Commonwealth v. Thompson

Justice TODD,

dissenting.

I respectfully, but vigorously, dissent from the Majority’s conclusion that Appellant’s immediate arrest was supported by the requisite, constitutionally-mandated probable cause.1 In order to safeguard the inviolate right of the people of this Commonwealth to be free from unlawful seizures of their persons by the government, our Court has steadfastly enforced the Fourth Amendment’s prohibition against arrest in the absence of probable cause. We have, for over 35 years, through our decisions in Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973); Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995); and Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007), cert. denied, ___ U.S. ___, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008), reiterated that probable cause to justify the immediate arrest of an individual does not exist simply because he or she has been observed selling an unknown item to another individual on a public street, unless there are sufficient additional objective facts and circumstances indicating criminal activity has occurred. However, with today’s ruling in the instant matter, the Majority, under the guise of clarifying our Court’s 2007 decision in Dunlap, supra, has effectively overruled that case by deviating from the probable cause rubric articulated and renewed therein without providing any rationale for its disregard of the principles of stare decisis which guide our jurisprudence. I believe this deviation to be unwarranted and unwise, since it has the potential to result in future arrests being made, not on the basis of objective facts but, rather, on the basis of nothing *227more than a subjective belief or inchoate hunch, thereby significantly diminishing our citizenry’s vital constitutional protections.

In the case of Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973), our Court first articulated a bedrock principle of our search and seizure jurisprudence that “[ejvery commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause for an arrest.” Id. at 29, 309 A.2d at 394. Our Court emphasized that, in such cases, a proper assessment of whether probable cause exists requires an examination of all of the objective factors surrounding the transaction such as: (1) the time of the transaction; (2) the street location of the transaction; (3) the use of the street for the transaction; (4) the number of the transactions; (5) the place where the items were kept by the sellers; and (6) the movements and manners of the parties. Id. at 28, 309 A.2d at 394.2 Conspicuously absent from this list of externally observable and articulable factual circumstances is the subjective opinion of the police officer, standing alone, as to the nature of the transaction witnessed, based solely upon his or her general police training, or past observation of other transactions.

This is logical since our Court in Lawson established the proper role of the officer’s training and experience in the probable cause analysis by quoting the standard enunciated by the United States Supreme Court in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959): “Probable *228cause exists if the facts or circumstances known to the officer warrant a prudent man in believing that (an) offense has been committed.” Lawson, at 27, 309 A.2d at 394 (quoting Henry, 361 U.S. at 102, 80 S.Ct. 168) (emphasis omitted). Under this test, a reviewing court examines the external facts and circumstances and considers them from the vantage point and perspective of the officer. Therefore, the officer’s training and experience, in and of itself, does not exist as a separate component of this analysis but, rather, informs the court’s consideration of the objective factors which the officer observed.

Before effectuating the arrest in Lawson, the officers had conducted surveillance of two individuals, a husband and wife, from a distance of approximately ten yards via high powered binoculars, and during this surveillance they witnessed three separate exchanges of small items for money. Each of the three exchanges involved a buyer approaching the husband and handing him cash, whereupon the husband would walk over to where his wife was standing. She would then remove a small object from a dark sack secreted in her bosom and give the object to her husband, who, in turn, passed it to the buyer. The buyer would subsequently depart, and the husband would pocket the money, while the wife returned to her position on the sidewalk several feet away. After seeing the third transaction transpire, the officers drove up to the scene in an unmarked vehicle. The sight of the approaching vehicle containing the officers caused the husband and vafe to hurriedly retreat into a nearby bar. Once inside, the husband barred the door against the officers’ entry while the wife ran to the ladies room. Id. at 25-26, 309 A.2d at 393.

