J. S33009/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CASSEEM CAIN, : No. 2792 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, August 26, 2014,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0008250-2013

BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 10, 2015

Appellant appeals the judgment of sentence contending that the trial 

court erred in failing to suppress the evidence against him. We affirm.

On July 23, 2014, a jury found appellant guilty of two counts of 

possessing a controlled substance with intent to deliver, and two counts of 

simple possession.1 On August 26, 2014, the trial court imposed an 

aggregate sentence of 36 to 72 months’ imprisonment plus 3 years’ 

probation. During trial, the parties litigated a suppression motion which 

sought suppression of evidence recovered when police performed an initial 

Terry stop of appellant on November 20, 2013,2and also subsequent 

 

1 35 P.S. § 780-113(a)(30) and (a)(16), respectively.

2 Terry v. Ohio, 392 U.S. 1 (1969).
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evidence uncovered at appellant’s apartment pursuant to a search warrant 

which was obtained predicated on the evidence uncovered during the Terry

stop. The trial court made the following findings of fact after the 

suppression hearing:

1. On November 20, 2013, Darby Borough Police 

Officer John Ettore arrested and charged the 

Defendant, Caseem Cain, with: three counts of 

Possession With Intent to Deliver a Controlled 

Substance (Cocaine), three counts Possession 

of a Controlled Substance, (Cocaine), three 

counts of Possession of Drug Paraphernalia, 

Selling Controlled Substance Without Label, 

(Xanax) and Endangering Welfare of Children.

2. On April 4, 2014, Defendant, through counsel, 

filed a Motion to Suppress Evidence requesting 

the suppression of items found and seized from 

his person: (1) one clear glassine baggie 

containing a white solid suspected of being 

crack cocaine, (2) $1,081.00 U.S. currency, 

(3) keys, and a (4) a cell phone.

3. The Defendant alleges that his stop, search, 

and arrest were made without reasonable 

suspicion and/or probable cause.

4. Defendant, through counsel, in his Motion to 

Suppress Evidence also requests the 

suppression of items found and seized as a 

result of a search warrant of his residence. 

The following items were seized from his 

residence: (1) a cellophane wrapper containing 

suspected cocaine, (2) rental receipts, (3) a 

postal receipt, (4) an appointment card from 

Adult Probation, (5) three five dollar bills, 

(6) two small glassine baggies, (7) a digital 

scale, (8) one unmarked prescription bottle 

containing blue pills, (9) a bag of change 

containing approximately $36.85, (10) two 

parcels of mail addressed to the defendant, 
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(11) one apple-designed clear baggie, (12) one 

composition notebook, (13) numerous 

correspondence between the defendant and his 

attorney, the courts, and prison, and 

(14) men’s clothing.

5. The Defendant alleges that the search 

pursuant to search warrant was in violation of 

his rights under the 4th, 5th, and 14th

amendments of the U.S. Constitution, Article I, 

Section 8 and Section 9 of the Pennsylvania 

Constitution.

6. On April 16, 2014, a Suppression Hearing was 

held on Defendant’s “Suppression Motion.”

7. The Suppression Hearing began with 

arguments to determine whether the 

Defendant had an expectation of privacy in the 

apartment located at 17 N. 2nd Street in Darby, 

Pennsylvania that the Police searched.

8. The Defendant testified that he lived on the top 

floor apartment, 17B, located at 17 N. 2nd

Street in Darby, Delaware County, 

Pennsylvania. The Defendant had been renting 

the apartment from Crystal Davis and her 

mother, Michelle Davis. He resided at the 

apartment with Crystal and Michelle Davis. He 

had rented the apartment for about a month. 

The Defendant possessed keys for the 

apartment. The Defendant paid Michelle Davis 

$200.00 per month for rent. He paid cash and 

had receipts that were seized by the Police at 

the time of the raid. The receipts, which were 

from a receipt form indicating rent, were 

located on a shelf, when the police seized 

them.

9. The Court determined that the Defendant had 

an expectation of privacy in apartment 17B 

located at 17 N. 2nd Street in Darby, 

Pennsylvania.
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10. Subsequent to this determination, part-time 

Police Officer John Ettore, an Officer with the 

Darby Borough Police Department, testified. 

