Commonwealth v. Banks , 2017 Pa. Super. 182 ( 2017 )

J-A11021-17
2017 Pa. Super. 182
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NAVARRO BANKS
No. 922 MDA 2016
Appeal from the Order Entered May 9, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0002158-2015
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
OPINION BY MOULTON, J.: FILED JUNE 12, 2017
The Commonwealth of Pennsylvania appeals from the May 9, 2016
order entered in the Lycoming County Court of Common Pleas granting
Navarro Banks’ motion to suppress physical evidence. Because we conclude
that the trial court abused its discretion in granting Banks relief on grounds
not asserted in his motion to suppress, we reverse.
The facts of this case are undisputed. On July 21, 2015, Pennsylvania
Board of Probation and Parole Agent Kriger1 received an anonymous tip that
Banks was violating his parole. Based on this allegation, Agent Kriger and
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*
Former Justice specially assigned to the Superior Court.
1
Agent Kriger’s first name is not evident from the record. In its
opinion, the trial court errantly refers to Agent Kriger as Agent “Kriner.”
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Agent Tracy Gross2 (together, “the Agents”) went to Banks’ parole-approved
residence and knocked on the door. Banks answered the door and spoke
with the Agents on the front porch; Agent Gross did not see any contraband
from the porch and could not remember whether the front door was open
during the conversation. The Agents asked Banks whether “he had anything
in his home that would violate his parole.” N.T., 4/29/16, at 5. Banks
admitted that he had a firearm and some synthetic marijuana in the house.
Based on that admission, the Agents entered the residence and located the
firearm, which was hidden behind Banks’ bedroom door, and the synthetic
marijuana, which was in a bag in the living room. The Agents then called
the police, who obtained a search warrant and seized the firearm, the
synthetic marijuana, seven cell phones, a digital scale, and another bag
containing synthetic marijuana.
Banks was arrested and charged with possession with intent to
manufacture or deliver a controlled substance (“PWID”), possession of a
controlled substance, possession of drug paraphernalia, and persons not to
possess firearms.3 On March 9, 2016, Banks filed a motion to suppress,
arguing that the Agents “lacked reasonable suspicion to search [his]
residence since [the] search was based on an unreliable, uncorroborated,
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2
Agent Gross was not assigned to supervise Banks, but was “merely
assisting.” N.T., 4/29/16, at 6.
3
35 P.S. §§ 780-113 (a)(30), (a)(16), (a)(32), and 18 Pa.C.S. §
6105(c)(1), respectively.
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anonymous tip,” and, as such, the physical evidence recovered from that
search should be suppressed as fruit of the poisonous tree. Mot. to Supp.,
3/9/16.
On April 29, 2016, the trial court held a hearing on the motion. Banks’
argument at the hearing was consistent with the argument in his written
motion. His counsel stated that “the simple fact that [the Agents] went to
[Banks’] home based on an anonymous tip[,] . . . with the purpose of trying
to find contraband, forms the basis of an unreasonable search because the
tip was not corroborated.” N.T., 4/29/16, at 10. In response, the trial court
asked counsel about the Agents’ initial contact with Banks:
THE COURT: Okay, let me ask you a question.
[BANKS’ COUNSEL]: Yes, Your Honor.
THE COURT: Are you saying that they’re not allowed to
even go to his house, knock on the door, and ask him
questions? Because that’s what they said. I mean it’s –
let me try to ask the question differently. It seems like the
testimony was, hey we got this tip he was doing stuff he
shouldn’t have been doing, so we decided to check it out.
We go to his door, we knock on his door, he comes out, we
ask him a question, he answers the question. It’s not a
search at that point, is it? I – I guess that’s what your
contention is, though.
[BANKS’ COUNSEL]: Our contention is that at that point
they have made contact solely because of the
uncorroborated anonymous tip. This isn’t a regularly
scheduled home visit, this isn’t even a random home visit.
Because the sole purpose was due to this anonymous tip
that it tainted the whole process, including going to his
home and submitting him to questioning about what might
be found within.