Our Court considered the entirety of these observations, in conjunction with the standards set forth above, and concluded that the total facts and circumstances witnessed by the officers gave rise to probable cause to arrest. Even so, our Court found the totality of the observed circumstances presented a close question, and we cautioned that in conducting a probable cause assessment there was no one fact or circumstance which could be isolated and given specific weight over any of the *229others. Our Court also was careful to point out that, had any one of the objective facts and circumstances been missing, a conclusion of probable cause may not have been justified. Id. at 29, 309 A.2d at 394.

Twenty-two years later, in our 5-1 decision in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995), our Court reaffirmed the Laioson admonition that a single exchange of an unidentified object for money which occurs on a public street does not, in and of itself, furnish adequate probable cause for the immediate warrantless arrest of the citizens who participated. In Banks, a Philadelphia police officer was patrolling in his marked police car at 12:50 in the afternoon when he saw the appellant, who was standing on a street corner, reach into his pocket and hand an object to a female standing nearby who, after receiving the item, gave him some money. The officer could not see what the object was that the appellant handed to the female. As the officer approached in his car, the appellant fled, but he was almost immediately apprehended with cocaine discovered on his person.

The appellant’s motion to suppress was denied by the trial court, and the denial was affirmed by the Superior Court. In reversing both courts, we focused on the complete dearth of any objective factors arising from the appellant’s observed conduct that would link him to criminal activity and support a finding of sufficient probable cause on the part of police to immediately arrest him. We noted that, unlike in Lawson, the police officer did not observe the appellant engage in “multiple, complex, suspicious transactions.” Banks, 540 Pa. at 455, 658 A.2d at 753. Additionally we pointed out this was “not a case where a trained narcotics officer observed either drugs or containers commonly known to hold drugs being exchanged,” and it was “not a case in which the police officer was responding to a citizen’s complaint or to an informant’s tip.” Id. (emphasis original). Rather, we underscored that it was “simply a case where a police officer chanced upon a single isolated exchange of currency for some unidentified item or items, taking place on a public street corner at midday, and where appellant fled when approached by the officer.” Id. We *230declared in our opinion, as we had done previously in Lawson, that this observation was not enough to effectuate a full-blown arrest, holding:

[M]ere police observation of an exchange of an unidentified item or items on a public street corner for cash (which alone does not establish probable cause to arrest) cannot be added to, or melded with the fact of flight (which alone does not establish probable cause to arrest) to constitute probable cause to arrest. Such facts, even when considered together, fall narrowly short of establishing probable cause.

Id. at 456, 658 A.2d at 753.

Notably, we expressly rejected the argument that the appellant’s flight at the sight of police gave rise to probable cause for his arrest, due to the paucity of other factual circumstances pointing to his involvement in criminal activity — once more reinforcing the principle that no one single factor viewed in isolation establishes probable cause. Moreover, and importantly, just as in Lawson, we did not set forth as an independent factor which may be considered in a probable cause analysis of this type the subjective opinion of the officer derived solely from past training and experience. Thus, Banks amplified our teaching in Lawson that probable cause to immediately arrest an individual does not exist unless a sufficiently adequate aggregation of objective factual circumstances have been observed by the arresting officer which establish a fair probability that the individual was involved in criminal activity. Gates, supra, Rodriguez, supra.

Banks remained undisturbed for the ensuing 12 years.3 Indeed, a mere two years ago, in Dunlap, our Court expressly reaffirmed its viability, as well as the continuing precedential value of Lawson, under factual circumstances very similar to those in the case sub judice. In Dunlap, the arresting officer *231was conducting surveillance of a street corner in Philadelphia when he observed the appellant approach another individual who was standing on the corner. The officer observed the appellant talk to the other individual briefly, hand him money and then receive from him unidentified small objects. Appellant subsequently walked away from the scene and was arrested shortly thereafter. A search of his person yielded 3 packets of crack cocaine. At the time he made his observations, the officer had been on the police force for nearly 5 years, a member of the drug strike team for 9 months, and had, by his recollection, made 15 to 20 arrests in the general geographic area of the corner, which he characterized as an area that suffered a “high rate of nefarious activity, including drug crimes.” 596 Pa. at 149, 941 A.2d at 673. It was these prior experiences, and his opinion of the nature of the neighborhood, which gave rise to the officer’s belief that the exchange he had witnessed was one involving illegal drugs. Id.

