J-S40041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANTE COOPER                               :   No. 728 EDA 2017


               Appeal from the Order Entered February 10, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003403-2016


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 06, 2018

       The Commonwealth of Pennsylvania (Commonwealth) appeals1 from the

trial court’s order suppressing physical evidence (drugs and U.S. currency)

following the arrest of Appellee, Dante Cooper. After careful consideration,

we affirm on the basis of the trial court opinion.

       On February 24, 2016, uniformed Philadelphia Police Officer Floyd Shade

and his partner, Officer Phil Cherry, were driving an unmarked car on the 1300

block of South Dover Street in South Philadelphia en route to the 1500 block

of Dover Street to investigate drug sales.         Officer Shade is a fifteen-year

veteran of the police department, an experienced narcotics officer who had

participated in 300 narcotics investigations in his career with more than 50 of
____________________________________________


1 The Commonwealth has certified that the suppression order terminates or
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d);
Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40041-18



those investigations conducted in that same area in South Philadelphia. As

the officers proceeded down the 1300 block of South Dover Street, they

encountered an idling Ford Windstar minivan that was blocking their lane of

travel.   Both the driver’s seat and passenger’s seat of the minivan were

occupied. The passenger-side door of the van was open and two women were

standing by the open door. Officer Shade observed one of the women lean

into the van, stick both of her hands inside, and then remove only her left

hand from the van. She used two of her left-hand fingers to place something

in her pants’ pocket. Officer Shade could not see what, if anything, the woman

placed in her pocket.

        Officer Shade immediately activated his emergency lights and audibly

notified the minivan occupants and the women standing by the van that they

were not free to leave. The officer told Cooper, the passenger in the minivan,

specifically, “Don’t move. Sit Still.” N.T. Suppression Hearing, 1/31/17, at 16.

Officer Shade then called for a back-up officer, who frisked the woman who

reached into the van; he found a Percocet pill in her possession. Officer Shade

then removed Cooper from the van and placed him under arrest. A search

incident to Cooper’s arrest uncovered numerous Oxycodone, Percocet, other

prescription pills, a chunk of cocaine, and $1,653.00 in U.S. currency on his

person. Cooper was charged with possession of a controlled substance with

the intent to deliver;2 he filed a pre-trial motion to suppress. After a hearing

____________________________________________


2   35 P.S. § 780-113(a)(30).

                                           -2-
J-S40041-18



on the motion, the court determined that the police lacked probable cause to

search the woman and, thus, granted Cooper’s motion to suppress.              The

Commonwealth filed a timely motion for reconsideration. The court vacated

its suppression order and scheduled a hearing.        At the conclusion of the

reconsideration hearing, the court reaffirmed its prior order granting

suppression.

     The Commonwealth filed a timely notice of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statement of errors raised on appeal.               The

Commonwealth presents one issue for our review:         “Could an experienced

narcotics officer lawfully arrest defendant after: (1) observing a woman in a

high drug [and] crime area withdrawing her hand from where defendant was

seated in a car that was blocking a traffic lane; (2) observing her stuff an

object in her pocket; and (3) verifying that the object was contraband?”

Commonwealth’s Brief, at 6.

     Our standard of review of a trial court’s order granting a defendant’s

motion to suppress evidence is well-settled:

     When the Commonwealth appeals from a suppression order, the
     appellate court considers 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
     uncontradicted. The suppression court’s findings of fact bind an
     appellate court if the record supports those findings. The
     suppression court’s conclusions of law, however, are not binding
     on an appellate court, whose duty is to determine if the
     suppression court properly applied the law to the facts. The
     appellate court defers to the trial court’s findings of fact, because
     it is the fact-finder’s sole prerogative to pass on the credibility of
     the witnesses and the weight to be given to their testimony.


                                     -3-
J-S40041-18



Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2011) (citations

and internal quotation marks omitted).

       After reviewing the parties’ briefs, the certified record on appeal, and

relevant case law, we agree that the court properly suppressed the evidence

uncovered from Cooper’s arrest.                When Officer Shade stopped Cooper’s

vehicle and, as he approached the van, told Cooper, “Don’t move, sit still,”

the occupants of the car and the women standing by the car reasonably

believed they were not free to leave. Thus, they were effectively in custody.

