No. 489 April Term, 1977, Appeal from the Order entered January 11, 1977, by the Court of Common Pleas of Allegheny County, Criminal Division at No. CC 7608148A.
Charles W. Johns, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.
Bruce A. Carsia, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, files a dissenting opinion in which Spaeth, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
Appellee was charged with possession and possession with intent to deliver a controlled substance,*fn1 and criminal conspiracy.*fn2
This is a Commonwealth appeal from the lower court's order granting a request for suppression made by appellee and a co-defendant.*fn3 The Commonwealth seeks to justify the search of appellee on two theories: (1) the police had probable cause to conduct the search; and (2) the police had probable cause to arrest, thereby validating the search incident thereto. We find the lower court's order in error, and therefore reverse.
The facts material to our disposition are as follows. On October 8, 1976, at approximately 10:30 p. m., Officer James Holliday of the Pittsburgh Police received a telephone call from a confidential informant who stated that there were three individuals standing in front of Anita's Bar, located in the 2200 block of Centre Avenue. The informant described the individuals as one Black male who was wearing a red jacket and glasses, another Black male, approximately six feet tall, who was wearing a brown jacket and gray slacks, and a Black female, who was heavy set and was wearing a green slacks suit. The informant said he was in the area and had observed the trio engage in drug sales. He also said the activity was taking place at the time of the call. Officer Holliday and his partner, both plain clothes officers, proceeded to the area. They observed three individuals matching the descriptions given by the informant. A twenty to twenty-five minute surveillance was conducted, during which the officers observed what appeared to be two drug passes. As the police car proceeded to pass the three a second time, the trio began walking away. The officers followed, and with the help of a back-up unit, subsequently stopped the trio and took them into custody. When appellee was searched at the Public Safety Building, sixteen and one-half spoons of heroin were found on her person.
The lower court found that the informant's reliability was not sufficiently established and that there was no probable cause based upon the informant's tip and the police surveillance. Thus, the court held that the arrest without a warrant was illegal, as was the search incident thereto.
It is axiomatic that all arrests and searches, whether with or without a warrant, must be based upon probable cause. The standard for determining probable cause is the same for both arrests and searches. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Harmes, 255 Pa. Super. 147, 386 A.2d 551 (1978). In Commonwealth v. Jackson, 459 Pa. 669, 673-74, 331 A.2d 189, 191 (1975), our supreme court stated that:
"In determining the presence of probable cause '[t]he crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.' ...