Appellant filed a motion to suppress the evidence based on the lack of probable cause to arrest him, which was denied by the trial court. He next appealed to the Superior Court, arguing that Banks required reversal, but a sharply divided 5-4 en banc panel of the Superior Court disagreed and affirmed his conviction. Commonwealth v. Dunlap, 846 A.2d 674 (Pa.Super.2004). Writing for the majority, Judge Klein attempted to distinguish Banks on the basis that the officer’s nine-month experience on the drug task force, and the occurrence of the transaction in a high drug area where the officer had made 15 to 20 arrests, were two additional factors not present in Banks which gave rise to probable cause to arrest.

Judge Johnson authored a dissenting opinion in which he concluded that the majority’s consideration of the officer’s experience as a separate factor, in addition to the other six objective, circumstantial factors articulated in Lawson, improperly changed the law as it had been established by that case and Banks4 The dissent noted that the officer’s experience was not an additional Lawson factor, which, by itself, *232gave rise to probable cause to arrest, but, rather, constituted a lens through which a reviewing court must consider the totality of the factual circumstances, particularly the various Lawson factors, as they were perceived by the officer. Consequently, the dissent viewed the majority as having fundamentally altered this probable cause analysis by adding the officer’s experience as an independent element, and then improperly elevating it in importance over all of the remaining Lawson factors.

On appeal to this court, we reversed. In her majority opinion, Justice Baldwin found it important that our Court did not list police training and experience in Lawson as a factor to be considered in determining the existence of probable cause.5 The majority also observed that since the time of our Lawson decision this Court “never formally recognized an officer’s training and experience, without more, as a factor ... in the totality of the circumstances test. Instead, we have utilized officer training and experience as an aid in assessing the Lawson factors.” Dunlap, 596 Pa. at 153, 941 A.2d at 675 (emphasis original). The majority emphasized that our Court has steadfastly reminded that, in applying the totality of the circumstances test “probable cause ‘is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest, guided by his training and experience.’” Dunlap, 596 Pa. at 153, 941 A.2d at 675 (quoting Commonwealth v. Norwood, 456 Pa. 330, 334, 319 A.2d 908, 910 (1974) (emphasis original)).6 Consonant with our Court’s long standing judgment of the proper role and regard to be given to an officer’s training and experience in a probable cause analysis, the majority held that “police training and experience, without more, is not a fact” in the probable *233cause calculus but, rather, a “ ‘lens’ through which courts view the quantum of evidence observed at the scene.” Dunlap, 596 Pa. at 153, 941 A.2d at 675 (emphasis original). Elaborating, the majority pronounced: “[A] court cannot simply conclude that probable cause existed based upon nothing more than the number of years an officer has spent on the force.” Id. at 154, 941 A.2d at 676. “Rather, the officer must demonstrate a nexus between his experience and the search, arrest, or seizure of evidence.” Id.

The Dunlap majority additionally explained why this prerequisite was vital to enforcing the constitutional requirement that probable cause exist before a warrantless arrest may be undertaken:

[I]n reviewing probable cause, a police officer’s training and experience is not a probable cause factor in the Lawson sense. If that were the case, the concept of probable cause as a constitutional barrier between the privacy of the citizen and unwarranted governmental intrusions would be undermined by an officer’s ability to bootstrap a hunch based on constitutionally insufficient objective evidence simply by adverting to his experience as the foundation of his suspicion. While probable cause is a fluid concept, and requires only a showing that criminal activity may be reasonably inferred from a set of circumstances and need not be shown to, in fact, exist we must nonetheless remain true to its purposes, one of which is protecting citizens from arbitrary police intrusions. If we were to conclude that a police officer’s experience was a factor to be added to every probable cause determination, rather than serve as a lens through which to view the facts, then every time an experienced officer begins a shift, probable cause begins to be assessed against all citizens every time they fall under the watchful eye of a suspicious officer who has been on the job for a meaningful period of time. The danger of this, of course, is the potential for innocent citizens being unlawfully seized and/or searched, i.e., being searched or seized with less than probable cause.

