa. Ct. App. 2004).

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