Com. v. Robbins, J. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOSEPH W. ROBBINS, :
:
Appellee : No. 1886 EDA 2018
Appeal from the Order Entered June 1, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000270-2018
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 06, 2019
The Commonwealth of Pennsylvania appeals from the June 1, 2018
order granting the omnibus motion, inter alia, to suppress evidence, filed by
Joseph W. Robbins (Robbins).1 Upon review, we reverse and remand.
In late 2017, Robbins was arrested and charged with possession of a
controlled substance and possession with the intent to deliver. On February
26, 2018, Robbins filed an omnibus motion seeking to suppress the narcotics
1 The Commonwealth has the right to appeal the trial court’s June 1, 2018
order pursuant to Pa.R.A.P. 311(d), which provides that “[t]he
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.” In this case, the Commonwealth certified in its notice of
appeal that the order granting Robbins’s motion to suppress “terminates or
substantially handicaps the prosecution.” Notice of Appeal, 6/26/2018.
*Retired Senior Judge assigned to the Superior Court.
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recovered by police. Motion to Suppress, 2/26/2018. Specifically, Robbins
asserted that the suppression of evidence was warranted because he was
searched without reasonable suspicion and arrested without probable cause.
Id. at 1. A hearing on Robbins’s motion was held on June 1, 2018. At the
hearing, the Commonwealth offered the testimony of Officer Patrick
Banning. As summarized by the trial court:
[O]n October 25, 2017, at approximately 5:20 p.m.,
[Officer Banning2] set up a plain clothes narcotics surveillance at
the intersection of Jasper and Lippincott Streets. [Officer
Banning testified that this area was a “very high-drug area.”]
Officer Banning further testified that at approximately 5:25 p.m.,
he observed a white female by the name of Alexis Archavalia,
approach a black female by the name of Diamond Gant outside
of 1906-1908 East Lippincott Street. Further, Officer Banning
stated that he observed Archavalia approach Gant outside 1908
East Lippincott Street, Archavalia handed Gant unknown
amounts of United States Currency, Gant then retrieved what
Officer Banning believed to be a blue bundle of heroin from the
front of her shirt, picked an unknown amount of packet(s) from
the alleged bundle, and handed them to Archavalia. Officer
Banning then testified that Archavalia left the area eastbound on
Lippincott and after sending flash information of her description,
another police officer stopped her. Further, Officer Banning
testified one [] packet[,stamped “Jaguar” with a picture of a
jaguar,] of what appeared to be heroin was recovered by the
officer who [stopped Archavalia].
Officer Banning goes on to testify that at 5:30 p.m., he
observed a white male by the name of Gregory Antzak, have a
2
Officer Banning testified that he was currently assigned to the Narcotics
Strike Force, and had been a narcotics officer for approximately eighteen
years. N.T., 6/1/2018, at 6. He further testified that he had participated in
“thousands” of arrests and surveillances. Id. Additionally, throughout his
time on the force, he had become familiar with how drugs are sold,
trafficked, and packaged. Id.
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transaction with Gant in the same manner as previously
described. Again, after Officer Banning sent out a flash with the
description of Antzak, another police officer stopped Antzak
recovering what appeared to be three (3) packets of heroin or
fentanyl [stamped “Jaguar”] along with one (1) container of
what appeared to be crack cocaine. Officer Banning further
testified that at 5:35 p.m., he witnessed another white male, by
the name of Aaron Marinari[,] have a transaction with Gant in
the same way as the other transactions described above.
Marinari was stopped and six [] packets of heroin [stamped
“Jaguar”] were recovered. Immediately after that transaction,
Gant left the area southbound on Jasper Street.