*234Dunlap, 596 Pa. at 156, 941 A.2d at 676-77 (citation omitted) (emphasis original).

Applying these tenets to determine whether sufficient probable cause existed to validate the appellant’s arrest, the Dunlap majority reaffirmed the Lawson/Banks principle that every commercial transaction between citizens on a street corner involving unidentified property does not furnish probable cause for the arrest of the parties thereto. The majority considered the underlying facts surrounding the appellant’s arrest to be “more analogous” to the sequence of events which transpired in Banks, as opposed to what occurred in Lawson, and it found the observed circumstances, even when viewed from the perspective of an experienced police officer, did not furnish sufficient probable cause to arrest.

The majority noted the presence of only one of the Latvson factors — the officer’s claim that the transaction occurred in a “high crime area” — but it rejected the idea that this assertion, standing alone, provided probable cause to arrest. By contrast, the majority found the presence of a number of other significant details about the incident militating against a finding of constitutionally adequate probable cause for arrest: (1) the appellant participated in only one isolated transaction; (2) the officer had no tip or other information which suggested that the appellant was involved in drug activity or that a drug sale was about to occur; (3) the officer observed no drugs changing hands in the transaction or the presence of drug paraphernalia; and (4) the appellant made no attempt to flee from the police. Thus, the paucity of objective reasons for the appellant’s arrest compelled the majority’s conclusion that the arrest had improperly taken place on the basis of “mere suspicion, not probable cause.” Dunlap, 596 Pa. at 157, 941 A.2d at 679. The arrest therefore violated the Fourth Amendment because it was the primary product of the officer’s subjective hunch, not any objective external factors giving rise to a fair probability of criminal behavior when viewed by the officer through the lens of his experience.

In the case sub judice, the observed factual circumstances leading to the arrest of Appellant closely mirror those present *235in Dunlap, and, thus, Appellant’s arrest likewise suffers from the same critical deficiency of probable cause. Just as in Dunlap, the officer in the instant matter, prior to arresting Appellant, had no prior warning from an informant or identified citizen complainant that Appellant was involved in the narcotics trade and would be selling drugs at that location. Likewise, the arresting officer did not observe Appellant engaging in multiple orchestrated, complicated, and suspicious transactions; rather, he observed a single lone transaction, for an unknown object, after which Appellant did not flee or otherwise attempt to evade or resist the police. Importantly, the officer at no time observed the presence of any drugs, or containers which he knew through his experience to commonly be used to package controlled substances for sale.

The only factors present which the trial court found to justify the arrest of Appellant were the arresting officer’s opinion of the nature of the neighborhood and his prior experience making drug arrests which gave rise to his belief that he had witnessed a sale of narcotics. See Trial Court Opinion, 8/11/06, at 6 (“The officer’s knowledge of the nature of the area, his experience in drug arrests, his ability to observe the transaction, and his reasonable belief that he had just witnessed a sale of narcotics together were sufficient to constitute probable cause.”). Nevertheless, the trial court considered these factors sufficient to establish probable cause based on the Superior Court’s decision in Dunlap, which, as discussed at length above, we expressly overruled.7 Id. at 6.