Officer Ettore testified that 17 N. 2nd street is a 

high-crime and high-drug area. In fact, the 

Officer has been involved in fifty (50) drug 

investigations in that vicinity and has about 

forty (40) drug arrests in that area.

11. Officer Ettore testified that he previously knew 

of the Defendant from the County Drug Task 

Force and through information received from a 

Confidential Informant. The Confidential 

Informant provided information that the 

Defendant was staying at 17 N. 2nd Street. 

The Officer stated that the Confidential 

Informant also provided information that the 

Defendant was engaged in drug transactions. 

Despite this knowledge, however, the 

Confidential Informant was never used to 

obtain drugs from the Defendant.

12. Prior to stopping Defendant on November 20, 

2013, Officer Ettore had observed the 

Defendant traveling on Main Street in Darby, 

Pennsylvania and observed the Defendant 

engage in hand to hand transactions. During 

these transactions, money was exchanged for 

an item. These transactions had occurred in 

the morning near the “Wishing Well Bar”, when 

the Bar was not open, and also in the evening.

13. On redirect, Officer Ettore testified that two 

weeks prior to the incident at issue, 

Officer Ettore and Officer Paul McGrenera 

observed an exchange by the Defendant and 

another individual in the evening. Officer 

McGrenera, with the assistance of Officer 

Ettore, attempted to stop the other individual 

involved in the transaction who ran away. 

Both the Defendant and the other individual 

managed to evade the Officers.
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14. On November 20, 2013, at 9:40 a.m., 

Officer Ettore was on duty working patrol when 

he received a radio transmission reporting that 

the Defendant had just left his residence. At 

this point, Officer Ettore had been two blocks 

away in uniform and a marked patrol vehicle. 

Officer Ettore drove down Main Street and 

observed the Defendant walking on Main 

Street towards the 500 block of Main Street.

15. As soon as Officer Ettore saw the Defendant, 

the Officer observed the Defendant take 

something out of his pocket in his fist and look 

back at the Officer. Officer Ettore further 

explained that the Defendant was wearing a 

sweatshirt and removed something from his 

left pocket and looked back at the Officer. 

Officer Ettore testified that he could not tell 

what the object was. Officer Ettore also 

testified that he had reason to believe that that 

[sic] the Defendant was traveling to the 

Wishing Well Bar.

16. As soon as Officer Ettore observed the 

Defendant pull something from his pocket, 

Officer Ettore called Officer Paul McGrenera. 

Officer Ettore testified that he intended to stop 

the Defendant when he saw the Defendant 

remove something from his pocket. 

Officer Ettore also testified that he did not 

intend to arrest the Defendant on the morning 

of the incident. The two Officers pulled up 

onto the sidewalk upon which the Defendant 

was walking. Officer Ettore testified that 

neither he nor Officer McGrenera activated 

their overhead lights at the time of the stop.

17. Officers Ettore and McGrenera exited their 

respective vehicles with no weapons drawn. 

When Officer Ettore exited his vehicle, he was 

approximately (3) three to (4) four feet away 

from the Defendant and saw the Defendant 

throw a clear, plastic baggie on the ground. 

Officer Ettore further clarified that he had been 
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approaching the Defendant from behind, with 

the Defendant’s back to the Officer, and that 

the Defendant threw the baggie in the Officer’s 

direction. At this point, neither Officer had 

spoken to the Defendant.

18. The baggie that Officer Ettore observed the 

Defendant discard was a clear, plastic baggie 

containing four smaller baggies with a white 

substance inside. The Officer observed the 

baggie on the ground before telling the 

Defendant to place his hands on the vehicle. 

The Defendant was then placed under arrest. 

The contents of the baggie field-tested 

positively for cocaine.

19. On cross examination, Officer Ettore testified 

that he prepared the Affidavit of Probable 

Cause for the search warrant. The basis for 

the search warrant was the contraband 

recovered at the stop.

20. After Officer Ettore’s testimony, Officer 

Paul McGrenera testified. Officer McGrenera 

has been a Yeadon Borough Patrolman for the 

past five years. On the date of the incident, 

Officer McGrenera had been a Darby Borough 

Patrolman for three years. Officer McGrenera 

testified that N. 2nd Street is known to be a 

high-crime and high-drug area. 

