Commonwealth v. Thompson

Chief Justice CASTILLE,

concurring opinion.

Recognizing the importance of clear majority expressions when possible, I join the Majority Opinion in its entirety. See J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 807 A.2d 847, 871 (2002) (Castille, J., concurring) (“I also join in the majority opinion because I believe that it is important for this Court to decide cases by clear majority opinion whenever possible, and particularly where, as here, the case is heard upon discretionary appeal.”), citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 408, 122 S.Ct. 1516, 152 L.Ed.2d 589, (2002) (O’Connor, J., concurring).1 I write separately only to note that, left to my own devices, I would go farther.

My views in this area have been stated at length before. See Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671, 681-85 (2007) (Castille, J., dissenting), cert. denied sub nom. Pennsylvania v. Dunlap, ___ U.S. ___, ___, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008); Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752, 754-55 (1995) (Castille, J., dissenting). I would overrule Dunlap, which, as the Majority details, was at war with itself over the relevance of police experience to the probable cause question, as reflected by the fact that two of the four Justices comprising the Dunlap majority also signed onto a non-joining concurrence, which expressed a different view on that central question. As explained in my Dunlap dissent, even accepting Banks as governing precedent, Dunlap was wrongly decided. 941 A.2d at 683.2

*216Furthermore, I remain open to reconsideration of the two-page majority opinion in Banks itself, which I have elsewhere described as marking “the nadir in the history of this Courts search and seizure jurisprudence.” Commonwealth v. E.M., 558 Pa. 16, 735 A.2d 654, 665 (1999) (Castille, J., joined by Newman, J., concurring and dissenting). And so it was, until Dunlap came along.

*217It is important to remember that these are Fourth Amendment cases, and thus this Court’s institutional role requires us to recognize and follow the teachings of the U.S. Supreme Court. Yet, notwithstanding that the Dunlap majority’s deviation from High Court authority was central to my Dissenting-Opinion in Dunlap, see 596 Pa. at 166-68, 941 A.2d at 683-84 (citing governing cases from U.S. Supreme Court), the Dunlap majority proceeded as if there was no relevant federal authority.

For my part, I continue to believe that we are obliged to follow governing precepts announced by the U.S. Supreme Court in Fourth Amendment cases; at a minimum, we should indicate an awareness of their existence. Dunlap did not do so. Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973), was not legislation, and neither was Commonwealth v. Banks. These were individual Fourth Amendment cases, obviously tied to their facts. The expressions employed in the cases, to account for the considerations then presented and perceived, do not exhaust the Fourth Amendment universe. Thus, police experience does not become a “non-fact” in determinations of probable cause just because it was not at issue and not mentioned in Latuson. By the same token, the happenstance that multiple transactions were involved in Lawson does not make that a probable cause prerequisite. Indeed, if we are to pretend that these transactions are perfectly innocent — or innocent enough that they do not give rise even to a probability of crime, which is a very low threshold — how does repetition change the equation? That Banks and Dunlap reveal a blindness to the reality of street level drug crimes is a reason to consider hands-on police experience, not a reason to deride it and consign the good citizens in drug-infested neighborhoods to helpless victimhood.

In any event, I question the value of parsing cases such as Banks and Dunlap when those cases made little effort to account for the rest of the rich Fourth Amendment universe. The facts sub judiee are analogous to those in Dunlap, as those facts were aptly — and entex-tainingly — summarized in *218Chief Justice John G. Roberts, Jr.’s statement, joined by-Justice Anthony- M. Kennedy, dissenting from the denial of certiorari in that case:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Pennsylvania v. Dunlap, ___ U.S. ___, ___, 129 S.Ct. 448, 448, 172 L.Ed.2d 321 (2008) (Roberts, C.J., joined by Kennedy, J., dissenting). The Chief Justice noted that he would have found probable cause to be present: “A drug purchase was not the only possible explanation for the defendant’s conduct, but it was certainly likely enough to give rise to probable cause.” Id.