Because we rejected the Superior Court’s rationale in our Dunlap decision and held that the factors relied on by the trial court herein, even considered together, are not enough to give rise to probable cause to arrest, the trial court’s denial of Appellant’s suppression motion should presently be reversed, *236in accordance with our holding in Dunlap. However, even though the facts of the case sub judice are nearly on all fours with the facts of Dunlap, and even though this case presents the same legal question as that which we so recently resolved in Dunlap, the Majority today has chosen to abandon its holding by concluding that a police officer’s experience may now be considered as a separate “relevant factor” to be utilized in determining whether probable cause exists for arrest. Majority Opinion, at 210, 985 A.2d at 935. The Majority arrives at this reversal of position from Dunlap by its wholesale adoption of a single element of Justice Saylor’s non-precedential concurring opinion therein.8

Although two members of the Dunlap majority, Chief Justice Cappy and Justice Fitzgerald, also joined the concurring opinion by Justice Saylor, both justices, along with Justice Baer, joined Justice Baldwin’s opinion fully and without reservation, thus signifying their agreement with all aspects of it. Having commanded the complete agreement of four justices, it is Justice Baldwin’s opinion which is precedential, not the concurrence. See Commonwealth v. Tilghman, 543 Pa. 578, 588, 673 A.2d 898, 903 (1996) (“If a majority of the Justices of this Court ... join in issuing an opinion, our opinion becomes binding precedent on the courts of this Commonwealth. Our majority opinion is binding not only on the parties before us, under the doctrine of law of the case, but is precedent as to different parties in cases involving substantially similar facts, *237pursuant to the rule of stare decisis.” (footnotes and citations omitted)); Commonwealth v. Davenport, 462 Pa. 543, 559, n. 3, 342 A.2d 67, 75 n. 3 (1975) (opinion not representing the views of the majority of the court is not considered decisional); In Re S.J., 554 Pa. 397, 398, 721 A.2d 796, 796 (1998) (Castille, J., concurring) (writing separately to offer guidance to the bench, bar, and law enforcement, but acknowledging concurring statement was “not precedential”). Therefore, the Dunlap majority’s conclusion that an officer’s experience and training are not independent factors in determining the existence of probable cause remains the clear and controlling statement of law with respect to this issue.

Moreover, even though Justice Saylor concluded in his concurrence that a police officer’s experience “may fairly be regarded as a relevant factor in determining probable cause,” relying on Banks he also emphasized our Court’s historical insistence on finding a “factor ... distinctly associated” with the offense in question as a predicate to probable cause. Dunlap, 596 Pa. at 160, 941 A.2d at 679 (Saylor J., concurring). There is no indication that any such “distinctly associated” factor was present in the case at bar since the arresting officer observed no drugs, no containers commonly known to hold drugs, or multiple complex suspicious transactions. He merely observed a single exchange of money for an unidentified item which, in and of itself, is not “distinctly associated” with drug dealing. An exchange of money for a small object is also associated with the purchase of a bus pass or subway token, a cigarette, cigar, candy bar, and an innumerable host of other lawful objects. See William E. Ringel, Searches and Seizures and Arrests and Confessions, § 23:8 (2009) (“Even in the presence of a trained officer, however, gestures and motions commonly associated with drug use may also be so well associated with innocent activities that they do not suffice to establish probable cause.”). Thus, as recognized in Lawson, Banks, and Dunlap, the fact that someone buys a small object from another person on a city street is not enough to establish probable cause.

*238Justice Saylor also noted in his concurrence, as the Majority presently acknowledges, that in order for the officer’s training and experience to be considered in establishing probable cause, the officer must testify as to how his or her training and experience applies to the specific circumstances he or she observed. Here, the officer did not offer any testimony to explain what particular elements of the transaction he saw caused him to believe, based on his experience and training, that it was a sale of drugs. He instead relied on his prior observations of other transactions — the details of which he did not provide or compare — and his perspective regarding the nature of the neighborhood as a “high drug crime location.” However, both factors are rooted in past unrelated events, and do not, in and of themselves, establish a fair probability that this particular transaction was criminal in nature, absent other surrounding indicia of criminality.9

*239By discarding our Dunlap precedent so soon after it was decided, the Majority has, in my view, forsaken our time-honored adherence to the doctrine of stare decisis, without sufficiently compelling justification. The doctrine of stare decisis “declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same even though the parties may be different.” Commonwealth v. Mitchell, 588 Pa. 19, 72 n. 20, 902 A.2d 430, 462 n. 20 (2006). As we have long recognized, this rule is not merely procedural in nature. Rather, we have pronounced it to be:

a principle of great magnitude and importance .... absolutely necessary to the formation and permanence of any system of jurisprudence];,] ... [without [which] we may fairly be said to have no law, [since] law is a fixed and established rule, not depending in the slightest degree on the caprice of those who may ... administer it.

