Com. v. Salter, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE SALTER,
Appellant No. 1017 WDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009421-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 05, 2015
Tyrone Salter appeals from the judgment of sentence of two and one-
half to five years incarceration followed by seven years probation, which was
below the mitigated range of the sentencing guidelines. Sentence was
imposed after the trial court convicted Appellant of one count of possession
of a controlled substance with intent to deliver and two counts of possession
of a controlled substance. We affirm.
Appellant’s convictions are premised upon the following evidence
adduced by the Commonwealth at Appellant’s combined suppression hearing
and nonjury trial and accepted as true by the trial court. Sheriff’s Detective
Richard Manning testified as follows. On March 28, 2012, a team of five
men from one of two Criminal Fugitive Squads of the Allegheny County
Sheriff’s Office executed a bench warrant for Appellant’s co-defendant, Bruce
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Lucas, at 1350 Herman Street, Pittsburgh. Lucas was wanted for violating
his probation on a robbery charge. The team consisted of Detective
Manning, Detective Richard Venezia, Detective Richard Dwyer, Sergeant
Clark,1 and Detective Ron Stokes. Detective Stokes covered the rear of the
address, Detectives Manning and Venezia went to the front door, and the
two other detectives stayed in front of the house.
Normally, a member of the squad would announce that they were from
the sheriff’s office and present to execute a warrant, but, in this case, no
announcement was made. Detective Manning explained that they dispensed
with the warning because three to four cameras were pointed at the house
to detect who was approaching it. In addition, a window to the left of the
front door was opened, and Detective Manning “could smell a strong
pungent odor of marijuana. It was a fresh marijuana smell, as we
approached the door.” N.T. Non-Jury Trial Transcript, 10/30/13, at 23.
Finally, Lucas was wanted for violating probation in a felony case so the
sheriffs anticipated that he might attempt to flee.
Detectives Manning and Venezia knocked loudly and immediately
“heard a lot of movement within the address.” Id. at 21. After they knocked
a second time, a male voice asked, “Who is it.” Id. at 26. Detectives
Manning and Venezia responded, “Sheriff’s Office with a warrant. Answer
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1
Detective Manning did not provide Sergeant Clark’s first name. N.T. Non-
jury Trial Transcript, 10/30/13, at 18.
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the door.” Id. A few seconds later, Detective Manning heard a metallic
sound as if someone “was racking a gun, very close to the front door.” Id.
At that point, the detectives attempted to kick in the front door, but it
was barricaded. They continued to announce that they were sheriffs with a
warrant and wanted the door to be opened. The only response was the
sound of “people running around within the residence.” Id. at 27. Detective
Stokes radioed Detective Manning that two males had just jumped from the
back porch of the house and were scrambling down a steep hill in the back
yard that led to Spring Garden Avenue. Detective Manning left his post at
the front of the house and observed the two men fleeing down Spring
Garden Avenue. Detective Manning articulated that, at that point, he
concluded that the they were engaged in criminal activity.
Detectives Manning and Venezia entered a vehicle, went to find the
two fleeing men, and “saw them both walking down Spring Garden Avenue.”
Id. at 33. The two people, Appellant and his other co-defendant Melvin
Crew, matched “the individuals [who Detective Manning] saw going down
the hill in their clothing” as well as a description that had been provided by
Detective Stokes. Id. Appellant’s clothing was in disarray, grass stained,
and dirty, and he was not wearing shoes.
When Detective Venezia started to approach him, Appellant
immediately started to run. Crew ceased his flight at that point and was
handcuffed by Detective Manning. Another police officer immediately arrived
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at the scene, and Detective Manning joined Detective Venezia in the chase.
As he started to run, Detective Manning heard Detective Venezia yell, “He is
coming back down to you.” Id. at 38. Detective Manning then observed
Appellant come towards him and attempt to scale a nearby fence. Detective
Manning grabbed Appellant and handcuffed him.
Detective Venezia arrived at the scene shortly thereafter with a purple
velvet bag used to package Crown Royal liquor. Detective Venezia testified
that Appellant threw away the bag while the detective was pursuing him.
N.T. Continued Suppression Hearing, 11/25/13, at 9. The bag contained
96.7 grams of cocaine and 6.65 grams of marijuana. Appellant was in
possession of $2,928 while Crew had $2,053. Lucas was located inside 1350
Herman Street. There was a stipulation that the Commonwealth would have
presented testimony that the cocaine was possessed with intent to deliver.
On appeal, Appellant presents the following contention, “Did the trial
court err by failing to suppress evidence obtained following a warrantless
search of a bag discarded by [Appellant] due to the unlawful coercive action
of police, when [Appellant] was arrested without probable cause, and
officers had opportunity to obtain a search warrant?” Appellant’s brief at 3.
Herein, the suppression court concluded that Appellant abandoned the
bag while the detectives were in the process of attempting to effectuate a
valid investigatory detention supported by reasonable suspicion pursuit to
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Terry v. Ohio, 392 U.S. 1 (1968). Initially, we outline our standard of
review in this context:
An appellate court's standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court's factual
findings are supported by the record, the appellate court is bound
by those findings and may reverse only if the court's legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to plenary
review.
Commonwealth v. Garibay, 2014 WL 6910879, 2 (Pa.Super. 2014)
(citation omitted).
