Com. v. Davis, R.

J-S44026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD DAVIS,
Appellant No. 2264 EDA 2016
Appeal from the Judgment of Sentence June 21, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006550-2015
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 11, 2017
Appellant, Richard Davis, appeals from the judgment of sentence of
thirteen to twenty-six months of imprisonment entered in the Court of
Common Pleas of Delaware County on June 21, 2016, following Appellant’s
conviction by a jury of possession of marijuana and possession of marijuana
with intent to deliver (PWID”),1 the two charged offenses. We affirm.
The salient facts of this case are as follows: On July 13, 2015, at
approximately 3:50 p.m., Jeffrey Theobald, then a parole agent with the
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1
35 P.S. §§ 780-113(a)(16) and (30), respectively.
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Pennsylvania Board of Probation and Parole,2 entered Taylor Terrace, a
street in the City of Chester, Delaware County, and encountered Appellant,
whom he recognized as one of the parolees he supervised. Agent Theobald
had supervised Appellant for a year and knew that Appellant was on parole
for PWID and a firearm violation. Agent Theobald watched as Appellant
covered something in the trunk of his vehicle, which was stopped in the
middle of the road. N.T., 2/23/16, at 5–8.
When Appellant entered his car and drove away, Agent Theobald
followed him about one-half block, whereupon Appellant turned right, and
Agent Theobald proceeded on to the house of the parolee he was scheduled
to visit. Agent Theobald parked his car, waited to see if Appellant would
circle around, and when he did not, the agent exited his vehicle. At that
point, Agent Theobald again observed Appellant, who was now walking
through a vacant lot holding a white plastic bag. Agent Theobald proceeded
to the house of his parolee while he watched Appellant walk through the
empty lot. N.T., 2/23/16, at 8–10.
Agent Theobald observed Appellant carry the white bag, walk to an
overgrown bush, and then reappear without the bag. Agent Theobald
decided to approach Appellant and called out to him. Agent Theobald
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2
Agent Theobald currently is a criminal investigator with the Pennsylvania
Department of Corrections Office of Special Investigations and Intelligence.
N.T., 6/14/16, at 63.
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approached Appellant, asked him what he was doing, and Appellant
responded he was going to visit his cousin. Agent Theobald patted him
down, asked Appellant about the bag, and placed Appellant in handcuffs.
The agent went to the bush and retrieved the white bag, which contained a
large “freezer style” Ziploc bag containing suspected, and ultimately
confirmed, marijuana. Agent Theobald contacted City of Chester police, who
arrived within ten to fifteen minutes. While waiting for police, Appellant
asked Agent Theobald if he could “get rid of that for me.” N.T., 2/23/16, at
13–16, 18.
Appellant was arrested on July 13, 2015, and charged as indicated.
On December 21, 2015, Appellant filed a motion to suppress his statements
to Agent Theobald and the marijuana. Suppression Motion, 12/21/15. On
February 23, 2016, the court held a suppression hearing, at which Agent
Theobald was the sole witness. On April 6, 2016, the suppression court
granted the motion in part, suppressing statements made to Agent
Theobald,3 and denied the motion to suppress the physical evidence the
agent seized from the abandoned white bag. Order, 4/6/16, at 1. The
suppression court issued detailed findings of fact and conclusions of law. Id.
at 1–7.
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3
The Commonwealth has not appealed suppression of the statements made
to Agent Theobald; thus, that issue is not before us.
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A jury trial commenced on May 10, 2016. The jury indicated that it
was deadlocked on May 12, 2016, and the trial court declared a mistrial.
Appellant was retried on June 14, 2016, and on June 15, 2016, the jury
found Appellant guilty of both charges. The trial court sentenced Appellant
on June 21, 2016, to thirteen to twenty-six months of imprisonment for
PWID; the court held that the possession-of-marijuana conviction merged
for purposes of sentencing. Appellant filed a timely notice of appeal. Trial
counsel withdrew his representation, and present counsel entered his
appearance on Appellant’s behalf. Both Appellant, by present counsel, and
the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
Whether there was no reasonable suspicion for the parole
officer’s warrantless search of Appellant therefore Article I,
Section 8 of the Pennsylvania Constitution requires exclusion of
the tainted evidence. Commonwealth v. Arter, 63 MAP 2015,
2016 WL 7449357 (Pa. Dec. 28, 2016)[.]
Whether the Trial Court’s suppression of [Appellant’s]
statements based on Miranda calls for the controlled substances
to be suppressed because the same seizure giving rise to the
custodial finding began when [Appellant’s] P.O., whom he
recognized, started after him.
Appellant’s Brief at 5. We address the issues in tandem.
Appellant assails the suppression court’s refusal to suppress the
marijuana found in the white bag that Appellant secreted in the bush. In his
first claim, Appellant contends the record lacks evidence of reasonable
suspicion supporting Agent Theobald’s stop and search of Appellant.
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Referring to the statute detailing the supervisory authority of probation and
parole officers, Appellant inarticulately suggests the statute can be ignored
because the pat-down search was for weapons, not suspicion of a violation.