Officer McGrenera has been involved in more 

than 100 investigations for drugs and more 

than 50 arrests for drugs in the vicinity of this 

incident.

21. Officer McGrenera testified that he knew the 

Defendant prior to this incident. In the month 

prior to this incident, Officer McGrenera had 

observed the Defendant in the same area 

around the Wishing Well Bar both in the 

morning and evening hours. The Wishing Well 

Bar is not open during the morning hours.
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22. On November 20, 2013, Officer McGrenera was 

on duty and in uniform. The Officer received a 

call from Officer Ettore that Officer Ettore was 

going to make an investigatory stop. 

Officer McGrenera testified that he did not 

intend to arrest the Defendant on the morning 

of the incident.

23. Officer McGrenera testified that he pulled up 

onto the sidewalk upon which the Defendant 

was walking. As the Officer exited his patrol 

vehicle, he saw the Defendant discard a clear, 

plastic baggie. At this point, the Defendant 

was ordered to place his hands on the patrol 

vehicle.

24. The Defendant also testified. The Defendant 

testified that he had been walking along the 

sidewalk when two police officers pulled up and 

told him to put his hands up. The Defendant 

contends that he took his hands out of his 

pocket and, as a result, the baggie fell out of 

his pocket. On cross-examination, the 

Defendant testified that the Officers did not 

activate their overhead lights on their patrol 

vehicles.

Order Denying Defendant’s Suppression Order, 5/1/14 at 1-5.

We begin our analysis with our standard of review:

Our standard of review of a denial of suppression is 

whether the record supports the trial court’s factual 

findings and whether the legal conclusions drawn 

therefrom are free from error. Our scope of review 

is limited; we may consider only the evidence of the 

prosecution 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 record 

supports the findings of the suppression court, we 

are bound by those facts and may reverse only if the 

court erred in reaching its legal conclusions based 

upon the facts.
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Commonwealth v. Wilson, 111 A.3d 747, 754 (Pa.Super. 2015), quoting 

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002) 

(citations omitted).

Our courts have recognized three levels of interaction between police 

and citizens, each requiring three increasing quantities of suspicion:

The first of these is a “mere encounter” (or request 

for information) which need not be supported by any 

level of suspicion, but carries no official compulsion 

to stop or respond. The second, an “investigative 

detention” must be supported by reasonable 

suspicion; it subjects a suspect to a stop and period 

of detention, but does not involve such coercive 

conditions as to constitute the functional equivalent 

of arrest. Finally, an arrest or “custodial detention” 

must be supported by probable cause.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.Super. 2014), quoting 

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013) (citation 

omitted), appeal denied, 87 A.3d 320 (Pa. 2014). Instantly, the police 

interaction with appellant would constitute an investigative detention 

requiring reasonable suspicion.

[T]o establish grounds for reasonable suspicion, the 

officer must articulate specific observations which, in 

conjunction with reasonable inferences derived from 

those observations, led him reasonably to conclude, 

in light of his experience, that criminal activity was 

afoot and that the person he stopped was involved in 

that activity. The question of whether reasonable 

suspicion existed at the time [the officer conducted 

the stop] must be answered by examining the 

totality of the circumstances to determine whether 

the officer who initiated the stop had a particularized 

and objective basis for suspecting the individual 

stopped.
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Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015), quoting 

Commonwealth v. Muhammed, 992 A.2d 897, 900-901 (Pa.Super. 2010) 

(citations omitted).

We find the trial court’s findings and conclusions are supported by the 

record and we affirm on the basis of the trial court’s opinion. Experienced 

police officers witnessed several suspicious hand-to-hand transactions by 

appellant in a high drug activity area. They were familiar with appellant 

having been alerted to his activity by a confidential informant and their own 

observations. Weeks prior to the investigatory stop in this case, appellant 

evaded another investigatory stop by the same officers after their 

observation of a suspicious hand-to-hand transaction with another individual 

who fled. Clearly, appellant was under suspicion as a drug dealer and 

stopped en route to an area where he had previously been observed 

engaging in such activity. Prior to appellant actually being stopped or 

spoken to by the officers, he threw contraband to the ground. The 

investigatory stop was reasonable. The discarded contraband was not 

coerced.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/10/2015
1 35 Pa.C.S. §780-J 13(a)(30) 