Although Officer Shade had extensive experience in narcotics investigations

and the incident occurred in a high-crime/drug area, based on a totality of the

circumstances, he did not have probable cause to arrest at that point. See

Commonwealth v. Whitlock, 69 A.3d 635 (Pa. Super. 2011) (even where

officers had experience in narcotics investigations and were in high drug/crime

area, because officers could not see what was contained inside wrapped

package dropped in basket, it was not immediately apparent to officers men

were engaged in illegal activity and, therefore, no probable cause existed

under totality of circumstances).        Therefore, the subsequent search incident

to arrest of Cooper was illegal and all evidence that flowed from his arrest was

properly suppressed.       We rely upon the cogent opinion,3 authored by the

____________________________________________


3 To the extent that the Commonwealth contends the trial court impermissibly
based its reconsideration decision on a different legal theory than that put
forth in its Pa.R.A.P. 1925(a) opinion and upon which it initially granted the
motion to suppress, we note that we agree with the trial court’s initial



                                           -4-
J-S40041-18



Honorable Jeffrey P. Minehart, to affirm the trial court’s suppression order.

We instruct the parties to attach a copy of Judge Minehart’s decision in the

event of further proceedings in the matter.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/18




____________________________________________


suppression conclusions which mirror the court’s analysis and legal
conclusions detailed in its opinion. Commonwealth v. Thompson, 778 A.2d
1215, 1223 n.6 (Pa. Super. 2001) (it is well settled that we may affirm trial
court on different grounds).


                                           -5-
0023_Opinion

                                                                                                 Circulated 07/11/2018 10:03 AM
                                                                                                                     FILED
                                                                                                               OCT 2 5 2017
               IN THE COURT OF COMMON PLEAS OF PHILADELPillA COUNTY                                       Office of Judicial Rer.ords
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                              Appeals/Post Tnat
                                  CRIMINAL TRIAL DIVISION



               COMMONWEALTH OF PENNSYLVANIA,                           COURT OF COMMON PLEAS
                            Appellant                                  PHILADELPHIA COUNTY

                              vs.                                      NO.: CP-51-CR-0003403-2016
                                                                            CP·5T-CR·000340J.2016 �   .   .-   - -
               DANTE COOPER                                                                  0�mm v C00per, Dante




                                                         OPINION                llllllll/ll/1/llll II I/I
                                                                                  _    8021229891
                      The Commonwealth has appealed the grant of the above-namei-d;fendarit's

               Motion to Suppress Physical Evidence. For reasons set forth below, it is suggested that the

               order suppressing evidence be affirmed.

               PROCEDURAL HISTORY

                      Dante Cooper (hereinafter "defendant"), was charged with Possession of a

               Controlled Substance (35 P.S. § 780-113 §§ Al6) and Possession with Intent to Deliver a
                                                                                                                        "
               Controlled Substance (35 P.S. § 780-113 §§ A30), following his arrest on February 24.

               2016 On January 31, 2017, defendant litigated a motion to suppress physical evidence -

               a multitude of drugs and $1653 cash - which this Court granted at the conclusion of the

               suppression hearing. On February 3, 2017 the Commonwealth filed a motion seeking

               reconsideration of this Court's suppression order, which was denied after argument on

               February IO, 2017.

                       On February 24, 2017, the Commonwealth filed a notice of appeal and thereafter

               a requested Pa.R A.P. l 925(b) statement, wherein they assert that this Court erred in

               holding that there was no probable cause to arrest and search defendant, and as a result the
Court erred when granting defendant's motion to suppress physical evidence. Specifically,

the Commonwealth asserts:

              Based on the officers' training and experience, and the
              search of the female buyer seen interacting with the
              defendant, probable cause existed to stop and search the
              defendant after officers observed what they believed to be
              a narcotics transaction.

