1 Cite as: 55 5 U

. S. ____ (2008)

R OBERTS , C. J., dissen t in g 

## SUPREME CO URT O F THE UNI TED STATES

PENN SYLVANIA v. NATHAN DUNLA P

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF P E NNSYLV A N IA , EASTE RNDISTRICT

No. 07–1 48 6. Dec i ded Oc t o ber14, 200 8 The petition for a writ of certiorari is denied. C HIEF J UST I CE R OBER T S , with whom J USTICE K ENN E DY joins, dissenting from denial of certiorari. North Philly, May 4, 2 001. Officer Sean Devl in, Narcotics St rike F o rce, was working the morning sh ift. Un dercover surve illance. The neighborhood? Tough as a thre edollar stea k. Devlin knew. Five years on the beat, nine months with the Strike Force. H e ’d made fifteen, twenty drug busts i nthe neighborhood. Devlin spotted him: a lone man onthe corner. Anothe r approached. Qui c k exchange of wo rds. Cash handed over; small object s handed back. Each man then quickly on his
own way. Devlin kne wthe gu y wasn’t bu ying bus toke ns. He radioed a description and Officer Stein picked up th e buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Jus t another day at the office.
* * * That was not good enough for the Pennsylvania Supreme Court, which h e ld in a divided decis i on that th e police lacked probable cause to arrest the defendant. The Court concl u ded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, give n that the officer did notactually se e the dru g s , there was no tip froman inf o rmant, and the defendan t did not a t

tempt to flee. 941 A. 2 d671, 679 (2007). I disagree with that conclu sion, and dissent from the denial of certiorari. A dru gpurchase was not the only possible explanation for the defendant’s conduct, but it was certainly likely enough2 PENNSYLV A N IA v. DUNLAP

R OBERTS , C. J., dissen t in g to give rise to probable cause. The probab le-cause standard is a “nontechnical conception that deals with the factual and practical consider ations of everyday life on which reasonable and pruden t men, not legal technici ans, act.” Marylandv. Pringl e , 5 40 U. S. 366, 370 (2003) (internal quotation marks omitte d). What is req u ired is sim p ly “a reasonable groun dfor belief of guilt,” id. , at 371 (same)—a “probability, and not a prima facie showing, of criminal activity,” Illino i sv. Gates
, 462 U. S. 2 13, 235 (1983) (same). “[A] police officer may draw inferences based on his ownexperience in deciding whether probable cause exists,” Ornelas v. Unit e dSt at es , 517 U. S. 6 90, 700 (1996), including inferences “that mi ght well elude an untrained person,” United S t a t esv. Corte z , 449 U. S. 411, 418 (1981). On the fact s of this case, I think the police clearly had probable cause to arre st the defe ndant. Anofficer wi th drug interd iction experience in the neighborhood saw two

men on a s treet corner—with no apparent familiarity or prior intera ction—make a quick h and-to-hand exchange of cash for “ ‘small objec t s.’ ” 941 A. 2d, at 673. This exchange took place in a high-crime neighborhood known for drug activity, far from any legitimate busines ses. Perhaps it is possib l e to imagine innocen texplanations for this conduct, bu t I cannot come up with any remotely as likely as the drug transaction Devlin believed he h a d witnessed. In any event, an officer is not required to eliminate all innocent ex planations for a suspic ious s e t of f

a cts to have probable cause to make an arrest. As we explained in Gates , “[i]n making a determination of probab le cause the relevant inquiry is not whether particular conduct is ‘innocent’ o r‘guilty,’ but the degree of suspicion that a t

taches to particular types of noncriminal acts.” 462 U. S., at 244, n. 13. The Pennsylvania Supreme Court emphasized that the police did not actually see any drugs. 941 A. 2d, at 679

.3 Cite as: 55 5 U

. S. ____ (2008)

R OBERTS , C. J., dissen t in g But Offi cerDevlin and his partn er were conducting u n

dercover surveillance. From a dis t ance, it would be difficult to have a clear view of the sm all objects t hat changed hands. As the Commonwealth explains in its petition for certiorari, the “classic” drug transaction is a h and-to-hand exchange, on the street, of cash forsmall objects. Pet. for Cert. 5–8. The Penn sylvania Supreme Court’s decision will make it more difficult for the police to c o nduct drug interdiction in high-crime areas, unless they employ the riskier pra ctice of ha ving under cover officers actuall y make a purchase or sale of drugs. The Penns ylvania Court also noted that th e defendant did not flee. 941 A. 2d, at 671. Flight is hardly a prerequisite to a finding of probable cause. A defendant may well decide that the odds of escape do not justify addi ng another charge to that of dr ug possessi on. And of course there is no suggestion in the record that the de fendant ha d any chance to flee—he was caught redhanded. Aside from its importance for law enforcement, this question h a s divided state courts, a traditional ground

warran t ingreview on certiorari. S. Ct. Rule 10(b). The New Jersey Supreme Court has held that an “experienced narcotics officer” had probable cause to make an arrest when—in avacant lot in a high-drug neigh b orhood—he “saw defendant and his compani on give money to [a] thir d person in exchange for small unk nown objects.” Sta t e v. Moore , 181 N. J. 40, 46–47, 853 A. 2d 903, 907 (2004). Th e Rhode Island Supreme Court reached the same conclusio n in a case where the defendants—through t h eir car windows—exch anged cash for a small “bag of su spected narcotics.” Sta t ev. Cas t ro , 891 A. 2d 8 48, 851–854 (2006). I n contrast, th e Colorado Supreme Court held th at a hand-tohand excha n ge of unknown objects did not give the police probable cause to make an arrest, even where one of the men was a known drug dealer. People v. Ratcliff , 77 8 P. 2d 1371, 1377–1378 (1989). All these cases have unique4 PENNSYLV A N IA v. DUNLAP

R OBERTS , C. J., dissen t in g factual wrinkles, as any probabl e-cause case would, but the core fact pattern is the same: experienced police officers observing hand-to-hand exchanges of cash for small, unknown objects in high-crime neighborhoods. The Pe nns ylvani a Su preme Cou rt spe c ula t e d th a t su ch

an e xcha n g e coul d h av e bee npe rfectl y in no ce nt. Bu t as J u dge Friendly ha sp o int e d out, “ [ j ] u d ge s ar e notr e qu ir ed to exhibit a naiv et é fr om whichor di na ry ci ti ze ns a r e f r ee

. ” Un i t ed S t a t es v. Sta n c h ic h , 5 50 F. 2 d 1 2 9 4
, 130 0 (CA 2 197 7). Ba se d n o t onl y o n com m on s e nse bu t als o his e xpe rien ce as a na rco ti c s offi ce r an d h i s pre vio us wo rk in the nei ghb o rho o d , Officer D e vl in co nclu de d tha twh at ha ppen e d

onth at s t r e et c o rn er wa s p r obab l y adrug tra ns acti on. That is by far the mo st re asonable co nclusio n , e v en though o u r

ca ses on l y r e qui re i ttobe a re aso n ablecon c l u s i on. I would grant certiorar i and reverse the judgment of the Pennsylvania Supreme Court.