Next, Officer Banning testified that at approximately 5:45
p.m., he observed Gant come back into his view on the west side
of Jasper and Lippincott Streets. Officer Banning stated that he
observed Gant talking with several black females and black
males. Officer Banning further testified that he first saw [a man
later identified as Robbins] at 5:53 p.m., approach Gant on the
west side of Jasper and Lippincott Street[s]. Officer Banning
went on to state that he observed [Robbins] retrieve a white
rectangular object from his person which he believed to be a
rack of heroin. [Robbins] allegedly opened one side of the white
rectangular object and handed what [Officer Banning] believed
to be a bundle or bundles of heroin to Gant, and Gant then
walked eastbound on Lippincott Street.
Finally, Officer Banning testified that he observed Gant
encounter an unknown black male on a bicycle give Gant an
unknown amount of United States Currency in exchange for an
unknown number of packet(s) of what was believed to be heroin.
Following this observation, Officer Banning testified “[a]t that
point Your Honor, I instructed backup officers to come stop and
investigate the unknown black male on the bike who left
eastbound, arrest Gant, and to investigate [Robbins].” While
[Robbins] and Gant were in fact stopped, the unknown black
male left on a bicycle and was never stopped. Additionally,
Officer Banning testified that [Robbins] began to ride a bicycle
eastbound on Lippincott Street as backup officers approached
and at some point was stopped by another police officer.
Trial Court Opinion, 8/28/2018, at 2-3 (citations and formal titles omitted).
Officers searched Robbins and recovered eight bundles of heroin. N.T.,
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6/1/2018, at 14. “Each bundle had 14 clear Ziploc plastic packets, each
containing a blue glassine packet. They were all stamped with the word
‘Jaguar’ and a picture of a jaguar for a total of 112 packets from [Robbins’s]
right jacket pocket.” Id. at 15.
At the conclusion of the hearing, the trial court determined that while
“reasonable suspicion existed” to stop Robbins, the Commonwealth failed to
establish that there was “probable cause to support the arrest.” Id. at 36.
Specifically, the trial court stated that the testimony of “Officer Banning
clearly and unequivocally established reasonable suspicion for the stop, [but]
not probable cause for an immediate arrest.” Id. at 34. Based upon the
foregoing findings, the trial court granted Robbins’s request to suppress the
narcotics recovered by police.
This appeal followed.3 On appeal, the Commonwealth presents one
issue for this Court’s review: “Did the [trial] court err by suppressing
[Robbins’s] contraband where police had probable cause to arrest him after
he supplied a woman who was selling heroin on the street in a high drug
crime area?” Commonwealth’s Brief at 3.
When the Commonwealth appeals from a suppression
order, this Court follows a clearly defined scope and standard of
review. We 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
3
Both the Commonwealth and trial court complied with Pa.R.A.P. 1925.
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uncontradicted. This Court must first determine whether the
record supports the factual findings of the suppression court and
then determine the reasonableness of the inferences and legal
conclusions drawn from those findings. In appeals where there
is no meaningful dispute of fact, as in the case sub judice, our
duty is to determine whether the suppression court properly
applied the law to the facts of the case.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super. 2013) (quotation
marks and citations omitted).
Here, the facts are not in dispute, as only one witness (Officer
Banning) testified at the suppression hearing. Thus we are presented solely
with the legal question of whether the facts recited by the trial court, as set
forth supra, give rise to probable cause to support Robbins’s arrest, or, as
the trial court concluded, only reasonable suspicion to stop and investigate
further.
In determining whether probable cause exists under any
given set of circumstances, our Supreme Court has previously
stated that:
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
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.
Commonwealth v. Stroud, 699 A.2d 1305, 1309 (Pa. Super. 1997)
(citation omitted).
