Commonwealth v. Dunlap , 2004 Pa. Super. 78 ( 2004 )

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 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 officer, 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.

¶ 12 Certainly this case is not identical to either Nobalez or Stroud. In this case, the transaction took place in the daytime, the record does not indicate from where Dunlap got the items he gave to the buyer, and nobody fled the scene. And the officer in Nobalez had nine years on the force and three years in the area, and made thirty arrests in the area rather than fifteen to twenty. And in Stroud the officer had more experience and there were two acts. However, none of this means the trial court should have discounted the officer’s testimony that he had an honest belief that he was witnessing a drug deal and that this conclusion was reasonable. Rather, we must view the episode through the lens of a trained and experienced law officer. When we do that, it is apparent that the suppression court properly assessed the testimony and refused the suppression motion.

¶ 13 We recognize that in Banks, the Supreme Court gave force to a statement from Lawson: “Every commercial transaction between citizens on a street corner where unidentified property is involved, does not give rise to probable cause for an arrest.” 658 A.2d at 753. But the Banks Court did not stop there. It then went on to state that an additional factor or factors must be present to constitute probable cause. Id.

¶ 14 In this case, there are two significant, additional factors. First, the testimony came from an experienced officer who had been on the drug strike force for nine months. Second, the transaction took place in a high drug area in which Devlin himself had participated in fifteen to twenty drug arrests. These facts are similar to those found in Nobalez, where we also found the arresting officer possessed probable cause in light of his personal knowledge and professional experience. See also Stroud.

¶ 15 We think the judges below reasonably rejected the alternative that this was merely a person giving change or making a sale of cigarettes or M & M’s or something equally innocuous. The municipal court judge, who had the opportunity to observe the witnesses and judge all of the circumstances, and the common pleas court judge, who affirmed the municipal court judge’s decision, both held that there was probable cause to believe there was a drug transaction. Wfliile recognizing that this is a close case, it was well within the municipal court judge’s discretion to draw the conclusion that in this neighborhood, with these observations, and considering the experience of the police officer, the officers had probable cause to believe that a drug transaction was being carried out.

¶ 16 Dunlap points to three cases where this court found probable cause under similar circumstances, but the Pennsylvania Supreme Court reversed this court’s decision per curiam. Those per curiam reversals are Commonwealth v. Albino, 541 Pa. 424, 664 A.2d 84 (1995), Commonwealth v. Carter, 543 Pa. 510, 673 A.2d 864 (1996), and Commonwealth v. Lopez, 543 Pa. 321, 671 A.2d 224 (1996). However, the orders in those cases are not binding precedent. They do not recite the facts or contexts of the respective cases.

¶ 17 As we explained in Nobalez, the Supreme Court’s per curiam reversals carried nothing more than law-of-the-case effect. Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996); Commonwealth v. Stroud, 699 A.2d 1305, 1308.n. 2 (Pa.Super.1997). In Tilghman, the trial court had granted parole to defendants whose aggregate sentences exceeded two years. The Commonwealth appealed, challenging whether the common pleas court or the parole board had jurisdiction to consider the parole petitions. 673 A.2d at 900-01. In an earlier case, Commonwealth v. Hams, 423 Pa.Super. 190, 620 A.2d 1175 (1993), this court had held that if the aggregate sentences amount to two years or more, jurisdiction lies with the parole board. In a third case, Abraham v. Department of Corrections of Pennsylvania, 150 Pa.Cmwlth. 81, 615 A.2d 814 (1992), aff'd per curiam, 535 Pa. 122, 634 A.2d 214 (1993), the Supreme Court affirmed the Commonwealth Court’s contrary determination in a short, per curiam order that offered no explanation.

¶ 18 The Tilghman defendants contended that without saying so, the Supreme Court’s order in Abraham had overruled this court’s decision in Harris. The Supreme Court disagreed, and held: “[W]e did not sub silentio overrule Harris by our per curiam order of affirmance in Abraham.” Tilghman, 673 A.2d at 905. The Court explained that unless the Court’s order affirms on the basis of the opinion below, the lower tribunal’s opinion is neither approved nor disapproved. The Court simply is disposing of that case only, with no more than law of the case effect. Id. at 904.

¶ 19 Although Tilghman dealt with an affirmance rather than a reversal, its language points the way in this case. In light of the Supreme Court’s explanation, we can see no meaningful distinction between the two dispositions in terms of precedential weight. See also Stroud, 699 A.2d at 1308 n. 2. Therefore, the per curiam reversals do not constrain our decision.

¶20 We conclude that, Banks notwithstanding, there was sufficient probable cause to support the seizure in this case. The trial court and the certiorari court had available Officer Devlin’s testimony that he had seen Dunlap and the other man exchange money for small objects in a neighborhood that Dunlap knew from his own professional experience was a high drug-crime area. As a narcotics officer with five years general experience and nine months’ specialized drug enforcement experience, Officer Devlin concluded that he had observed a drug transaction. There were no commercial vendors or stores in the area, making it unlikely that this was a legitimate transaction. This stands in stark contrast with the officer in Banks, who was described simply as having “experience.” Banks, 658 A.2d at 754 (Castille, J., dissenting). We agree with the lower courts that these factors together were sufficient to provide probable cause.

¶ 21 Judgment of sentence affirmed.

¶ 22 JOHNSON, J., files a Dissenting Opinion which is joined by DEL SOLE, P.J., and MUSMANNO, TODD, JJ.