THE COURT: Okay, so . . . your argument is that they’re
not allowed to even go the home and ask him questions
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based on an anonymous tip, because the asking of
questions constitutes a search?
[BANKS’ COUNSEL]: We would submit that without
corroborating the evidence – or the . . . tip itself, that it
was improper for them to place Mr. Banks – to go to Mr.
Banks’ [] residence and yes, and to – to put him under
questioning concerning that uncorroborated tip.
THE COURT: That’s my point. You have to use the search
and/or seizure language. So what you’re saying is when
they went there, knocked on the door, and he came out
and they started asking him questions, that it was a
search?
[BANKS’ COUNSEL]: Yes, we would argue that either he
was seized at that point, and was placed – and that –
THE COURT: Search or a seizure?
[BANKS’ COUNSEL]: Yes.
Id. at 10-11. The Commonwealth then argued that the Agents’ actions were
a “knock-and-talk, which is backed up by case law for police officers,” and
that Banks’ admission gave the Agents reasonable suspicion to search under
section 6153(d)(6) of the Prisons and Parole Code.4 Id. at 12. The trial
court then summarized the Commonwealth’s position:
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4
Section 6153(d)(6) provides:
The existence of reasonable suspicion to search shall be
determined in accordance with constitutional search and
seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors,
where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
(Footnote Continued Next Page)
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THE COURT: So what you’re saying is they had the right
to go there. At the time they went they knocked on the
door, he came out, and they just talked to him, and there’s
nothing that prevents them from just talking to him, and
once he admitted that there were firearms – that there
was a firearm and synthetic marijuana, that gave them the
reasonable suspicion to then conduct the search?
[COMMONWEALTH]: Correct, Your Honor . . .
Id. at 12-13.
On May 9, 2016, the trial court granted the motion to suppress. In its
opinion, the trial court outlined the parties’ respective positions but
concluded that “[t]he determinative issue in this case . . . involves the level
of interaction the parole agents had with [Banks] once they went to his
home.” Trial Ct. Op., 5/9/16, at 3. The trial court explained that it was
granting the motion to suppress because the Agents initiated an
investigative detention of Banks when they questioned him on the porch.
Id. Finding that the interaction was not a “mere encounter,” the trial court
concluded that “[t]here clearly was a level of ‘official compulsion to stop or
_______________________
(Footnote Continued)
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of agents with the offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the conditions
of supervision.
61 Pa.C.S. § 6153(d)(6).
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respond[,]’” and that there was no “credible information” to support the
investigative detention. Id. at 3-4.
On June 7, 2016, the Commonwealth filed a timely notice of appeal.5
On appeal, the Commonwealth asserts that the trial court erred in granting
Banks’ suppression motion. Our standard of review on such matters is well
settled:
When the Commonwealth appeals from a suppression
order, this Court follows a clearly defined scope and
standard of review. We consider 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. This Court must
first determine whether the record supports the factual
findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions
drawn from those findings. In appeals where there is no
meaningful dispute of fact, as in the case sub judice, our
duty is to determine whether the suppression court
properly applied the law to the facts of the case.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013) (internal
citations and quotation marks omitted).
The Commonwealth argues that the trial court “erred in granting the
Motion to Suppress because [Banks] failed to raise, in his Motion to
Suppress, an allegation that [he] was illegally detained.” Cmwlth.’s Br. at
14. The Commonwealth notes that Banks’ motion to suppress “simply
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5
The notice of appeal included a certification pursuant to Pennsylvania
Rule of Appellate Procedure 311(d) “that the granting of the Motion to
Suppress terminates or substantially handicaps the prosecution of this case.”
Not. of App., 6/7/16.
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alleged that the search of the residence was illegal as the [A]gents lacked
reasonable suspicion to search the residence based on an anonymous tip,”
and did not raise the issue of whether Banks had been seized at the outset
of the conversation on his porch. Id. at 14-15. Thus, the Commonwealth
asserts that Banks waived this issue by failing to include it in his motion to
suppress.6 We agree.
