Commonwealth v. Galendez

CONCURRING AND DISSENTING OPINION BY

LAZARUS, J.:

I join in the majority’s decision regarding the validity of Galendez’s probation and parole condition which authorized random searches of his residence and was imposed two days after sentencing. The probationary condition is not only invalid because it was entered without notice to or in the presence of Galendez and his attorney two days following sentencing, but, as our full Court held in Commonwealth v. Alexander, 16 A.3d 1152 (Pa.Super.2011), such conditions are illegal when they are not based upon reasonable suspicion. Moreover, with regard to the parole condition, a trial court does not have the authority to impose such random residential conditions on parole where the defendant’s maximum sentence is two or more years. Id.; see also Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super.2010) (en banc).

I write separately, however, because I disagree with the majority’s conclusion that Officer Johnson had probable cause to arrest Galendez without a warrant. Specifically, the majority states that “a police officer’s knowledge that a person has an outstanding scofflaw warrant and is wanted for questioning in another matter gives that officer probable cause to make a war-rantless arrest.” Majority Opinion at 1044. I believe that these unverified facts, at most, gave the officer reasonable suspicion to conduct a stop of Galendez; they do not rise to the level of probable cause to arrest him.¹

Case law states that probable cause exists “when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonable trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991) (emphasis added). The only information supporting Officer Johnson forcing Galendez to the barber shop floor at gunpoint was: (1) he knew Galendez as a regular in the neighborhood; (2) he knew Galendez from previous incidents; (8) he knew Galendez had an outstanding scofflaw warrant; and (4) he knew Galendez was wanted “in the east division” for questioning in a carjacking. N.T. Suppression Hearing, 9/11/2007, at 6. Even looking at these facts in total, as we must, the arresting officer’s information does not qualify as “reasonably trustworthy.” Rodriguez, supra.

Officer Johnson neither indicated how he uncovered this outstanding warrant or questioning information, nor supported his statements by a reasonably trustworthy authority or basis (such as police database records, confidential informant tips, or even a photocopy of the alleged warrant).² Nowhere in the record does the officer provide any further information regarding how he became aware of the scofflaw warrants, who had told him of such warrants, or where he may have obtained the information on the outstanding warrants.³ Without more, a “prudent man” would not believe that, at the time of Galendez’s arrest, an offense had been committed. Commonwealth v. Thompson, 604 Pa. 198, 985 A.2d 928, 931 (2009) (“probability” of criminal activity required by police officer to conduct arrest). At most, the information might have justified stopping Galen-dez and asking him some questions; it certainly did not justify “t[aking] Mr. Gal-endez down at gun point [and] forcing] him to the ground.” N.T. Suppression Hearing, 9/11/2007, at 5-6.

Because the factual findings do not support Galendez’s warrantless arrest, I would reverse Galendez’s judgment of sentence and remand for a new trial.

1 . Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999).

2 . Although the trial court states in its Pa. R.A.P. 1925(a) opinion that "[t]he Officer testified that he was aware of the warrant because of his work with the Task Force,” Trial Court Opinion, 3/7/2008, at 3, this statement is not supported in the record.

3 .To the extent that the trial court suggests that it was Galendez’s obligation to prove the invalidity of the search warrant, we stress that it is the Commonwealth's burden to prove that Galendez’s arrest was lawful and the evidence uncovered from the arrest was lawfully obtained. See Pa.R.Crim.P. 581(H).