FACTUAL HISTORY

        On February 24, 20 I 6, Philadelphia Police Officer Floyd Shade and his partner,

Officer Phil Cherry, were in full uniform driving in an unmarked car on the 1300 block of

South Dover Street in South Philadelphia around 2:20 p.m., to another hundred block of

Dover Street to investigate reports of drug sales when they were impeded by a minivan

blocking the single dnving lane. (N.T 1/31/17, 5-6, 12-13). The front passenger door of

the minivan was open and occupied, as was the driver's seat, and there were two women,

one older and one younger standing by the open door       (N.T. l/31/17, 6-8, 26). The older

woman leaned into the minivan and stuck both her hands inside of it. (N.T. 1/31/17. 8).

Officer Shade then saw her left hand come out of the van and using two fingers on that

hand the woman stuffed whatever was in her hand into a pocket of her sweatpants.        (NT.

1/31 /17, 8-9). Officer Shade stated that he could not "see anything" at that point, including

what, if anything, the woman put into her pocket or the exchange of U.S. currency. (NT.

1/31/17, 9, 23).

       Officer Shane further testified that he has been a police officer for fifteen years and

that was an experienced narcotics officer who has participated in 300 narcotics

investigations s in his career, more than fifty of which were conducted in the area where

he observed the minivan. (N.T. 1/31/17. 9-10). He added that that that particular area of



                                              2
South Philadelphia was a high crime area and that in his experience ninety percent of illegal

narcotics sales were "drive-up" sales. (N.T 1/31117. 10, 12).

        Based on what he saw the older woman do with her hand, Officer Shade

immediately activated his vehicles emergency lights and audibly notified the persons

present that they were not free to leave. ( N.T. l/31/17, 16). He also told the passenger in

the minivan, "Don't move. Sit still." but did not remove him from the minivan. ( N.T

1/31/17, 27).

       Officer Shade then called a back-up officer, who arnved in about a minute

thereafter and stopped the woman, who was then frisked and found to possess a Percocet

pill. (N.T. 1/31/17, 12-13, 31). Officer Shade then pulled the passenger, defendant herein,

out of the minivan and arrested him. (NT. 1/31/17, 12-13) Officer Shade said that he

decided to pull defendant out of the minivan and place him under arrest at that moment

because of the discovery of the Percocet pill in the woman's possession, which caused him

to conclude, based on his experience as a police officer, that he had observed a narcotics

transaction between the woman and defendant. (N. T. 1 /31 /17, 14 ). He then conducted a

search incident to arrest of defendant and recovered numerous Oxycodone, Percocet,

Volume [sic] pills, a chunk of crack cocaine, and $1,653.00. (NT. 1/31/17, 14-15).

DISCUSSION

       As noted above, the Commonwealth asserts that police had probable cause to

arrest and search defendant based on what Officer Shane observed in light of his

experience and the discovery of the Percocet pill on the woman This Court disagrees

and suggests that the order granting the motion to suppress be affirmed.




                                             3
        When the Commonwealth appeals an adverse ruling of a suppression court, they

are "required to meet the same burden as a defendant who has lost in the court below,,

Commonwealth v. Hamlm, 463 A.2d 137, 139 (Pa. Super. 1983). Thus, a reviewing court

must consider only the non-moving party's witnesses, and so much of the evidence for the

prosecution which appears to be uncontradicted in the context of the record as a whole. Id

        In Pennsylvania, three types of interactions between a police officer and a civilian

have been defined:

                Traditionally, this Court has recognized three categories of
                encounters between citizens and the police. These categories
                 include (I) a mere encounter, (2) an investigative detention,
                and (3) custodial detentions The first of these, a "mere
                encounter" (or request for information), which need not be
                supported by any level of suspicion, but carries no official
                compulsion to stop or to respond. The second, an
                "investigative detention" must be supported by reasonable
                suspicion; it subjects a suspect to a stop and a period of
                detention, but does not involve such coercive conditions as
                to constitute the functional equivalent of an arrest. Finally,
                an arrest or "custodial detention" must be supported by
                probable cause.


Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998) (citing Commonwealth v.                 .•

Polo, 759 A.2d 372, 375 (2000)).