Pennsylvania Rule of Criminal Procedure 581(D) requires that a motion
to suppress “state specifically and with particularity the evidence sought to
be suppressed, the grounds for suppression, and the facts and events in
support thereof.” Pa.R.Crim.P. 581(D) (emphasis added). Our decision in
Commonwealth v. Whiting, 767 A.2d 1083 (Pa.Super. 2001), is
instructive here. In Whiting, the trial court granted the defendant’s motion
to suppress statements as well as physical evidence found in the defendant’s
home and vehicle. 767 A.2d at 1086. However, the defendant did not raise
in his suppression motion any issues regarding the physical evidence found
in the vehicle, and the defendant did not amend his motion to include this
issue. Id. We concluded that the trial court abused its discretion:
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6
In response, Banks argues that the Commonwealth waived its waiver
argument by failing to raise it before the trial court. Banks’ Br. at 7-8 (citing
Pa.R.A.P. 302). We disagree. The Commonwealth has the right to “appeal
from an interlocutory order in a criminal action ‘where the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution.’” Commonwealth v. Andre, 17 A.3d 951, 956
(Pa.Super. 2011) (quoting Pa.R.A.P. 311(d)). “Our Supreme Court has
consistently held that the rule applies to pretrial rulings that result in the
suppression . . . of Commonwealth evidence.” Id.
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Without raising this issue in any form of objection or
motion, Whiting effectively waived his challenge to the
search of the car. We have been unable to find any
evidence of an oral motion to amend Whiting’s pre-trial
suppression order, nor do the docket sheets refer to such a
filing.
Accordingly, it was improper, and therefore an abuse of
discretion for the trial court to voluntarily raise this issue
and rule upon it in Whiting’s favor where he never raised
the issue in any suppression motion, let alone with
specificity and particularity. Moreover, it was improper for
the reason that the court never took any testimony or
evidence at the suppression hearing on this issue and,
therefore, could not make an informed decision under
Pa.R.Crim.[P.] 323(i).[7] Finally, the Commonwealth
was not able to fulfill its burden of presenting
evidence on the issue and establishing that such
challenged evidence was not obtained in violation of
the defendant’s rights. In fact, the transcribed
testimony of the suppression hearing only touches upon
the consent to search Whiting’s car.
Id. at 1087-88 (citations and footnote omitted) (emphasis added).
Here, Banks did not argue that he was illegally seized in his motion to
suppress; he argued only that police lacked reasonable suspicion to search
the residence. Banks also did not amend his motion to raise the seizure
issue, either orally or in writing.8 Because Banks failed to argue that he was
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7
Rule 323 was amended on March 1, 2000 (effective April 1, 2001)
and renumbered Rule 581; no substantive changes have been made to
paragraph (i).
8
At the hearing, it appears the trial court attempted to determine
whether Banks was arguing that the encounter on the porch was a search or
a seizure, but stopped short of asking counsel about any investigative
detention. N.T., 4/29/16 at 10-13. Nevertheless, despite the trial court’s
suggestive questions, Banks neither asserted this issue in his motion nor
moved to amend his motion to include the issue. As a result, the
(Footnote Continued Next Page)
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illegally seized, the Commonwealth had no opportunity to respond to that
argument at the hearing.9 See Whiting, 767 A.2d at 1088. Accordingly,
we conclude that the trial court abused its discretion in suppressing the
physical evidence found in Banks’ residence on grounds not asserted in
Banks’ motion.10
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
_______________________
(Footnote Continued)
Commonwealth did not, and had no need to, present evidence or argument
directed to the question whether Banks’ conversation with the agents on the
porch rose to the level of an investigative detention.
9
At oral argument before this Court, the Commonwealth stated that
had it been on notice that Banks was claiming he had been unlawfully
seized, it would have presented testimony and argument directed to that
issue.
10
Because the trial court did not grant relief based on Banks’
reasonable suspicion argument, we need not address that issue.
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