If you are charged with an illegal drug crime, or even a firearms charge, it’s important that your criminal defense attorney look at the probable cause issue

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.

Our criminal defense law firm represents a number of accused individuals who are charged with illegal drug crimes involving the possession or the possession with the intent to distribute or deliver illegal drugs and narcotics in Pennsylvania and New Jersey. Frequently our clients are arrested following an observed sale on the city streets of Philadelphia or in one of its neighboring counties, Montgomery, Delaware, Bucks, or Chester. Drug crimes are extremely serious in Pennsylvania and a person can be charged with either a felony or misdemeanor offense depending on the circumstances surrounding the arrest and the evidence obtained following it.

Probable Cause & Drug Transactions

A major issue in these illegal narcotic cases and also cases involving illegal firearms is probable cause to arrest a person for these crimes. Frequent readers of our blog understand that there is a difference between reasonable suspicion and probable cause and that reasonable suspicion is a lower form of probable cause. Remember, police need probable cause to search and/or arrest and only need reasonable suspicion to stop, detain and frisk.

Single Drug Sales & Probable Cause – Commonwealth v. Dunlap Decision

In Pennsylvania, and in other jurisdictions like New Jersey, a frequent scenario involving the possession and use of illegal drugs is the observed single transaction of “unknown items”. Prior to 2009, the controlling decision on this issue was Commonwealth v. Dunlap. The Dunlap decision was a Pennsylvania Supreme Court case that stood for the principle that ever single commercial transaction between citizens on a street corner involving unidentified property does not give probable cause to support a warrantless arrest.  The Court in Dunlap held that, a trained police officer who observed a single transaction for an unknown object in a high crime area did not provide probable cause to arrest or search the individual for these illegal items. The Supreme Court in Dunlap specifically said that a police officer’s training and experience, without more, could not be used in the totality of the circumstantial analysis for a probable cause determination.

2009 – Com v. Thompson overrules Dunlap – A single transaction is enough for probable cause


In 2009 however, the Pennsylvania Supreme Court made the decision in Commonwealth v. Thompson which overruled Dunlap and said that a police officer’s experience is a relevant factor in determining probable cause. This means that a single transaction, in and of itself, provides enough evidence for a search and arrest. While the officer’s experience in and of itself is not enough, that experience combined with what the officer actually observed on the day in question (aka – nexus) can provide probable cause.   Keep in mind that if there is no probable cause, all contraband found following an illegal search is inadmissible meaning that it can’t be used!

What to remember if you’re charged with an illegal drug charge

If you are charged with an illegal drug crime, or even a firearms charge, it’s important that your criminal defense attorney look at the probable cause issue; this is often the best way to obtain a good result in your case.  Remember the Thompson decision does not stand for the principle that an officer’s experience is enough for probable cause but that a nexus must be established between that experience and what actually happened. The Thompson decision not only overruled the Dunlap case but also the case of Commonwealth v. Banks (1995), where again, the court said probable cause did not exist where an officer observed a transaction for unknown items and the suspect later running following that exchange.

Bonus information – Running From Police & Probable Cause

Keep in mind that even if a person runs, the flight by itself does not give reasonable suspicion or probable cause in Pennsylvania, which is different than the federal standard, which the United States Supreme Court clarified in the case of California v. Hodari (1991). Under Article 1 Section 8 of the Pennsylvania Constitution, a police officer must demonstrate either probable cause to seize or reasonable suspicion to stop and frisk. If neither of these exists, any item that is thrown or discarded by a suspect, even if it turns out to be contraband, is illegally obtained and thus inadmissible in court (can’t be used against you). Finally, please understand that unprovoked flight in a high crime area can provide police with reasonable suspicion to detain a suspect because Pennsylvania courts have ruled that a police officer’s approach of a suspect is only a mere encounter and so the unprovoked flight isn’t a reaction to an illegal stop and so that flight is a legitimate factor in determining reasonable suspicion. For more information on crimes involving illegal drugs and firearms I encourage you to keep reading my blogs and subscribe to my monthly newsletter.

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