Our case law is replete with decisions addressing probable
cause for arrest in the context of drug trafficking on public
streets. It is well-established that not every transaction involving
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unidentified property exchanged on a street corner gives rise to
probable cause for arrest. However, when certain other factors
are present, police officers may be justified in concluding that
the transaction is drug-related, and hence that probable cause
for arrest exists. It is important to view all of the facts and the
totality of the circumstances in order to avoid rendering a
decision that is totally devoid of [the] commonsensical
inferences [that are] drawn by trained police officers with regard
to drug activity.[4]
For example, in [Commonwealth v. Nobalez, 805 A.2d
598 (Pa. Super. 2002)], an experienced officer, who was on
routine patrol in a residential neighborhood known for its high
level of drug trafficking, observed the following street
transaction: an unknown male approached the appellant and
handed him money, at which point the appellant reached into his
jacket and then dropped an unknown object into the other man’s
hand. Believing that he had just witnessed a drug sale, the
officer left his patrol car, approached the appellant, and stopped
him, at which point the purchaser fled and was not apprehended.
Upon searching the appellant, the officer discovered numerous
small packets of cocaine. The appellant filed a motion to
suppress evidence of the drugs based on lack of probable cause
for arrest, which the trial court denied. In affirming the trial
court’s denial, this Court cited several factors: the extensive
experience of the narcotics officer who observed the transaction;
the justified reputation of the area in which the transaction took
place as a site of a high level of drug trafficking; and the flight of
the buyer.
The Nobalez [C]ourt cited [Stroud] in support of its
decision. In Stroud, a highly experienced police officer was
conducting nighttime surveillance of a street corner which had
been the focus of neighborhood complaints because of drug-
4
“[A] police officer’s experience may fairly be regarded as a relevant factor
in determining probable cause.” Commonwealth v. Thompson, 985 A.2d
928, 935 (Pa. 2009). Moreover, “[t]he fact that the police officer was
unable to identify the object as contraband does not prevent probable cause
from arising, given his belief and based on his experience as a narcotics
officer ... when coupled with the totality of all the other circumstances.”
Stroud, 699 A.2d at 1309.
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trafficking activity. The officer observed two transactions in
which the defendant accepted cash from two other individuals in
exchange for an object that he retrieved from his shoe. Between
the two transactions, the officer also observed the defendant
remove small objects from the trunk of a nearby automobile and
place them in his shoe. Following these observations, the officer
arrested the defendant and, in a search subsequent to arrest,
discovered vials of illegal drugs on his person. The trial court
granted the defendant’s motion to suppress the drugs, based on
lack of probable cause for arrest. However, this Court reversed,
citing the totality of the facts and circumstances, in particular
the extensive experience of the narcotics officer, who was
engaged in binocular-aided surveillance of a street corner known
both to the neighborhood and to the officer personally as a site
of drug-dealing and drug arrests.
Commonwealth v. Wells, 916 A.2d 1192, 1195-96 (Pa. Super. 2007)
(quotation marks, emphasis and some citations omitted; some brackets in
original).
In this case, the trial court determined the Commonwealth was
required to present evidence not only related to Officer Banning’s decision to
stop Robbins, but also “regarding the manner in which the stop was
effectuated, the precise manner of the search, the location in which the
narcotics were recovered, along with the circumstances of the actual arrest.”
Trial Court Opinion, 8/28/2018, at 7-8. In that regard, the court found that
while Officer Banning’s testimony was enough to establish reasonable
suspicion allowing police to stop Robbins and conduct an additional
investigation, the Commonwealth failed to present evidence regarding the
manner in which the subsequent search and seizure of Robbins occurred.
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Specifically, the trial court noted that the only testimony that was
presented at the hearing was that of Officer Banning, who was “the officer
conducting the surveillance [and who] ‘instructed backup officers to stop and
investigate’” Robbins, but Officer Banning was not present for the
subsequent search and arrest. Id. Thus, the absence of testimony from the
arresting officer5 left the trial court guessing whether Robbins was subjected
to an additional investigation after being stopped by police or whether
Robbins was immediately arrested and then searched. Id. at 9. The trial
court opined this distinction was important based upon: (1) the
Commonwealth’s evidentiary burden of putting forth evidence regarding the
subsequent stop and arrest of Robbins; and (2) the trial court’s finding that
police had only reasonable suspicion to stop and investigate Robbins and did
not have probable cause to arrest him immediately. Id. at 7-10.