135 Pll.C.S. §780-l 13(a)(16) 

3 35 Pa.C.S. §780-l 13(a)(32) 

4 18 J>a.C.S. §780-1 I 3(a)( l 8) 

5 18 J'a.C.S. §4304(a)(I) 

2. On April 4, 2014, Defendant, through counsel, filed a Motion to Suppress 

Evidence requesting the suppression of items found and seized from his 

person: (1) one clear glassine baggie containing a white solid suspected of 

being crack cocaine, (2) $1,081 .00 U.S. currency, (3) keys, and a (4) a cell 

phone. · 

1. On November 20, 2013, Darby Borough Police Officer John Ettore arrested 

and charged the Defendant, Caseem Cain, with: three counts of Possession· With Intent lo Deliver a Controlled Substance'(Cocaine), three counts 

Possession of a Controlled Substance,2 (Cocaine); three counts of Possession 

of Drug Paraphemalia.i Selling Controlled Substance Without Label, 

11 

(Xanax) and Endangering Welfare of Children.s 

I. FINDINGS OF FACT 

The Court finds as foJlows: 

ORDERED AND DECREED that the Motion is DENIED. 

"Suppression Motion" and the Suppression Hearing held on April 16, 2014, it is hereby 

AND NOW, this 29th day of April, 2014 upon consideration of the Defendant's 

ORDER DENYING DEFENDANT'S SUPPRESSION MOTION 

Matthew Deb[ucci, Esquire, Assistant District Attorney for the Commonwealth 

Kenneth Sexton, Esquire, Attorney for the Defendant 

CASEEMCAfN 

COMMONWF..ALTH OF PF.NNSYLV ANIA NO. 8250-2013 

v. 

IN TIIJi COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA 

CRJMINAL DIVISION 

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2 

6 Thu Defendant's Suppression Motion (at avermcnt 1 I) alleges that the Defendant gave inculpatory statements 

concerning the above crimes as a result of bis stop and arrest but the issue of an Incriminating statement was not 

raised at the Suppression Hearing. 

10. Subsequent to this determination, part-time Police Officer John Ettore, an 

Officer with the Darby Borough Police Department, testified. Officer Ettore 

testified that 17 N. 2"d street is a high-crime and high-drug area. In fact, the 

9. The Court determined that the Defendant had an expectation of privacy in 

apartment l 7B located at 17 N. 211<l Street in Darby, Pennsylvania. 

8. The Defendant testified that be lived on the top floor apartment, 17B, located 

al 17 N. 2"d Street in Darby, Delaware County, Pennsylvania. Toe Defendant 

had been renting the apartment from Crystal Davis and her mother, Michelle 

Davis. He resided at the apartment with Crystal and Michelle Davis. He bad 

rented the apartment for about a month. 111e Defendant possessed keys for the 

apartment. The Defendant paid Michelle Davis $200.00 per month for rent. 

He paid cash and had receipts th.at were seized by the Police at the time of the 

raid. The receipts, which were from a receipt form indicating rent, were 

located on a shelf, when the police seized them. 

7. The Suppression Hearing began with arguments to determine whether the 

Defendant had an expectation of privacy in the apartment located at 17 N. 2nd 

Street in Darby, Pennsylvania that the Police searched. 

6. On April 16, 2014, a Suppression Hearing was held on Defendant's 

"Suppression Motion." 

5. The Defendant alleges that the search pursuant to search warrant was in 

violation of his rights under the 4th, 5lli and 14t11 amendments of the U.S. 

Constitution, Article I, Section 8 and Section 9 of the Pennsylvania 

Constitution. 

4. Defendant, through counsel, in his Motion to Suppress Evidence also requests 

the suppression of items found and seized as a result of a search warrant of his 

residence. The foJlowing Hems were seized from his residence: (I) a 

cellophane wrapper containing suspected cocaine, (2) rental receipts, (3) a 

postal receipt, (4) an appointment card from Adult Probation, (5) three five 

doJJar bills, (6) two small glassine baggies, (7) a digital scale, (8) one 

unmarked prescription bottle containing blue pills, (9) a bag of change 

containing approximately $36.85, (10) two parcels of mail addressed lo the 

defendant, (11) one apple-designed clear baggie, (12) one composition 

notebook, ( 13) numerous correspondence between the defendant and his 

attorney, the courts, and prison, and (14) men's clothing". 

