J-S09019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 onehalf to five years incarceration followed by seven years probation, which was below the mitigated range of the sentencing guideli nes. Sentence was imposed after the trial court convicted Appellant o f one count of possession of a controlled substance with intent to deliver an d two counts of possession of a controlled substance. We affirm. Appellant’s convictions are premised upon the foll owing 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 Appel lant’s co-defendant, BruceJ-S09019-15

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Lucas, at 1350 Herman Street, Pittsburgh. Lucas wa s wanted for violating his probation on a robbery charge. The team consis ted of Detective Manning, Detective Richard Venezia, Detective Richa rd Dwyer, Sergeant Clark, 1 and Detective Ron Stokes. Detective Stokes cover ed 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 warra nt, 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 w indow to the left of the front door was opened, and Detective Manning “could smell a strong pungent odor of marijuana. It was a fresh marijuan a smell, as we approached the door.” N.T. Non-Jury Trial Transcri pt, 10/30/13, at 23. Finally, Lucas was wanted for violating probation i n a felony case so the sheriffs anticipated that he might attempt to flee. Detectives Manning and Venezia knocked loudly and i mmediately “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 wi th a warrant. Answer

____________________________________________ 1 Detective Manning did not provide Sergeant Clark’s first name. N.T. Nonjury Trial Transcript, 10/30/13, at 18.J-S09019-15

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the door.” Id . A few seconds later, Detective Manning heard a m etallic 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 th ey were sheriffs with a warrant and wanted the door to be opened. The only response was the sound of “people running around within the residenc e.” 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 M anning left his post at the front of the house and observed the two men fle eing down Spring Garden Avenue. Detective Manning articulated that, at that point, he concluded that the they were engaged in criminal ac tivity. Detectives Manning and Venezia entered a vehicle, w ent to find the two fleeing men, and “saw them both walking down Sp ring Garden Avenue.” Id . at 33. The two people, Appellant and his other c o-defendant Melvin Crew, matched “the individuals [who Detective Manni ng] saw going down the hill in their clothing” as well as a descriptio n that had been provided by Detective Stokes. Id . Appellant’s clothing was in disarray, grass stai ned, and dirty, and he was not wearing shoes. When Detective Venezia started to approach him, App ellant immediately started to run. Crew ceased his flight at that point and was handcuffed by Detective Manning. Another police of ficer immediately arrivedJ-S09019-15

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at the scene, and Detective Manning joined Detectiv e Venezia in the chase. As he started to run, Detective Manning heard Detec tive 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 n earby fence. Detective Manning grabbed Appellant and handcuffed him. Detective Venezia arrived at the scene shortly ther eafter with a purple velvet bag used to package Crown Royal liquor. Det ective Venezia testified that Appellant threw away the bag while the detecti ve 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 Co mmonwealth would have presented testimony that the cocaine was possessed with intent to deliver. On appeal, Appellant presents the following content ion, “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 pr obable cause, and officers had opportunity to obtain a search warrant ?” Appellant’s brief at 3. Herein, the suppression court concluded that Appell ant abandoned the bag while the detectives were in the process of att empting to effectuate a valid investigatory detention supported by reasonab le suspicion pursuit toJ-S09019-15

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Terry v. Ohio , 392 U.S. 1 (1968). Initially, we outline our stan dard of review in this context:

An appellate court's standard of review in addressi ng 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 concl usions drawn from those facts are correct. Because the Commonwe alth prevailed before the suppression court, we may cons ider only the evidence of the Commonwealth and so much of the evi dence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression co urt'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 all egations of legal error, the suppression court's legal conclusi ons are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the f acts. 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 n eeded to secure a search warrant before they looked inside the bag to discover its contents.

As a general principle, the Fourth Amendment requir es that law officers obtain a warrant issued by a neut ral magistrate before they intrude into a place of privacy. Howeve r, an exception to the warrant requirement exists when th e property seized has been abandoned. In Commonwealth v. Shoatz , 469 Pa. 545, 366 A.2d 1216 (1976), our Supreme Cour t delineated the test employed to determine whether a n 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 allegedJ-S09019-15

- 6 - 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 questi on so that he could no longer retain a reasonable expectation of privacy with regard to it at the tim e 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 t he bag in question, he relinquished his expectation of privacy in that ite m and cannot contest the validity of its search without a warrant. Herein, Detective Venezia reported that while he wa s chasing Appellant, Appellant threw away the purple velvet C rown 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 pr ivacy 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 unconstitut ional police conduct, then a defendant retains the ability to object to its sear ch. Byrd , supra . The record establishes that Appellant discarded the bag while he was being chased by Detective Venezia and before he was restr ained by DetectiveJ-S09019-15

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Manning. Hence, the causative factor in the abando nment was not Appellant’s detention while was climbing the fence but his pursuit by
Detective Venezia. Id . The suppression court viewed this police interac tion as an attempt at an investigatory detention, and we concur with its assessment as well as its conclusion that the inter action 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 s eizures. Commonwealth v. Smith , 575 Pa. 203, 836 A.2d 5, 10 (2003) (citation omitted). Jurisprudence arising under bot h charters has led to the development of three categories of inter actions between citizens and police. Id

. (citations omitted). The first, a “mere encounter,” does not require any level of sus picion or carry any official compulsion to stop or respond. T he second, an “investigative detention,” permits the temporary de tention of an individual if supported by reasonable suspicion. Th e third is an arrest or custodial detention, which must be suppor ted 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 “conduc t an objective examination of the totality of the surrounding circ umstances.” Id . (citation omitted). This test focuses “on whether the suspec t has in some way been restrained by physical force or show of coercive au thority.” Id . (citation omitted). Herein, it is evident that, contrary to his positio n, Appellant was not in police custody while he was being chased by Detecti ve Venezia. While his course of action was being dictated by the police, he had not been arrested.J-S09019-15

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Hence, we view the interaction, as did the suppress ion court, as an attempt at an investigatory detention. We outlined the test utilized to determine whethe r police had reasonable suspicion to support an investigatory de tention 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 perso n stopped of criminal activity.” Navarette v. California , ––– U.S. ––––, ––– –, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). I t is axiomatic that to establish reasonable suspicion, a n officer “must be able to articulate something more than an inchoa te 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 Cou rt 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 i s required to “take into account the totality of the circumstance s-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 unparticulari zed hunch that Appellant was engaged in criminal activity. As rep orted by Detective Venezia, and accepted by the suppression court, the conclusion that Appellant should be investigated for possible crimi nal activity was premisedJ-S09019-15

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upon the following objective facts giving rise to r easonable suspicion: 1) the front door of the home was barricaded and its occup ants would not open the door to permit the sheriffs to execute their warran t; 2) in order to evade police at the front door, Appellant jumped from a p orch 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 whic h Appellant just fled. Based on all of the circumstances known to the dete ctives, they had an objective basis to investigate Appellant. Hence, w e affirm the suppression court’s conclusion that reasonable suspicion was pr esent herein. Since the abandonment of the bag was not the result of illega l police conduct, Appellant’s claim must fail. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/5/2015