McDowell v. Oyer, 21 Pa. 417, 423 (1853) (emphasis original). The rule, therefore, fulfills the laudatory purposes of “pro-mot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contributing] to the actual and perceived integrity of the judicial process.” Stilp v. Commonwealth, 588 Pa. 539, 599 n. 31, 905 A.2d 918, 954 n. 31(2006) (quoting Randall v. Sorrell, 548 U.S. 230, 243, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (Opinion Announcing the Judgment of the Court)); see also Payne v. Tennessee, 501 U.S. 808, 849, 111 S.Ct. 2597, 2621, 115 L.Ed.2d 720 (1991) (Marshall, J. dissenting) (“Stare decisis is essential if case-by-case judicial decision-making is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results[.]” (quoting Appeal of Concerned Corporators of Portsmouth Savings Bank, 129 N.H. 183, 227, 525 A.2d 671, 701 (1987) (Souter J., dissenting))). Thus, a sudden abandonment of past precedent without compelling reasons is strongly disfavored, since it undermines the finality of all our holdings and our ability to put the *240bench, bar, and public on notice of the state of the law. See Commonwealth v. Woodhouse, 401 Pa. 242, 253, 164 A.2d 98, 104 (1960) (“Stare Decisis should not be trifled with. If the law knows no fixed principles, chaos and confusion will certainly follow.”); see also Commonwealth v. Poundstone, 200 Pa.Super. 416, 188 A.2d 830, 832 (1963) (“Rules of law, carefully considered and definitely established, should not be lightly discarded. If the courts are to wave like wheat in the wind, the whims of the particular judges of the moment and not rules of law will control the destinies, lives and fortunes of our people.”)

The rule of stare decisis, like all legal maxims, is, of course, not absolute. When it becomes “clear that the reason for a law no longer exists and modern circumstances and justice require a change, and no vested rights will be violated, a change should be made.” Woodhouse, 401 Pa. at 253, 164 A.2d at 104; see also Ayala v. Philadelphia Bd. of Pub. Ed., 453 Pa. 584, 305 A.2d 877 (1973) (holding that, where the reason for a rule of law has disappeared over time, stare decisis may be set aside). Likewise if the rule of law was based on an erroneous premise, or represents an anomaly by establishing a principle of law not in accord with the prevailing body of law, stare decisis does not demand rigid adherence to the rule. Woodhouse, 401 Pa. at 253, 164 A.2d at 104; Lewis v. WCAB, 591 Pa. 490, 919 A.2d 922 (2007).

None of these considerations is present, however, in the instant case. Dunlap was decided a mere two years ago; has not been eroded by any successive decisions of this Court; and its facts cannot be materially distinguished from the facts of the instant matter. Thus, stare decisis strongly militates against reversing Dunlap since it would serve to unsettle an area of law to which we very recently spoke and which we have long been consistent in our jurisprudence. It is jurisprudentially unsound to disturb an area of law to which our Court has so recently opined. Gardner v. Consol. Rail Corp., 524 Pa. 445, 451, 573 A.2d 1016, 1018 (1990).10

*241Moreover, the need to preserve stability in the law is especially potent in this instance since the decision being upended is one which confirms basic constitutional protections of individual rights. See Florida Dept. of Health and Rehabilitative Serv. v. Florida Nursing Home Ass’n, 450 U.S. 147, 154, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (Stevens, J., concurring) (“The presumption [of validity of recently decided cases] is an essential thread in the mantle of protection that the law affords the individual. Citizens must have confidence that the rules on which they rely in ordering their affairs ... are rules of law and not merely the opinions of a small group of men who temporarily occupy high office.”); c.f Gerlach v. Moore, 243 Pa. 603, 608, 90 A. 399, 400 (1914) (even where there has been and continues to be disagreement over the proper interpretation of our state constitutional provisions, decisions in prior cases must be “accepted as settled law, if the doctrine of stare decisis is to have any binding force in determining questions involving constitutional construction”).