Appellant’s first position is that the detectives needed to secure a
search warrant before they looked inside the bag to discover its contents.
As a general principle, the Fourth Amendment requires
that law officers obtain a warrant issued by a neutral magistrate
before they intrude into a place of privacy. However, an
exception to the warrant requirement exists when the property
seized has been abandoned. In Commonwealth v. Shoatz,
469 Pa. 545, 366 A.2d 1216 (1976), our Supreme Court
delineated the test employed to determine whether an
abandonment has occurred:
Abandonment is primarily a question of intent,
and intent may be inferred from words spoken, acts
done, and other objective facts. All relevant
circumstances existing at the time of the alleged
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abandonment should be considered. The issue is not
abandonment in the strict property-right sense, but
whether the person prejudiced by the search had
voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question
so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of
the search.
Id., 469 Pa. at 553, 366 A.2d at 1220.
Commonwealth v. Clark, 746 A.2d 1128, 1133-34 (Pa.Super. 2000)
(emphasis omitted). Thus, if Appellant discarded the bag in question, he
relinquished his expectation of privacy in that item and cannot contest the
validity of its search without a warrant.
Herein, Detective Venezia reported that while he was chasing
Appellant, Appellant threw away the purple velvet Crown Royal bag and
continued to flee. Therefore, he abandoned it. Commonwealth v. Byrd,
987 A.2d 786 (Pa.Super. 2009); Commonwealth v. Riley, 715 A.2d 1131
(Pa.Super. 1998). As Appellant did not retain a privacy interest in the item
that he threw away, he cannot contest the validity of its search without a
warrant.
Alternatively, Appellant claims that he was forced to abandon the bag
due to unlawful police action when he was arrested without probable cause.
If property is discarded as a result of unconstitutional police conduct, then a
defendant retains the ability to object to its search. Byrd, supra. The
record establishes that Appellant discarded the bag while he was being
chased by Detective Venezia and before he was restrained by Detective
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Manning. Hence, the causative factor in the abandonment was not
Appellant’s detention while was climbing the fence but his pursuit by
Detective Venezia. Id. The suppression court viewed this police interaction
as an attempt at an investigatory detention, and we concur with its
assessment as well as its conclusion that the interaction was supported by
reasonable suspicion.
Article I, § 8 of the Pennsylvania Constitution and the
Fourth Amendment to the United States Constitution both
protect the people from unreasonable searches and seizures.
Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)
(citation omitted). Jurisprudence arising under both charters has
led to the development of three categories of interactions
between citizens and police. Id. (citations omitted). The first, a
“mere encounter,” does not require any level of suspicion or
carry any official compulsion to stop or respond. The second, an
“investigative detention,” permits the temporary detention of an
individual if supported by reasonable suspicion. The third is an
arrest or custodial detention, which must be supported by
probable cause. Id. (citations omitted).
Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014). When we examine
which level of interaction has occurred, we “conduct an objective
examination of the totality of the surrounding circumstances.” Id. (citation
omitted). This test focuses “on whether the suspect has in some way been
restrained by physical force or show of coercive authority.” Id. (citation
omitted).
Herein, it is evident that, contrary to his position, Appellant was not in
police custody while he was being chased by Detective Venezia. While his
course of action was being dictated by the police, he had not been arrested.
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Hence, we view the interaction, as did the suppression court, as an attempt
at an investigatory detention.
We outlined the test utilized to determine whether police had
reasonable suspicion to support an investigatory detention in
Commonwealth v. Carter, 2014 WL 6756271, 3 (Pa.Super. 2014) (en
banc) (footnote omitted):
“The Fourth Amendment permits brief investigative stops
when a law enforcement officer has a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.” Navarette v. California, ––– U.S. ––––, –––
–, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014). It is
axiomatic that to establish reasonable suspicion, an officer “must
be able to articulate something more than an inchoate and
unparticularized suspicion or hunch.” United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
Unlike the other amendments pertaining to criminal proceedings,
the Fourth Amendment is unique as it has standards built into its
text, i.e., reasonableness and probable cause. See generally
U.S. Const. amend. IV. However, as the Supreme Court has
long recognized, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), is an exception to the textual standard of
probable cause. Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct.
1319, 75 L. Ed. 2d 229 (1983). A suppression court is required to
“take into account the totality of the circumstances-the whole
picture.” Navarette, supra. When conducting a Terry analysis,
it is incumbent on the suppression court to inquire, based on all
of the circumstances known to the officer ex ante, whether an
objective basis for the seizure was present. Adams v.
Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612
(1972).
Herein, police had much more than an unparticularized hunch that
Appellant was engaged in criminal activity. As reported by Detective
Venezia, and accepted by the suppression court, the conclusion that
Appellant should be investigated for possible criminal activity was premised
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upon the following objective facts giving rise to reasonable suspicion: 1) the
front door of the home was barricaded and its occupants would not open the
door to permit the sheriffs to execute their warrant; 2) in order to evade
police at the front door, Appellant jumped from a porch in the back,
scrambled down a hill, and started to run away; and 3) there was a strong
odor of raw marijuana emanating from the house which Appellant just fled.
Based on all of the circumstances known to the detectives, they had an
objective basis to investigate Appellant. Hence, we affirm the suppression
court’s conclusion that reasonable suspicion was present herein. Since the
abandonment of the bag was not the result of illegal police conduct,
Appellant’s claim must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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