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Commonwealth v. Smith

August 10, 2009

COMMONWEALTH OF PENNSYLVANIA APPELLANT
v.
JOHN SMITH APPELLEE



Appeal from the Order entered February 5, 2008 In the Court of Common Pleas of Philadelphia County, Criminal No. CP-51-CR-0000953-2007.

The opinion of the court was delivered by: Kelly, J.

BEFORE: STEVENS, KLEIN and KELLY, JJ.

OPINION

¶ 1 The Commonwealth appeals from an order granting a motion to suppress drugs found during a search incident to arrest after undercover narcotics police observed Appellee, John Smith,*fn1 in a suspicious street transaction. The suppression court concluded that the police lacked probable cause to arrest even though a trained, experienced narcotics officer saw Appellee hand over an object from his sock in exchange for money, and leave the area when a third party alerted him to the presence of strangers. We reverse.

¶ 2 On October 25, 2006, at about 2:40 PM, plainclothes narcotics officers Riley and Ricciardi were traveling northbound on 12th Street near Lindley Avenue, in an unmarked vehicle when they observed Appellee, an African-American, accept money from another unidentified African-American male, remove a small unknown item from his sock, and hand it to the other man. (N.T. Motion Hearing, 2/5/08, at 6). The officers got out of their car and walked to an alley at 11th and Lindley, 75 to 100 feet away from Appellee, to set up a surveillance. However, the surveillance was thwarted when an unknown third African American male announced "a white boy just went into the alleyway."*fn2 (Id. at 7). Appellee walked around the 1100 block of Lindley, looked into the alley at the officers through a "breezeway,"-a vacant lot where a house had been torn down-and continued walking. Officer Riley ordered uniformed back-up officers to arrest Appellee. During a search incident to arrest, the officers found nineteen packets containing crack cocaine in Appellee's socks, one clear jar with a green lid containing marijuana in his pants pocket, and $303.

¶ 3 At the suppression hearing, Officer Riley testified that he had been a Philadelphia police officer for thirteen years, eight of them in the Narcotics Strike Force, and had participated in "thousands" of narcotics arrests and surveillances. (Id. at 9). He testified that he had previously conducted fifty to seventy-five surveillances in the area of the incident. (Id. at 10). He further testified that the transaction involving Appellee was identical to numerous exchanges he had previously witnessed on surveillance for narcotics. (Id.). He characterized the neighborhood where Appellee was arrested as "a residential, high crime, very high shooting area... [and] a high drug area" with "[a] lot of hard violence." (Id. at 11).

¶ 4 The court granted the motion to suppress, based on its finding that the arrest lacked probable cause, citing Commonwealth v. Dunlap, 941 A.2d 671 (Pa. 2007), cert. denied, 129 S.Ct. 448 (2008), and Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995). The trial court denied the Commonwealth's motion for reconsideration and this timely appeal followed.*fn3

¶ 5 The Commonwealth raises one question on appeal:

DID THE [SUPPRESSION] COURT ERR IN SUPPRESSING [APPELLEE'S] DRUGS ON THE GROUND THAT THERE WAS NO PROBABLE CAUSE TO ARREST, WHERE [APPELLEE], IN A HIGH DRUG-TRAFFICKING AREA, TOOK ITEMS FROM HIS SOCK AND EXCHANGED THEM FOR CASH IN A MANNER CONSISTENT WITH DRUG EXCHANGES PREVIOUSLY WITNESSED BY A HIGHLY EXPERIENCED OFFICER, A LOOKOUT WARNED [APPELLEE] WHEN POLICE ATTEMPTED TO CONDUCT FURTHER SURVEILLANCE, AND [APPELLEE] BEGAN TO LEAVE IN RESPONSE TO THE WARNING? (Commonwealth's Brief, at 2).

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Williamson, 962 A.2d 1200, 1201 n.4 (Pa. Super. 2008)(quoting Commonwealth v. Boulware, 876 A.2d 440, 442 (Pa. Super. 2005)).

¶ 6 Both the United States and Pennsylvania Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. Amend. IV; Pa. Const. Art. I, § 8.

To be constitutionally valid, an arrest must be based on probable cause. The existence or non-existence of probable cause is determined by the totality of the circumstances. The totality of the circumstances test requires a Court to determine whether 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.

Dunlap, supra 941 A.2d at 674-75 (citations and internal quotation marks omitted). To determine the existence of probable cause, the Supreme Court in Dunlap applied the factors first enunciated ...


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