The Chief Justice’s analysis of this typical, repeating fact pattern is instructive as a reminder of the limited quantum of proof required for probable cause as well as the practical, realistic nature of the probable cause inquiry under the Fourth Amendment:

The probable-cause standard is a “nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (internal quotation marks omitted). What is required is simply “a reasonable ground for belief of guilt,” id., at 371, 124 S.Ct. 795 (same)-a “probability, and not a prima facie showing, of criminal activity,” Illinois v. Gates, 462 U.S. 213, 235, 103 *219S.Ct. 2317, 76 L.Ed.2d 527 (1983) (same). “[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists,” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), including inferences “that might well elude an untrained person,” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
On the facts of this case, I think the police clearly had probable cause to arrest the defendant. An officer with drug interdiction experience in the neighborhood saw two men on a street corner-with no apparent familiarity or prior interaction-make a quick hand-to-hand exchange of cash for “ ‘small objects.’ ” 941 A.2d, at 673. This exchange took place in a high-crime neighborhood known for drug activity, far from any legitimate businesses. Perhaps it is possible to imagine innocent explanations for this conduct, but I cannot come up with any remotely as likely as the drug transaction Devlin believed he had witnessed. In any event, an officer is not required to eliminate all innocent explanations for a suspicious set of facts to have probable cause to make an arrest. As we explained in Gates, “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” 462 U.S., at 244, n. 13, 103 S.Ct. 2317.
The Pennsylvania Supreme Court emphasized that the police did not actually see any drugs. 941 A.2d, at 679. But Officer Devlin and his partner were conducting undercover surveillance. From a distance, it would be difficult to have a clear view of the small objects that changed hands. As the Commonwealth explains in its petition for certiorari, the “classic” drug transaction is a hand-to-hand exchange, on the street, of cash for small objects. Pet. for Cert. 5-8. The Pennsylvania Supreme Court’s decision will make it more difficult for the police to conduct drug interdiction in high-crime areas, unless they employ the riskier practice of having undercover officers actually make a purchase or sale of drugs.
*220The Pennsylvania Court also noted that the defendant did not flee. 941 A.2d, at 671. Flight is hardly a prerequisite to a finding of probable cause. A defendant may well decide that the odds of escape do not justify adding another charge to that of drug possession. And of course there is no suggestion in the record that the defendant had any chance to flee-he was caught redhanded.
Aside from its importance for law enforcement, this question has divided state courts, a traditional ground warranting review on certiorari. S.Ct. Rule 10(b). The New Jersey Supreme Court has held that an “experienced narcotics officer” had probable cause to make an arrest when-in a vacant lot in a high-drug neighborhood-he “saw defendant and his companion give money to [a] third person in exchange for small unknown objects.” State v. Moore, 181 N.J. 40, 46-47, 853 A.2d 903, 907 (2004). The Rhode Island Supreme Court reached the same conclusion in a case where the defendants-through their car windows-exchanged cash for a small “bag of suspected narcotics.” State v. Castro, 891 A.2d 848, 851-854 (2006). In contrast, the Colorado Supreme Court held that a hand-to-hand exchange of unknown objects did not give the police probable cause to make an arrest, even where one of the men was a known drug dealer. People v. Ratcliff, 778 P.2d 1371, 1377-1378 (1989). All these cases have unique factual wrinkles, as any probable-cause case would, but the core fact pattern is the same: experienced police officers observing hand-to-hand exchanges of cash for small, unknown objects in high-crime neighborhoods.
The Pennsylvania Supreme Court speculated that such an exchange could have been perfectly innocent. But as Judge Friendly has pointed out, “[jjudges are not required to exhibit a naivete from which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (C.A.2 1977). Based not only on common sense but also his experience as a narcotics officer and his previous work in the neighborhood, Officer Devlin concluded that what happened on that street corner was probably a drug transac*221tion. That is by far the most reasonable conclusion, even though our cases only require it to be a reasonable conclusion.

___ U.S. at ___, 129 S.Ct. at 448-49. Accord Dunlap, 941 A.2d at 685 (Eakin, J., joined by Castille, J., dissenting) (“Where police observe surreptitious street corner transactions, a drug sale is often, if not always, the most plausible explanation of the exchange. While an innocent explanation is certainly possible, we are not talking about certainties, but probabilities, and only probabilities that are reasonable. I have yet to come across an innocent explanation of such conduct in a brief or argument in any similar case that is arguably likely, much less equally probable. If a drug transaction is the most likely explanation, why should this Court permit continuation of the formulaic fiction that one transaction can never comprise probable cause? In this regard I believe Banks, which I acknowledge remains the prevailing precedent, was wrongly decided and overbroad, and ought to be revisited.”).