On appeal, the Commonwealth argues, however, that probable cause
to arrest Robbins existed when Officer Banning, after observing several
hand-to-hand transactions between Gant and other individuals who were
subsequently stopped by police and found to be in possession of drugs,
5
The Commonwealth offered to reopen the suppression hearing and call
Officer Smalls, the arresting officer, whom the Commonwealth had noted
was available to testify, but the trial court did not accept the offer. N.T.,
6/1/2018, at 14, 29.
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observed Robbins “re-upping”6 Gant with drugs. Commonwealth’s Brief at
9-12. Furthermore, based upon the averments set forth in Robbins’s motion
to suppress, the Commonwealth disagreed with the trial court’s finding that
the Commonwealth was obligated to present evidence regarding the manner
in which the stop, search, and arrest of Robbins occurred. Id. at 13-14
citing Pa.R.Crim.P. 581(D) (requiring a motion to suppress to “state
specifically and with particularity the evidence sought to be suppressed, the
grounds for suppression, and the facts and events in support thereof”) and
Commonwealth v. Dixon, 997 A.2d 368 (Pa. Super. 2010) (en banc)
(holding the Commonwealth met its burden of proof in a suppression motion
where Dixon alleged only that the suppression of evidence was necessary
because of a lack of reasonable suspicion and/or probable cause, as opposed
to the manner in which the evidence was seized following the stop). Upon
review of the record and applicable case law, we agree with the
Commonwealth.
Based on the cases cited supra and others, we find several factors
relevant to our determination that probable cause existed in this case. Here,
Officer Banning, a narcotics officer with nearly two decades of experience on
the Narcotics Strike Force, who testified that he participated in thousands of
6 Officer Banning testified that “re-upping” is “when a seller runs out [of
product] on the block, somebody else has more product, brings it to the
corner.” N.T., 6/1/2018, at 16.
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arrests and surveillances, set up surveillance in the early evening hours in a
“very high-drug area.” N.T., 6/1/2018, at 6-7. Once the surveillance was
established, Officer Banning observed three hand-to-hand transactions
between Gant and three individuals, later stopped and identified by police.
Id. at 7-10. Each interaction occurred in a similar fashion, and based upon
Officer Banning’s experience, he suspected Gant was selling drugs to these
individuals. Id. at 16. Indeed, when stopped by police, each individual was
found to be in possession of glassine bags of suspected narcotics. Id. at 7-
10.
Armed with this knowledge, Officer Banning continued his surveillance
and eventually observed Robbins approach Gant and retrieve a white
rectangular object from his person, which Officer Banning suspected was a
rack of heroin. Id. at 10-11. Officer Banning watched as Robbins opened
the container and handed what Officer Banning believed was a bundle or
bundles of heroin to Gant before walking away. Id. at 11-12. Based on this
interaction, Officer Banning believed Robbins was “re-upping” the block and
Gant. Id. at 16. Immediately following this interaction, Officer Banning
observed Gant participate in yet another hand-to-hand transaction with an
unidentified man. Id. at 12. Given the totality of the circumstances, we
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conclude that police possessed probable cause to arrest Robbins. 7 See
Thompson, 985 A.2d at 936-37 (concluding that “[b]ecause we have
determined that a police officer’s experience may be fairly regarded as a
relevant factor in determining probable cause, and due to the presence of
additional factors in support … [such as] the fact that the transaction at
issue occurred in the nighttime hours, on the street, in a neighborhood that
the police department selected for the ‘Operation Safe Streets’ program[,]”
probable cause existed to arrest Thompson). See also Commonwealth v.