        Instantly, this Court determined that when the two police officers, who were

uniformed, ordered that everyone "Don't move. Sit still." they subjected defendant to a

custodial detention and that the discovery of the Percocet pill was of no relevance to the

issue of whether the police had probable cause to arrest defendant. The standard as to

whether an interaction with police rises to the level of a custodial detention, i e., an arrest,

is an objective one based on the totality of the circumstances. Commonwealth v. Gwynn,

723 A.2d 143, 148 (Pa. 1998).         Due consideration must be given to the reasonable


                                               4
                                                                                                   ·.1




impression conveyed to the person subject to the seizure rather than the strictly subjective

view of the police officer or the person subject to the seizure. Id Several factors are

considered   in   determining whether a detention          is investigative    or     custodial.

Commonwealth v. Busch, 713 A.2d 97, 101 (Pa. Super. 1998). These factors include "the

basis for the detention; its length; its location; whether the suspect was transported against

his or her will, how far and why, whether restraints were used; whether the law enforcement

officer showed, threatened or used force; and the investigative methods employed to

confirm or dispel suspicions " Id. The Superior Court, applying a conjunctive test, has

stated that" ... an arrest exists when (1) the police intended to take appellant into custody,

and (2) appellant was subjected to the actual control and will of the police "

Commonwealth v        Hannon, 837 A.2d 551, 553, 554 (Pa. Super. 2003), citing

Commonwealth v. Lovette, 450 A.2d 975, 978 (Pa. 1982) The Court further stated that the

"test is an objective test, and all circumstances must be viewed 'in the light of the

reasonable impression conveyed to the person subjected to the seizure.' " Hannon, 837

A.2d at 554, quoting Commonwealth v. Butler, 729 A.2d 1134, 1137 (Pa. Super. 1999).

       Finally, the well-established standard for what constitutes an arrest in Pennsylvania

was set forth in Commonwealth v. Bosurgi, 190 A.2d 304 (Pa. 1963), as follows:


              Was Bosurgi under arrest at the time of the search of his person?
              Officers are not required to make any formal declaration of arrest
              or use the word "arrest" nor to apply manual force or exercise "such
              physical restraint as to be visible to the eye" in order to arrest a
              person. An arrest may be accomplished by "any act that indicates
              an intention to take [a person] into custody and that subjects him to
              the actual control and will of the person making the arrest."

Bosurg1, 190 A.2d at 311 ( emphasis in original) ( citations omitted).




                                              5
        In Hannon, supra the Superior Court held that an arrest occurred where police

approached a car in which the defendant was seated, ordered him out of the car and

immediately restrained him with handcuffs, reasoning that "[a] person subjected to this

seizure would reasonably believe that he was under the control of the police and that the

police intended to take him into custody when he was ordered out of the car at gunpoint

and restrained with handcuffs." Hannon, 837 A.2d at 554. TheCourt further opined that

the fact that the police did not call the detention an arrest was irrelevant, since there is no

requirement that police use the word "arrest" for the action to constitute an arrest. Hannon,

837 A.2d at 554, citing Commonwealth v. Bosurgi, 190 A 2d 304, 311 (Pa. 1960).

       Our Supreme Court has affirmed lower court findings of an arrest in a variety of

circumstances, including those short of the actual physical restraint of an individual that

occurred here.    See, M·, Commonwealth v. Nelson, 411 A.2d 740, 741 (Pa. 1980)

(custodial detention found where defendant summoned to patrol car by officer); Steding v.

Commonwealth, 391 A.2d 989 (Pa. 1978) (arrest found where defendant not permitted to

leave baggage claim area); Commonwealth v. Greber, 385 A.2d 1313 (Pa. 1978) (arrest

found where; by positioning of his automobile, officer blocked defendant's automobile

from moving).

       In Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987), the Court concluded that

the defendant was placed under arrest during the investigation of a theft when the police

summoned him up a flight of stairs believing that they had discovered proceeds. Likewise,

in Commonwealth v. Woodson, 493 A.2d 78 (Pa. Super. 1985), this Court used the

definition of arrest in Bosurgi and held that Woodson was under arrest while he was being




                                              6
detained and questioned by police in an alley behind a house where a burglary had been

reported.

        It is apparent that the police conduct in the present case was more coercive and

intrusive than the police action in both Duncan and Woodson. If an arrest occurs when the

police stop and question a suspected burglar behind a victimized residence, or when police

summon a suspected thief up a flight of stairs, then there can be no doubt that defendant

was seized when he was ordered not to move and two police officers entrapped him in the

minivan. Any person, if confronted by the circumstances herein, reasonably would have

assumed that he was not free to leave and was under arrest. Defendant was not free to

ignore the order and had to comply.