Appellant’s Brief at 10–12. In his second claim, Appellant maintains that the
court’s suppression of statements pursuant to Miranda v. Arizona, 384
U.S. 436 (1966), required suppression of the physical evidence as well
“because the same seizure giving rise to the custodial” interrogation tainted
the seizure of the abandoned bag of marijuana. Appellant’s Brief at 16–18.
The Commonwealth responds that Agent Theobald maintained his
supervisory relationship with Appellant, authorized by statute, 4 and had
reasonable suspicion to believe that Appellant possessed contraband or
other evidence of violations of the conditions of his supervision.
Commonwealth’s Brief at 14. It further maintains that Appellant freely
abandoned the white bag and “could not have retained ‘a reasonable
expectation of privacy’ when he left the bag in the bush.” Id. at 22.
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4
The Commonwealth has inexplicably referenced a nonexistent citation in
its brief; its reproduction of the content of the statute, however, reflects the
correct and relevant law at 61 Pa.C.S. § 6153. Commonwealth’s Brief at 14.
We note that Appellant’s reference to 42 Pa.C.S. § 9912 also is incorrect
because that statute details the supervisory authority of county probation
officers. Here, Agent Theobald testified that he was an agent for the
Pennsylvania Board of Probation and Parole at that time, and Appellant was
on parole for possession with intent to deliver a controlled substance and a
firearms violation. N.T., 2/23/16, at 8. Therefore, Agent Theobald derived
his supervisory authority from Section 6153. Nevertheless, the statutes
contain substantially similar provisions with regard to the issues raised
herein.
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When this Court addresses a challenge to the denial of a suppression
motion:
we are 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 the courts below are
subject to plenary review. Commonwealth v. Jones, 121 A.3d
524, 526–27 (Pa. Super. 2015) (citation omitted). When
reviewing the suppression court’s rulings, we consider only the
suppression record. In re L.J., 622 Pa. 126, 79 A.3d 1073,
1085 (2013) (“it is inappropriate to consider trial evidence as a
matter of course, because it is simply not part of the suppression
record, absent a finding that such evidence was unavailable
during the suppression hearing”).
Commonwealth v. Parker, 161 A.3d 357, 361–362 (Pa. Super. 2017)
(footnote omitted).
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012).
In Fourth Amendment jurisprudence, there are three categories
of interactions between citizens and the police:
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The first category is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicions, but carries no official compulsion
to stop or respond. The second, an “investigative
detention,” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such
coercive conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super.
2012) (citation omitted).
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to specific and
articulable facts leading him to suspect criminal activity is afoot.
In assessing the totality of the circumstances, courts must also
afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered collectively,
may permit the investigative detention.
Commonwealth v. Parker, 161 A.3d 357, 362 (Pa. Super. 2017) (citing
Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation
omitted)).
The suppression court determined that because Appellant freely
abandoned the marijuana in the overgrown bush before any contact with
Agent Theobald, “[t]he objective facts show that [Appellant] could not have
retained ‘a reasonable expectation of privacy’ when he left the bag in the
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bush.” Suppression Court Opinion, 4/6/16, at 6 (citing Commonwealth v.
Shoatz, 366 A.2d 1216 (Pa. 1976)). We agree.5
Proper disposition of this case necessarily involves the authority of
parole officers, in pertinent part, as follows:
(a) General rule.--Agents are in a supervisory relationship with
their offenders. The purpose of this supervision is to assist the
offenders in their rehabilitation and reassimilation into the
community and to protect the public. . . .
(b) Searches and seizures authorized.--
(1) Agents may search the person and property of
offenders in accordance with the provisions of this section.
(2) Nothing in this section shall be construed to permit
searches or seizures in violation of the Constitution of the
United States or section 8 of Article I of the Constitution of
Pennsylvania.
(c) Effect of violation.--No violation of this section shall
constitute an independent ground for suppression of evidence in
any probation and parole or criminal proceeding.
(d) Grounds for personal search.--
(1) A personal search of an offender may be conducted by
an agent:
(i) if there is a reasonable suspicion to believe that
the offender possesses contraband or other evidence
of violations of the conditions of supervision;
(ii) when an offender is transported or taken into
custody; or
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5
We note as well that Appellant concedes that the marijuana properly was
suppressed if “abandonment controls.” Appellant’s Brief at 16.
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(iii) upon an offender entering or leaving the
securing enclosure of a correctional institution, jail or
detention facility.
(2) A property search may be conducted by an agent if
there is reasonable suspicion to believe that the real or
other property in the possession of or under the control
of the offender contains contraband or other evidence
of violations of the conditions of supervision.
(3) Prior approval of a supervisor shall be obtained for a
property search absent exigent circumstances. No prior
approval shall be required for a personal search.
* * *
(6) 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.
(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.