The fundamental legal principle undergirding our Dunlap decision was the simple recognition that each individual’s Fourth Amendment protection against unlawful seizure can only be secured by requiring that there be observable objective factors giving rise to a fair probability of his or her involvement in criminal activity before he or she may be arrested, and that an officer’s subjective belief, no matter how well intentioned or strongly felt because of past individual experience or training, does not constitute an objective factor upon which a finding of probable cause for arrest may be based. An insistence that probable cause be determined only *242by observed objective facts and circumstances suggesting a fair probability of criminal activity is not a new or anomalous principle of law, as it has been firmly rooted in our jurisprudence since the time of Lawson. Indeed, our Court acknowledged and accepted this principle nine years prior to Lawson in 1964 because it was the federal constitutional standard governing the legality of a warrantless arrest in existence since 1949. See Commonwealth v. Negri, 414 Pa. 21, 30-31, 198 A.2d 595, 600 (1964) (“The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists where the facts and circumstances within ... the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” (emphasis added and internal quotations omitted) (quoting Brinegar v. U.S., 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949))). The reason for this requirement was not erroneous at its inception, nor has it been rendered obsolete over time. Dunlap merely reaffirmed the durable legal standards articulated in Lawson and Banks which are necessary to enforce Fourth Amendment protections, and no cogent and compelling reason now exists to dilute these protections by deviating from those decisions.

I therefore must dissent.

. Since I conclude, for the reasons set forth herein, that Appellant's conviction should have been reversed, I deem it unnecessary to address the second issue discussed in the majority opinion regarding the precedential effect of our Court's per curiam orders.

. Although not specifically referring to it as such, the Lawson requirement that all of the factual circumstances surrounding the alleged criminal activity be viewed in conjunction with one another to determine if probable cause to arrest was present has now come to be known as the "totality of the circumstances" test. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (reaffirming the use of the test to determine whether probable cause existed for issuance of search warrant and articulating its parameters). The Gates “totality of the circumstances” analysis was subsequently explicitly adopted by our Court, and it now governs all judicial evaluations of whether sufficient probable cause existed for a lawful warrantless arrest. See Commonwealth v. Rodriguez, 526 Pa. 268, 272-73, 585 A.2d 988, 990 (1991); Commonwealth v. Clark, 558 Pa. 157, 164, 735 A.2d 1248, 1252 (1999).

. During that time, our Court reversed the Superior Court no less than five times via per curiam orders which cited only to Banks as the reason for reversal. See Commonwealth v. Albino, 541 Pa. 424, 664 A.2d 84 (1995); Commonwealth v. Lopez, 543 Pa. 321, 671 A.2d 224 (1996); Commonwealth v. Carter, 543 Pa. 510, 673 A.2d 864 (1996); Commonwealth v. Crowder, 548 Pa. 392, 697 A.2d 262 (1997); In re C.D., 556 Pa. 437, 729 A.2d 70 (1999).

. Then a Superior Court judge, I joined Judge Johnson's dissenting opinion.

. Justice Baldwin's opinion was joined, in full, by Justices Baer, Chief Justice Cappy, and Justice Fitzgerald. Justice Saylor authored a separate concurring opinion which was joined by Chief Justice Cappy and Justice Fitzgerald. Then-Justice, now-Chief Justice, Castille and Justice Bakin each authored a separate dissent.

. This principle was also articulated, inter alia, in the cases of Commonwealth v. Clark, 558 Pa. 157, 165, 735 A.2d 1248, 1252 (1999); Banks, 540 Pa. at 453, 658 A.2d at 752, and Commonwealth v. Evans, 546 Pa. 417, 423, 685 A.2d 535, 537 (1996).