       Consequently, because this was an arrest police needed probable cause to justify

their actions and, simply put, probable cause did not exist. "In order to justify custodial

detention, the police must have probable cause to believe than an offense has been or is
                                                                                                 '·
being committed." Dunaway v. New York, 442 U.S. 200, 216 (1979)." Commonwealth v

Brown, 565 A.2d 177, 178- 79 (Pa. Super. 1989). In Pennsylvania, the standard for

evaluating whether probable cause exists is the 'totality of the circumstances' test set forth

in Illinois v. Gates, 462 U.S. 213 (1983). See Commonwealth v. Baker, 518 A.2d 802 (Pa.

1986); Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). The bench mark of a warrantless

arrest is the existence of probable cause, namely, whether the facts and circumstances

which are within the knowledge of the officer at the time of the arrest, and of which he has

reasonably 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.

Wagner, 406 A.2d 1026 (Pa. 1979); Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa.



                                              7
                                                                                             ..
                                                                                              I

                                                                                              I




1991 ). See also Commonwealth v. Fromal, 572 A.2d 711, 717 (Pa. Super. 1990);

Commonwealth v. Butler, 512 A.2d 667, 669-670 (Pa. Super. 1986). It is important to note

that a police officer's belief that probable cause to arrest exists must be linked with an

observation of suspicious or irregular behavior on the part of the particular defendant

seized.    Commonwealth v. Nicks, 253 A.2d 276, 280 (Pa. 1969); Commonwealth v.

Wilson, 655 A.2d 557 (Pa. Super. 1995).

          Instantly, police did not have probable cause to arrest defendant at the moment

they ordered defendant not to move while he was sitting in the minivan. Although Officer

Shade observed the woman withdraw her left hand from inside the minivan and then stick

two fingers inside a pocket of her sweatpants, he observed nothing else. He did not see

anything passed to the woman or anything in her hand and he did not observe the woman

pass anything back to either defendant or the driver. In addition, although Officer Shade

testified that he was able to discern that the woman was interacting defendant inside the

van, this Court deemed that testimony not credible. See N.T. 1/31/17, 25-26. In essence,

all the officer observed was the woman appear to place something in her pocket. That was

not enough to effectuate an arrest under the law because the officer did not observe an

exchange of items or a transaction of any sort.

          In Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995), the Supreme Court held

that probable cause cannot arise from the observation of a transaction involvmg an

exchange of money for unidentified property, even when afterward the defendant flees

from the police. Banks, 658 A.2d at753-54 (Pa. 1995). In holding that the police had no

probable cause to arrest Banks, the Banks court stressed that probable cause cannot arise

from a police officer observing a "single, isolated exchange of currency for some



                                             8
                                                                                                 'I
                                                                                                 '
                                                                                                     .

unidentified item or items, taking place on a public street corner at midday, and where

appellant fled when approached by the officer." Id. The Banks court noted that additional

factors • such as actually observing the drugs themselves or containers commonly used to

hold drugs, seeing multiple, complex suspicious transactions, or responding to a citizen's

complaint or an informant's tip   »   must be present to give rise to probable cause, and such

additional factors were not present in the case. See id. Instantly, there was no exchange

and thus, the facts in favor of suppression were greater than in Banks.

        Here, the additional factors the Commonwealth states established probable cause

were the experience of Officer Shane, his bald claim that the area was a high crime area, ·

and the discovery of the Percocet pill in possession of the woman .. None of these factors,

established probable cause under the totality of circumstances test.

        While a     police officer's training and experience are "relevant factors" in

determming whether probable cause exists, Commonwealth v. Thompson, 985 A.2d 928,

935 (Pa. 2009), the Pennsylvania Supreme Court cautioned that an officer's testimony in

this regard must not simply reference "training and experience" without an explanation of
                                                                                                         'l
how that training and experience specifically applies to the situation at hand. Id. at 935.               '

Training and experience is only relevant if there is some connection to the issue at hand.

More than simply testimony of the number of years an officer has spent on the force is

needed. Id.