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In the instant case, Agent Theobald, while in the course of his duties,
was going to visit a parolee, not Appellant. While en route, he observed
Appellant, who he recognized as another parolee he supervised, stopped in
the middle of the road, appearing to search for something in the trunk of his
car. Appellant drove off without intervention by Agent Theobald, who
continued to his intended destination. As the agent exited his vehicle and
approached his destination, he saw Appellant again, now walking through an
empty lot, carrying a bag. As Agent Theobald watched, Appellant walked
behind an overgrown bush and left the bag in the bush. Agent Theobald’s
view of Appellant was a mere chance encounter that initially arose on a
public street. The agent did not need any level of suspicion to observe
Appellant’s behavior in public. By the time Agent Theobald called out to
Appellant, approached him, patted him down, and handcuffed him, Appellant
had previously discarded the bag.
As the trial court noted, abandoned property that is not coerced by
illegal police action, “may be obtained by police and used for evidentiary
purposes.” Suppression Opinion, 4/6/16, at 6; see also Commonwealth
v. Ibrahim, 127 A.3d 819, 825 (Pa. Super. 2015) (“As a general rule, when
a person abandons property, the police may recover that property and use it
as evidence against a defendant. However, the abandonment cannot be the
result of illegal police conduct”), appeal denied, 138 A.3d 3 (Pa. 2016).
Indeed, in Commonwealth v. Tillman, 621 A.2d 148 (Pa. Super. 1993),
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police officers on routine patrol observed the defendant drop a container
later found to contain fifteen vials of cocaine. This Court determined that
evidence abandoned before police officers “showed any interest” in the
defendant was improperly suppressed as fruit of the poisonous tree. Id. at
150.
When analyzing the principles of abandonment of property, this Court
has reasoned as follows:
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
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 (emphasis added).
Commonwealth v. Johnson, 431 Pa. Super. 291, 294-96, 636
A.2d 656, 658 (1994) (quotation marks and some internal
citations omitted). In other words, “[a]bandonment can be
established where an individual’s surrender of possession of the
property constitutes such a relinquishment of interest in the
property that a reasonable expectation of privacy may no longer
be asserted.” Johnson, 636 A.2d at 658-659.
Commonwealth v. Clark, 746 A.2d 1128, 1134 (Pa. Super. 2000). We
agree with the suppression court that Appellant could not have retained a
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reasonable expectation of privacy in the white bag once he secreted and
abandoned the marijuana in the bush. Suppression Court Opinion, 4/6/16,
at 6 (citing Shoatz, 366 A.2d at 1219).
Additionally, there is no merit to Appellant’s suggestion that Agent
Theobald’s observation of Appellant’s actions sparked a “forced
abandonment” by Appellant. Appellant’s Brief at 17. While it may be true
that Appellant indeed recognized that Agent Theobald was aware of
Appellant’s presence, and Appellant “dropped the bag to avoid the parole
violation of actual possession of a controlled substance,” Appellant’s Brief at
18, that scenario does not describe a forced abandonment under the law.
Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa. Super. 1998) (“mere
approach by a law enforcement official does not amount to police coercion
requiring suppression of evidence abandoned by defendant”). Indeed, we
have stated that fear of detection and “sensitivity to the risk of police
detection does not establish that [an] abandonment was forced.” Id. at
680.
In Commonwealth v. Taylor, 33 A.3d 1263 (Pa. Super. 2011),
undercover police officers were patrolling an area in an unmarked car and
observed the appellant and another man sitting on a wall. The appellant
was holding a potato chip bag. As the officers approached, the appellant
crumpled the bag and put it down to his side, and then tossed the bag to the
ground. At that point, the officers exited their vehicle and identified
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themselves as police officers. In addressing the appellant’s issue on appeal
that he had been forced to abandon the physical evidence and was illegally
detained, this Court stated: “While appellant may have felt uncomfortable
being watched by three people in a car that he knew to be a police vehicle,
we cannot find such amounted to police coercion. . . . Appellant discarded
the potato chip bag at his own volition.” Id. at 1286.
Similarly, in the instant case, we conclude that the record is devoid of
any evidence that Agent Theobald’s conduct forced Appellant to abandon the
marijuana. Moreover, the abandonment, which occurred substantially before
the agent approached and detained Appellant, was not fruit of the poisonous
tree. Agent Theobald’s subsequent detention, pat down, and custodial
detention without Miranda warnings had no impact on Appellant’s prior
voluntary abandonment of the marijuana. Despite the trial court’s
suppression of Appellant’s statements because they resulted from a custodial
interrogation absent Miranda warnings, the marijuana was seized
independently of that custodial conduct in that it had been abandoned prior
to Agent Theobald’s approach of Appellant. As stated by the suppression
court:
Here, the physical evidence of the white plastic bag did not come
to light by exploitation of illegality of statements obtained from
[Appellant]. Agent Theobald did not retrieve the bag from the
bush because of any statements made by [Appellant]. On the
contrary, the Agent observed the bag prior to any statements
made by [Appellant]. Therefore, the suppression of [Appellant’s]
statements is a complete and sufficient remedy for the Miranda
violation.
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Suppression Court Opinion, 4/6/16, at 7. Appellant’s abandonment was not
caused by any unlawful or coercive action by Agent Theobald. Thus, we
conclude Appellant’s issues lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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