Of course, persuasive as they are, neither the dissent of the Chief Justice nor the dissent by Mr. Justice Eakin is binding precedent; but the cases the Chief Justice cites are, and the Court’s overall teachings about the nature of probable cause are. Dunlap made no effort to recognize our institutional role in determining this federal question: it failed to realize the importance of the High Court’s jurisprudence, innovated its own idiosyncratic and contrary approach, and thereby failed to grasp the fundamental nature of probable cause. Police on the street should not be required to deny the realistic and the probable in favor of the improbable and the theoretical — and certainly not under the guise of a federal constitutional standard that is bottomed in reasonableness and practicality.

. I obviously do not deem it any great affront to stare decisis to revisit Dunlap, which is in tension with prevailing federal principles and which obviously has created confusion in trial courts, which deal with this most common of drug arrests every day. Moreover, this Court’s published decisions in Banks and Dunlap are not the only source of confusion. *222There were a number of unexplained per curiam reversals entered by this Court in the wake of Banks, which were difficult to square with the Banks majority’s pronouncement that the facts in Banks fell just short of probable cause. That circumstance led to misguided and ultimately futile attempts to divine an implied jurisprudence out of our per curiam orders. The Majority performs a necessary and overdue supervisory function in deciding the second question accepted for review here, concerning that alleged shadow jurisprudence, which Dunlap inexplicably failed to resolve. Finally, I would note that concerns of stare decisis obviously are not as weighty in areas not subject to legislative response or correction.

I join the Majority Opinion.

Justice EAKIN and McCAFFERY join this opinion.

. In holding that "a police officer’s experience may fairly be regarded as a relevant factor in determining probable cause,” the Majority Opinion "caution[sJ, however, that an officer’s testimony in this regard shall not simply reference 'training and experience abstract from an explanation of their specific application to the circumstances at hand.’ " Majority Op. at 210, 985 A.2d at 935 (quoting Dunlap, 941 A.2d at 679 (Saylor, J., concurring)). I do not read this caveat as requiring some sort of miniature trial concerning how the police officer tied his training and experience to his observations. A few questions should suffice.

. Banks did not betray the hostility to police experience that was embraced when Dunlap rewrote this Court’s Fourth Amendment juris*216prudence to view police training and experience as a non-factor in evaluating probable cause. In finding that the totality of the circumstances in Banks (single midday transaction of unidentified object for cash, followed by flight upon police approach) fell "narrowly short of establishing probable cause," the Banks majority stressed the absence of what it called "[wjell recognized additional factors giving rise to probable cause.” Banks, 658 A.2d at 753. In discussing those well-recognized factors, Banks noted that: "[t]his is not a case where a trained narcotics officer observed either drugs or containers commonly known to hold drugs being exchanged. See Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993)." Id.

Judge Cercone’s opinion in Burnside — cited approvingly and without qualification by Banks as sole support for a settled proposition — in turn included the following observations:

[Wjhile a particular type of container may have lawful purposes, the circumstances under which a trained narcotics detective views its use may be tantamount to a view of actual contraband.....The uncontradicted evidence presented by the Commonwealth in the instant case shows that Officer Jones was on patrol in an area with which he was closely acquainted and which he knew to be the scene of prior drug transactions. Officer Jones had been assigned to that locale for over five years and had personally effectuated between thirty and forty arrests for drug trafficking. From a distance of only ten feet, this experienced officer observed appellee holding a handful of the exact type of packets used by local narcotics dealers when selling cocaine.™1 The officer's suspicions as to the probable contents of the packets displayed by appellee were bolstered when appellee immediately concealed the packets and vacated his street location upon sighting the police patrol car. Officer Jones concluded that appellee’s display of what appeared to be retail packages of a narcotic coupled with appellee’s furtive movements supported the conclusion that appellee was in possession of contraband in violation of Pennsylvania's drug laws.
FN1 Officer Jones had been present when the contents of such packets, seized in numerous previous arrests, were tested. All were found to contain cocaine.

625 A.2d at 681 & n. 1 (citation omitted). Burnside did not reference optometry. Indeed, to my knowledge, there is no case casting police training and experience as a mere "lens” in the jurisprudence of this *217Court, or of the U.S. Supreme Court, prior to Dunlap embracing a Superior Court dissent which invented that approach.