3. The Defendant alleges that his stop, search, and arrest were made without 

reasonable suspicion and/or probable cause. 

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3 

16. As soon as Officer Ettore observed the Defendant pull something from his 

pocket, Officer Ettore called Officer Paul McGrenera. Officer Ettore testified 

that be intended to stop the Defendant when he saw the Defendant remove 

something from his pocket. Officer Ettore also testified that he did not intend 

to arrest the Defendant on the morning of the incident. The two Officers 

pulled up onto the sidewalk upon which the Defendant was walking. Officer 

I 5. As soon as Officer Ettore saw the Defendant, the Officer observed the 

Defendant take something out of bis pocket in his fist and look back at the 

Officer. Officer Ettore further explained that the Defendant was wearing a 

sweatshirt and removed something from his left pocket and looked back at the 

Officer. Officer Ettore testified that he could not tell what the object was. 

Officer Ettore also testified that he had reason to believe that that the 

Defendant was traveling to the Wishing Well Bar. 

14. On November 20, 2013, at 9:40 a.m., Officer Ettore was on duty working 

patrol when he received a radio transmission reporting that the Defendant had 

just left his residence. At this point, Officer Ettore had been two blocks away 

in uniform and a marked patrol vehicle. Officer Ettore drove down Main 

Street and observed the Defendant walking on Main Street towards the 500 

block of Main Street. 

13. On redirect, Officer Ettore testified that two weeks prior to the incident at 

issue, Officer Ettore and Officer Paul McGrenera observed an exchange by 

the Defendant and another individual in the evening. Officer McGrenera., with 

the assistance of Officer Ettore, attempted to stop the other individual 

involved in the transaction who ran away. Both the Defendant and the other 

individual managed to evade the Officers. 

12. Prior to stopping Defendant on November 20, 2013, Officer Ettore had 

observed the Defendant traveling on Main Street in Darby, Pennsylvania and 

observed the Defendant engage in hand· to hand transactions. During these 

transactions, money was exchanged for an item. These transactions had 

occurred in the morning near the "Wishing Well Bar", when the Bar was not 

open, and also in the evening. 

11. Officer Ettore testified that he previously knew of the Defendant from the 

County Drug Task Force and through information received from a 

Confidential Informant, The Confidential Informant provided information that 

the Defendant was staying at 17 N. 2"d Street. The Officer stated that the 

Confidential Informant also provided information that the Defendant was 

engaged in drug transactions. Despite this knowledge, however, the 

Confidential Informant was never used to obtain drugs from the Defendant. 

Officer has been involved in fifty (50) drug investigations in that vicinity and 

has about forty (40) chug arrests in that area. 

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4 

23. Office!' McGrenera testified that he pulled up onto the sidewalk upon which 

the Defendant was walking. As the Officer exited his patrol vehicle, he saw 

the Defendant discard a clear, plastic baggie. At this point, the Defendant was 

ordered to place his hands on the patrol vehicle. 

r 

22. On November 20, 2013, Officer McGrenera was on duty and in uniform. The 

Officer received a call from Officer Ettore that Officer Ettore was going to 

make an investigatory stop. Officer Mcfirenera testified that he did not intend 

to arrest the Defendant on the morning of the incident. 

21. Officer McGrenera testified that he knew the Defendant prior to this incident. 

In the month prior to this incident, Officer Mcflrenera had observed the 

Defendant in the same area around the Wishing Well Bar both in the morning 

and evening hours. The Wishing Well Bar is not open during the morning 

hours. 

20. After Officer Ettore's testimony, Officer Paul Mcflrenera testified. Officer -» 

McGrenera has been a Yeadon Borough Patrolman for the past five years. On 

the date of the incident, Officer McGrenera had been a Darby Borough 

Patrolman for three years. Officer Mcflrenera testified that N. 2nd Street is 

known to be a high-crime and high-drug area. Officer McGrenera has been 

involved in more than 100 investigations for drugs and more than 50 arrests 

for drugs in the vicinity of this incident. 

19. On cross examination, Officer Ettore testified that he prepared the Affidavit of 

Probable Cause for the search warrant. The basis for the search warrant was 

the contraband recovered at the stop. 