       Instantly, the officer did not see an exchange of items, including U.S currency,

what, if anything, the woman placed in his pocket, or objects usually connected to the illicit

sale of narcotics. Thus, the officer's experience was irrelevant in this Court's view with

respect to the issue whether it gave the officers probable cause to arrest defendant even



                                                9
when considered in conjunction with the other factors then existing. It is important to note

that the officers were not even investigating drug sales on that block and were heading to

another location when they saw the woman lean into the vehicle and then stick her hand

inside her pocket.

        The Court further concluded that the fact that Officer Shade indicated that the area

was a high crime area, when considered with the other factors then existing, did not

establish probable cause. That is because the officer claimed that all of South Philadelphia
                                                                                                ,!·,
is a high crime area thereby diluting his testimony in that regard. Moreover, because             I

                                                                                                ·1
                                                                                                   I
Officer Shade did not see a transaction or exchange, items related to drug sales, or anything

remotely suggesting that a crime was taking place, his assertion that it was a high crime

area was of little relevance even considering the other factors. See Thompson, supra

(indicating that officer's experience was a relevant factor in determining that probable

cause existed based on the officer's observation of a transaction).                               .,
                                                                                                       \

       Finally, the discovery of the Percocet tablet occurred after defendant had already
                                                                                                   ,1

been arrested, rendering it irrelevant to the question whether probable cause existed at the

time defendant was arrested, namely when the officers prohibited defendant from leaving                :
                                                                                                      I'1
                                                                                                           .
the minivan

       Even though the officer was probably testifying in good faith regarding his

perceptions, simple '" good faith on the part of the arresting officer is not enough. If

subjective good faith alone were the test, the protections of the Fourth Amendment would

evaporate, and the people would be 'secure in their persons, houses, papers and effects, in

the discretion of the police ["] Terry, 392 U.S. at 21-22( citations and footnotes omitted).




                                             IO
        In Commonwealth v. Greber. 385 A.2d 1313 (Pa. 1978), police officers were

conducting surveillance in a high crime area at night when they saw a juvenile in a parking

lot. When a car pulled into the lot, the juvenile approached and spoke with the occupants.

One of them handed the j uvenile a bag, which he held up to his face as if to smell it. He

then passed money to someone in the car. Knowing from experience that narcotics are

commonly smelled before payment is made, the officer believed he had witnessed a drug

transaction. Despite the "high crime area" and the officer's experience with behavior

typical, in the officer's opinion, of a drug transaction, the Supreme Court, , found that there

was not even reasonable suspicion to stop the defendant, let alone probable cause to arrest

him.

In Commonwealth v. Tither, 671 A.2d 1156 (Pa. Super. 1996), an officer, while on patrol

in a high drug and prostitution crime area, heard someone suddenly yell "5-0, 5-0" (street

jargon warning of the presence of police), and then observed the defendant in that case,

who had been reaching into a car, leave the car and enter a building upon hearing the "5-
                                                                                                    ,i

O" call, at which time the car immediately pulled away. Even though the officer suspected
                                                                                                    .
                                                                                                    I•
that he had witnessed an aborted drug transaction, this Court held that sufficient facts did

not exist to even support the investigatory detention of that defendant.

        These cases all support the suppression of the evidence in this matter and based on

their application to the present matter, it is clear no error occurred in finding that the arrest

of defendant was illegal.


        Finally, because the warrantless arrest of appellant was illegal everything that

flowed therefrom, including the search of defendant and the seizure of the drugs and

U.S.currency was tainted and required the suppression of evidence under the fruit of the


                                               11
poisonous tree doctrine. See Commonwealth v. Gibbs, 563 A.2d 1244, 1246 (Pa. Super.

1989) (holding that the fruit of the poisonous tree doctrine excludes evidence seized as a

result of illegal police conduct).

       Accordingly, for all of the foregoing reasons, it is suggested that the order of this

Court granting defendant's motion to suppress be affirmed.

CONCLUSION

       Based on the foregoing, it is respectfully suggested that the order of this Court

granting defendant's motion to suppress be affirmed.


                                                        By the Court,

Date:�

                  fL

                                                                                               'I




                                            12