Smith, 979 A.2d 913, 920 (Pa. Super. 2009) (“Here, the experienced
narcotics officer observed [Smith’s] suspicious actions, uncontradicted at the
hearing by any other evidence. Interpreting these observations through the
lens of his training and experience, including fifty to seventy-five
surveillances in the immediate neighborhood, he concluded that criminal
7 We note that, in its decision to suppress the narcotics evidence in this
case, the trial court relied, in part, on Officer Banning’s testimony that after
he observed the interaction between Gant and Robbins, he told backup
officers assisting the surveillance to “arrest” Gant and “investigate” Robbins.
N.T., 6/1/2018, at 12. See Trial Court Opinion, 8/28/2018, at 9-10 (“The
clearest indication to th[e trial c]ourt that a substantial question existed in
the mind of Officer Banning regarding the appropriateness of an immediate
arrest of [Robbins] is reflected in the instructions Officer Banning gave to his
backup officers. It was only [] Gant who[m] Officer Banning gave
instructions for the backup officers to immediately arrest. Officer Banning
unequivocally instructed backup officers to ‘investigate’” Robbins.) (internal
citations omitted). Officer Banning’s instruction to investigate as opposed to
arrest Robbins is of no moment; in light of Officer Banning’s testimony, as
cited in detail supra, we find probable cause existed to arrest Robbins
without any further investigation.
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drug activity was afoot. This was not a situation where the officer’s training
and experience [were] offered as an independent factor to bootstrap an
otherwise deficient observation. Rather, in the totality of circumstances, the
officer used his training and experience as the nexus for the conclusion that
based on his observations there was criminal drug activity afoot and that the
police had probable cause to arrest.”) (citation omitted).
Finally, we conclude that the Commonwealth was not, as the trial court
suggests, required to present evidence detailing the manner in which the
subsequent stop, search, and arrest of Robbins occurred. See Trial Court
Opinion, 8/28/2018, at 7-8 ( “[T]he Commonwealth was required to produce
evidence regarding the manner in which the stop was effectuated, the
precise manner of the search, the location in which the narcotics were
recovered, along with the circumstances of the actual arrest.”). In
concluding as such, we find this Court’s decision in Dixon, supra,
instructive.
In Dixon, a panel of this Court addressed the Commonwealth’s
evidentiary burden when presented with a defendant’s motion to suppress.
Specifically, the Court reiterated that Pa.R.Crim.P. 581(D) requires a
defendant seeking the suppression of evidence to set forth the specific
theories and grounds for relief. Id. at 373. In turn, the Commonwealth is
required only to put forth evidence to establish that the seized items were
not obtained in the unlawful manner set forth by the defendant in his
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motion. Cognizant of the dictates of Rule 581(D), upon its own independent
review, the Dixon Court found that Dixon “did not assert as a ground for
suppression that the manner of the seizure of the physical evidence violated
Dixon’s constitutional rights, only that the seizure was not warranted in the
first place.” Id. at 375. Thus, this Court concluded that the Commonwealth
was not obligated to present testimony regarding how the contraband was
recovered.
Similarly, in this case, Robbins filed a motion to suppress physical
evidence and set forth, with specificity, the grounds for suppression.
Specifically, Robbins asserted that suppression was necessary because: (1)
his arrest was illegal and without probable cause, “a lawfully issued warrant
or other legal justification[;]” and (2) “he was subjected to a stop and frisk
on less than reasonable suspicion.” Omnibus Motion, 2/26/2018, at 1. As in
Dixon, because Robbins did not assert the manner in which the police
seized the narcotics as a ground for suppression in his motion, the
Commonwealth was not required to present additional evidence detailing the
actual stop and specific way the narcotics were recovered.
In light of the foregoing, we find the trial court’s conclusions erroneous
and contrary to our well-established case law. Since police had probable
cause to arrest Robbins based upon the aforementioned observations of
Officer Banning, the drugs were lawfully seized regardless if the search
occurred prior or incident to Robbins’s formal arrest.
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/19
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