18. The baggie that Officer Ettore observed the Defendant discard was a clear, 

plastic baggie containing four smaller baggies with a white substance inside. 

The Officer observed the baggie on the ground before telling the Defendant to 

place his hands on the vehicle. The Defendant was then placed under arrest. 

The contents of the baggie field-tested positively fol' cocaine. 

17. Officers Ettore and McGrenera exited their respective vehicles with no 

weapons drawn. When Officer Ettore exited his vehicle, he was approximately 

(3) three to ( 4) four feet away from the Defendant and saw the Defendant 

throw a clear, plastic baggie on the ground. Officer Ettore further clarified that 

he had been approaching the Defendant from behind, with the Defendant's 

back to the Officer, and that the Defendant threw the baggie in the Officer's 

direction. At this point, neither Officer had spoken to the Defendant. 

Ettore testified that neither he nor Officer McGrenern activated their overhead 

lights at the time of the stop. 

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5 

1999). 

Fourth Amendment. See Commonwealth v. BradlcyJ 724 A.2d 351 (Pa. Super. 

which need not be supported by any level of suspicion. It docs not implicate the 

3. The first of these interactions is a "mere encounter", or a request for information, 

detention." 

characterized as a "mere encounter," an "investigative detention," or a "custodial 

The Court determined that interactions between police and citizens may be 

more intrusive. Commonwealth v. Boswell. 554 Pa. 275, 721 A.2d 336 (1998). 

suspicion to justify their interactions with citizens as those interactions become 

Pennsylvania require law enforcement officers to demonstrate ascending levels of 

2. To secure the right of its citizens to be free from intrusions, courts in 

Commonwealth v. Blair, 575 A.2d 593, 596 (Pa. Super. 1990). 

and seizures, thereby ensuring the "right of each individual to be let alone." 

of the Pennsylvania Constitution protects individuals from unreasonable searches 

1. The Fourth Amendment to the United States Constitution and Article I, Section 8 

I. Motion to Suppress Evidence/Reasonable Suspicion 

ll. CONCLUSIONS OF LAW 

24. The Defendant also testified. The Defendant testified that he had been walking 

along the sidewalk when two police officers pulled up and told him to put his 

hands up. The Defendant contends that he took his hands out of his pocket 

and, as a result, the baggie fell out of his pocket. On cross-examination, the 

Defendant testified that the Officers did not activate their overhead lights on 

their patrol vehicles. 

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probable cause. ln re O.A., 717 A.2d 490, 495 (Pa.1998). 

all relevant facts when determining whether a warrantless an-est was supported by 

8. In considering the totality of the circumstances, the court must take into account 

558 Pa. 617, 737 A.2d 741 (1999). 

Commonwealth v. Riley, 715 A.2d I 131, 1135 (Pa.Super, 1998), appeal denied, 

totality of the circumstances through the eyes of a trained officer. See, 

7. To evaluate the level of suspicion possessed by an officer, tile court must view the 

Super. 1999). 

offense has been committed. Commonwealfu v. Myers, 728 A.2d 960, 962 (Pa. 

knowledge that would warrant a person of reasonable caution to believe an 

cause exists if there are facts and circumstances within the police officer's 

6. The third level is a custodial detention, which requires probable cause. Probable 

facts in light of his or her experience. Jackson, 698 A.2d at 573. 

point to specific and articulable facts and reasonable inferences drawn from those 

In order to demonstrate reasonable suspicion, the police officer must be able to 

Commonwealth v. Jackson. 428 Pa.Super. 246, 249, 630 A.2d 1231, 1233 (1993). 

possess reasonable and articulable suspicion that criminal activity is afoot. 

• I 

5. Tf the interaction rises to the level of an investigative detention, the police must 

seized is engaged in criminal activity. id. 

Terry stop, which must be supported by reasonable suspicion that the person 

4. TI1e second level is an "investigative detention," or as commonly referred to a 

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9. In the case of ~mmonwealtb v. Johnson, 849 A.2d 1236, (Pa. Super. 2004) the 

Superior Court held that a reliable CI's tip of a man arriving al a location with 

drugs provided reasonable suspicion for an investigatory detention. 

10. Infon:nation provided by an informant may legitimately form the basis for 

probable cause where, for example, "police independently corroborate the tip." 

