Commonwealth v. Martinez

CERCONE, Judge,

dissenting.

I respectfully dissent. Under the circumstances of this case, I would affirm the trial court’s decision which denied appellant’s motion to suppress evidence obtained incident to a search allegedly performed without probable cause.

The majority skirts several important facts that were brought out before the suppression court. First, appellant, Janet Martinez was known to the two policemen. Under ordinary circumstances, she would often approach them and converse with them. On the particular occasion in question, as soon as she spotted the two policemen, Ms. Martinez went in the opposite direction in an attempt to avoid them. Second, Officer Lee had been assigned to permanent detail and had made numerous drug arrests in the area. He observed a group of people congregating on a street corner in this high drug area. Although such activity would be innocent in and of itself, this specific street corner in question was personally known to the officer to be an area where drug transactions took place.

*135While people may congregate in public without violating any law, such conduct in this instance was also consistent with that of drag trafficking. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986) (wherein we held that the fact that a suspect’s activity may be consistent with innocent behavior does not alone make a detention and limited investigation illegal because reasonable suspicion standard is less stringent than probable cause standard and permits an investigatory stop when facts within officer’s knowledge and his reasonably drawn inferences support a fair suspicion that criminal activity may be afoot). Thus, it was reasonable for Officer Lee to approach Ms. Martinez to see whether a drag transaction was, in fact, occurring.

Upon the arrival of the uniformed police, the group scattered into different directions with Ms. Martinez scurrying north. Law enforcement officers may rely on their knowledge of the characteristics of the area as well as an attempt to evade police contact when determining that it is appropriate to stop a suspect and question him. Commonwealth v. Fiore, 281 Pa.Super. 1, 6-7, 421 A.2d 1116, 1119 (1980). See also Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988) (wherein we held that police officer who saw suspect carrying a television set at 2:00 a.m. was entitled to make a temporary investigatory stop when the suspect had twice walked away upon seeing officer’s police car and officer knew that numerous burglaries had occurred in that area).

In the instant case, the police knew: (1) that this was a high drag trafficking area; (2) that the particular street corner in question was often the site of drug transactions; and (3) that Ms. Martinez usually approached and conversed with them as opposed to avoiding them. These facts gave the police sufficient reason to follow Ms. Martinez. As they pulled up alongside her, Officer Lee testified that he noticed a large bulge under Ms. Martinez’s jacket that she appeared to be holding by having her hands in her pockets. In an attempt to investigate further, Officer Lee asked Ms. Martinez to step up against the unmarked police car. Ms. *136Martinez bent her torso over the hood of the car in an apparent attempt to keep the bulge under her jacket. Upon asking her to step away from the car, Ms. Martinez dropped a plastic bag from under her jacket. The plastic bag contained numerous vials which appeared to contain a white chalky matter that the officers believed to be a controlled substance. Officer Lee then placed Ms. Martinez under arrest and proceeded to search further and found four more clear plastic bags, each containing numerous vials. It was later determined that there were one thousand vials, each containing cocaine. Thus, the culmination of all of the facts as they presented themselves to the police, justified the investigatory stop of Ms. Martinez. I would find that it was not until after the discovery of the cocaine that Ms. Martinez was arrested.

Thus, I would find that we cannot ascribe to a police officer, highly trained in the field of narcotics, complete ignorance of what is familiar to him and learned over a period of time about conduct and customary events. For this reason, I must respectfully dissent.