. The Superior Court in the instant case affirmed on the basis of the trial court opinion and agreed with the trial court that its opinion in Dunlap was “controlling." Commonwealth v. Thompson, No. 1521 EDA 2006, unpublished memo at 4 (Pa.Super. filed June 19, 2007). As the Majority Opinion notes, we had not yet issued our decision in Dunlap when the lower courts in the instant case issued their respective decisions.

. While Justice Saylor agreed that a police officer's experience was a relevant factor in determining probable cause, his thoughtful concurrence also addressed a number of other matters, including concern about how much weight should be given to the fact that the location of the conduct was in a “high crime area” given its attendant ramifications, the relevance of experience and training by itself in establishing probable cause given the fact that many gestures and motions commonly associated with drug use are equally consistent with innocent legitimate, non-criminal activities; and his agreement with the majority’s reaffirmance of Banks as “a legitimate and reasoned effort to implement the compromise embodied in the probable cause standard between safeguarding citizens from undue interference with their constitutionally-protected liberty and privacy interests, and the affordance of fair leeway to the government in its enforcement of the law and protection of our communities.” Dunlap, 596 Pa. at 160-61, 941 A.2d at 680 (Saylor, J., concurring).

. As aptly noted by Professor Margaret Raymond of the University of Iowa School of Law:

Police testimony in the neighborhood cases ... focuses ... on the number of times the observed behavior, in the officer’s experience, correlated with confirmation that the suspect was engaged in criminal conduct, without suggesting anything about how often comparable suspicions were proved groundless or how often those observed behaviors correlated with persons generally believed by the officer to be law-abiding. Asking how often the suspect's behavior in a particular neighborhood correlates with unlawful behavior without asking how often it correlates with lawful conduct creates a skewed and incomplete picture of the probability of criminal conduct generated by this evidence.

Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 132-33 (1999) (footnotes omitted); see also Wayne R. LaFave, 2 Search and Seizure, Fourth Edition § 3.6, 368 n. 224 (quoting James R. Acker, Social Sciences and the Criminal Law: The Fourth Amendment, Probable Cause, and Reasonable Suspicion, 23 Crim.L.Bull. 49, 79 (1987)): (“Three reasons suggest caution in allowing the nature of an area to carry weight in assessing whether activity that occurs in the area is likely to be criminal in nature. The dangers are those of committing the ecological fallacy (impermissibly attributing the characteristics of the area to individuals within the area); of legitimizing an impermissibly high incidence of false positives (arresting innocent parties), compounded by the likely correlation of factors such as race and socioeconomic status with the erroneous seizure decisions; and of giving valid definition to the concept of a 'high-crime area,' especially since police behavior can largely produce the measure or indicators of such areas (the problem of a 'self-fulfilling prophecy’).”

. The Justices of our Court have often set aside our differences with precedent out of respect for the principle of stare decisis. See, e.g., *241Commonwealth v. Bennett, 593 Pa. 382, 391 n. 5, 930 A.2d 1264, 1269 n. 5 (2007) (Chief Justice Cappy, writing for the Court, noting his earlier disagreement with Commonwealth v. Hernandez, 572 Pa. 477, 817 A.2d 479 (2003), but applying it as settled law nonetheless); Yates v. Township of McKean, 593 Pa. 436, ___, 931 A.2d 639, 640 (2007) (Eakin, J., concurring) (relying on the precedential value of Burger v. School Board of the McGuffey School District, 592 Pa. 194, 923 A.2d 1155 (2007), despite his continuing disagreement with the majority’s decision therein); In re Weidner, 595 Pa. 263, 273-74, 938 A.2d 354, 361 (2007) (Saylor, J., concurring) (expressing continuing belief that In re Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992), was wrongly decided but joining majority opinion out of respect to doctrine of stare decisis).