Commonwealth v. Luv. 735 A.2d 87, 90 (Pa. 1999). 

11. The Pennsylvania Supreme Court has held that a Cl's tip, alone, does not 

establish probable cause to make a warrantless arrest. An arresting officer must 

corroborate the tip to establish probable cause. See, Commonwealth v. 0.A., 717 

A.2d 490 (Pa. 1998). 

12. In the case sub Judice, the Darby police had received information from a reliable 

CI, advising them. that the defendant was involved in drug activity. The 

information given to the police provided predictive behavior that was able to be 

corroborated by the police. See, Commonwealth v. Griffin, 954 A.2d 648, 651 

(Pa. Super. 2008). Here, Officer Ettore and Officer McGrenera were able lo 

corroborate the Cl's tip and observed the Defendant engage in hand to hand drug 

transactions on prior occasions to Novem ber 20, 2013. 

13. It merits emphasis that this case involves: (1) the tip of a CI, (2) police 

surveillance which confirmed the predictive information provided by the CI, (3) 

experienced officers in a high-crime, high-drug area (4) both Officers observed 

Defendant's prior actions which the Officers believed to be drug transactions and 

(4) Officer Ettore and Officer Mcflrenera observing the Defendant throwing 

contraband in plain view. 

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J4. The totality of circumstances ansing from the Cl's tip plus the Officers' 

independent corroboration through surveillance provided the Officer with 

probable cause to arrest the Defendant without a warrant. 

15. This Court finds that the underlying initial encounter between Officer Ettore and 

the Defendant began as an investigative detention. Officer Ettore received a radio 

transmission that morning that the Defendant had left his residence. The Officer 

observed the Defendant walking on Main Street in Darby, Pennsylvania in the 

direction of the Wishing Well Bar. This is a high-drug, high-crime area Prior to 

stopping Defendant on November 20, 2013, Officer Ettore had observed the 

Defendant traveling on Main Street and observed the Defendant engage in hand to 

hand transactions. During these transactions, money was exchanged for an item. 

These transactions had occurred in the morning near the "Wishing Well Bar", 

when the Bar was not open, and also in the evening. The Court finds that the 

Officer's observations alone gave rise to a reasonable and articulable suspicion of 

some illegal activity justifying a brief investigative detention. 

16. When the Officer arrived at the scene, he observed the Defendant take something 

from his left pocket and throw it to the ground, When Officer Ettore exited his 

vehicle, he was approximately (3) three to (4) four feet away from the Defendant 

when be observed the Defendant throw a clear, plastic baggie on the ground. 

There was 110 conversation between the Defendant and the Officer prior to the 

Officer observing the Defendant throwing the contraband. The baggie that Officer 

Ettore observed the Defendant discard was determined by the Officer to be a 

clear, plastic baggie containing four smaller baggies with a white substance 

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2. The plain view doctrine permits the warrantless seizure of evidence in plain view 

when: (1) an officer views. the object from a lawful vantage point; and (2) it is 

immediately apparent to him that the object is incriminating and (3) the police 

must have a lawful right of access to the object. Commonwealth v~ McCree, 592 

Pa. 238, 924 A.2d 621 (2007). 

inside. The Officer observed the baggie on the ground before telling the 

Defendant to place his hands on the vehicle. The contents of tbe baggio fieldtested positively for cocaine. 

10. The testimony of the two Officers was credible. 

11. The court finds that based upon the totality of the circumstances, Officers Ettore 

and McGrenera had reasonable suspicion that criminal activity was afoot to 

justify stopping the Defendant. However, upon approaching the Defendant the 

Officers had not only reasonable suspicion but had probable cause to arrest the 

Defendant because they observed the Defendant throw contraband to the ground. 

12. Consequently, this Court ultimately finds that there was no unlawful action oflaw 

enforcement in violation of the Defendant's rights under Article I, Section 8 of 

the Constitution of the Commonwealth of Pennsylvania or the 4th, 5th and 14th 

Amendments to the United States Constitution. 

II. Motion to Suppress Evidence/Plain View 

1. The United States Supreme Court has held that there is no reasonable expectation 

of privacy where an object is in plain view. Commonwealth v. Petroll, 738 A.2d 

993, 999 (Pa. 1999) citing Ill. v. Gates, 462 U.S. 213 (1983). 

