On November 18, 2012 at approx 1:00pm, police observed the defendant in the Luk Oil parking lot located at 1200 Wingohocking Aveue. The defendant was observed making a hand to hand transaction with another male. As police approached, the defendant became aware of the police and began acting very nervous and started walking a lot faster. Upon approaching the male, police said “ Hey Pal” and instantly the defendant took off running. While fleeing, police then observed the Defendant discard something into the street, which was never recovered. Further pursuit of the Defendant led police to his parents house. The Defendant entered the location and police were right behind him in hot pursuit. While in the house, the defendant began to resist police commands to stop and show hands. He actively kicked and punched at police until being brought to the ground with control holds. Police pulled the Defendant out of the house after struggling multiple times. While on the front porch the Defendant still actively resisted with kicks. Police managed to get one hand cuffed but the defendant broke free and began flailing the hand with one open cuff. Police tried to step on the other loose un-cuffed arm while trying to regain control of the arm that was cuffed. Police used several kicks to the arm and shoulder to gain control. When police finally gained control, recovered from the Defendants right jacket pocket was a clear sandwich baggie containing 10 baggies of a white chunky substance, alleged crack cocaine, and 1 purple ziplock baggie containing green leafy substance, alleged marijuana. The Defendant was placed under arrest and transported to AEMC for treatment then released. The Defendant was then transported to East Detectives for processing.
The Defendant retained Perry de Marco, Sr. as his defense lawyer. On Tuesday August 20, 2013, Perry de Marco, Sr. filed a motion to suppress evidence on behalf of the Defendant. The basis of the motion was that the aforementioned arrest was entirely illegal. Perry de Marco Sr argued that the facts of this case fell squarely within a long line of Pennsylvania cases which hold that “As a general rule, a search conducted without a warrant is presumed to be unreasonable unless it can be justified under a recognized exception to the search warrant requirement.” Commonwealth v. Agnew, 411 Pa. Super. 63, 74, 600 A.2d 1265, 1271 (1991). "One such exception is a search which is incident to a lawful arrest." Id. "It is axiomatic that the validity of a warrantless arrest is determined by considering 'whether, at the moment the arrest was made, the officer had probable cause to make it,' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), and the person arrested is believed to be the guilty party." Commonwealth v. Mallory, 418 Pa.Super. 614, 616, 614 A.2d 1174, 1176 (1992), appeal denied, 533 Pa. 632, 621 A.2d 578 (1993). As this Court stated in Agnew, supra.:
"In this Commonwealth, 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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The benchmark 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.
Finally, the courts have noted that it is only the probability of criminal activity that is the standard of probable cause. This means less than evidence which would justify conviction or even a Prima Facie showing a criminal activity but more than mere suspicion. Commonwealth v. Mallory, 418 Pa.Super. 514, 616, 614 A.2d 1174, 1176 (1992), appeal denied, 533 Pa.632, 621 A.2d 578 (1993).
In the instant case, we reiterate the sentiments expressed in Vassiljev, Hunt, Greber, and Agnew that no citizen may be arrested merely for passing an unidentified item to another citizen on a public street. For probable cause to exist, there must be other facts which, together with a suspicious exchange of unidentified items, which support a reasonable belief that the exchange is drug related. The significant facts in this case are that at the time of the alleged hand to hand exchange, the police were never able to identify what items if any where actually being exchanged. Furthermore, they stated that the defendant while feeling, discarded something into the street but that item was never recovered. There was a police pursuit, however, the law has always been that flight in and of itself is never sufficient to constitute probable cause. Under these circumstances, Perry de Marco, Sr argued that not only was the arrest performed without an arrest warrant, presumptively, unreasonable, but also that the police never had facts and circumstances which wold lead a reasonable police officer to believe that a crime had been committed. Every transaction that takes place on a public street does not give rise to probable cause to arrest. The learned Judge held the case under advisement to consider not only Mr. de Marco’s oral argument but also to read and consider the extensive memorandum of law which he prepared on the Defendant’s behalf. On February 24, 2014 the Judge ruled that the arrest was illegal as was the resulting search and seizure. The Judge suppressed the narcotics seized from the Defendant. In view of the fact that the District Attorney no longer had evidence to present, she dismissed all charges against the Defendant.
Perry de Marco, Sr. has practiced Criminal Law in Philadelphia and the surrounding counties for thirty-eight years and has tried hundreds of drug cases. If you should need his help, please do not hesitate to call.