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10 

apparent to the trained Officer that the clear plastic baggic contained contraband. 

apparent to the officer that the object is incriminating. Here, it was immediately 

9. The second prong of the plain view analysis requires that it must be immediately 

vautage point. This meets the first prong of the plain view analysis. 

viewed the contraband from a public street on Main Street in Darby, PA, a lawful 

Ettore immediately recognized the contents as illegal narcotics. The Officer 

question were located in a transparent package viewed in plain view. Officer 

6. The facts in the case sub Judice arc similar to those in Guzman. The drugs in 

Commonwealth v. Guzman,44A.3d 688, 695 (Pa. Super .. 2012). 

Here, Officer Wetzel was in a lawful vantage point outside the SUV. 

Because Appellee had left the door open when he voluntarily jumped out 

of the car, Officer Wetzel needed only to stand outside the car and look 

inside. The drugs in question were located in a transparent package on the 

floor, sticking out from beneath the passenger seat; and Officer Wetzel 

immediately recognized the contents as illegal narcotics. 

apparent; and (3) police have lawful right of access to objectj.The court opined: 

from lawful vantage point; (2) incriminating nature of i tern is immediately 

view doctrine allows warrantless seizure of items when: (1) police observe item 

I 

California 496 U.S. 128, 110 S.Ct. 23.01, 1 JO L.Ed.2d 112 (l 990)) (stating plain 

Brown, 23 A.3d 544, 551-52 (Pa.Super.2011) (en bane) (citing Horton v. 

the front seat of a vehicle, under the plain view doctrine. citing Commonwealth v. 

the Superior Court held that a Police Officer properly seized drugs discovered in 

3. In the case of Commonwealth v. Guzman, 44 A.3d 688, 695 (Pa. Super. 2012) 

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11 

lll. Motion to Suppress Evidence/ Forced Abandonment 

17. As Officer Ettore approached the Defendant, he threw a clear plastic baggie to the 

ground. The clear, plastic baggie contained four smaller baggies with a white 

substance inside. The Officer observed the baggic on the ground before arresting 

the Defendant. The contents of the baggie field-tested positively for cocaine. The 

Defendant alleges in his Omnibus Pretrial Motion that this incriminating item was 

abandoned as a result of the .illegal action of Jaw enforcement. He urges this court 

to apply the doctrine of forced abandonment, reasoning that the Officer forced 

him to abandon the baggie through bis illegal seizure of him. Since there was no 

unlawful police action in this case, there can be no "forced abandonment". 

Commonwealth v. Tillman, 423 Pa. Super. 343, 621 A.2d.148 (1993). 

seizure. 

11. The courl finds the seizure of the contraband was within the parameters of the 

plain view exception to the warrant requirement justifying seizure of the items in 

plain view. The Defendant's Constitutional rights were not offended by the 

J 0. Finally, the police officer must have lawful right of access to the objects. Officer 

Ettore had a lawful right of access to an object thrown to the ground on a public 

street. 

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12 

.JAMES F. ND.,ON, JR? ·~ ·- I• (f) • ...: 

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Courtroom 2. 

Trial in the above-captioned matter is scheduled for May S, 2014 at 9:00 A.M. in 

pursuant to the execution of the search warrant shall be adrnissi bJe at trial. 

Defendant's an-est was legal and all evidence seized at the time of Defendant's arrest and 

. WHEREFORE, Defendant's Omnibus Pre-Trial Motion is DENffiD. The 

. cause for the search warrant issued of Defendant's residence. 

incriminating evidence found in plain view. As a result, there was probable 

drugs the Defendant had thrown to the ground on Mahi Street, as 

2. Earlier in the day, on November 20, 2013. Officer Ettore properly seized 

probable cause. 

Darby, PA 19023 was illegal because the search warrant was not based upon 

Darby police obtained to search his residence located at 1 ih N. 2"d St. Apt. B, · 

1. Defendant alleges in his "Suppression Motion" that the search warrant that the 

Ill. Motion to Suppress Evidence/Search Warrnnt 

coercion. 

Defendant's abandonment of the cont raband was not the result of any police 

18. In the case sub Judice, the doctrine of forced abandonment is inapposite. The 

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