### 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 Judgm ent 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 judgmen t 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
s imple 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 po lice performed an initial Terry stop of appellant on November 20, 2013, 2 

### and also subsequent

1 

### 35 P.S. § 780
- 113(a)(30) and (a)(16), resp ectively.
2 

### Terry v. Ohio , 392 U.S. 1 (1969).

### J. S33009/15

- 2
-

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 Controlle d 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 an d 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,

### J. S33009/15

- 3
- (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 v iolation of his rights under the 4 th 

### , 5 th 

### , and 14 th 

### 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. 2 nd 

### Street in Darby, Pennsylvania that the Police searched. 8. The Defendant testified that he lived on the top fl oor apartment, 17B, located at 17 N. 2 nd 

### 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, wh ich 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. 2 nd 

### Street in Darby, Pennsylvania.

### J. S33009/15

- 4 - 10. Subseque nt 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 nd 

### street is a high
- crime and high
- drug area. In fact, the Officer has been involved in f ifty (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 I nformant. The Confidential Informant provided information that the Defendant was staying at 17 N. 2 nd 

### 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 redirec t, 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, att empted to stop the other individual involved in the transaction who ran away. Both the Defendant and the other individual managed to evade the Officers.

### J. S33009/15

- 5 - 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 S treet 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 Defe ndant 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 th e 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 approximatel y (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

### J. S33009/15

- 6
- 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 t estified. 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. 2 nd 

### Street is known to be a h igh
- 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 inci dent. 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.

### J. S33009/15

- 7 - 22. On November 20, 20 13, 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 th e 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 ordere d 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 hi s 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. Ou r 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 suppr ession court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

### J. S33009/15

- 8
-

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 i nvolve 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. Wil liams , 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 rea sonable 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 initia ted the stop had a particularized and objective basis for suspecting the individual stopped.

### J. S33009/15

- 9
-

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 fi nd 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 the ir 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 ap pellant 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.

### J. S33009/15

- 10
-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/10/20151 35 P a . C.S
. §78 0 -J 1 3 ( a) ( 3 0 ) 1 35 P ll. C.S
. §780 -l 1 3 ( a ) (16) 3 35 Pa.C.S
. §78 0

- l 13 ( a)(32) 4 1 8 J>a.C.S
. §780 -1 I 3 ( a)( l 8) 5 1 8 J' a .C
. S. §430 4 (a)( I )



### 2. O n Apri l 4, 2 01 4, D e f e nd an t , thro ug h c ouns e l, fil e d a Motion t o Su ppress E viden ce re que s tin g th e s upp ress i o n o f item s found and s e i ze d fro m h i s p ers on : ( 1 ) o n e c l e ar g lass in e b agg i e co ntainin g a white s olid s us p ec t e d of bein g c rack cocain e, ( 2) $ 1 , 081 .00 U.S
. c urr e n c y , 

### (3) key s, and a ( 4 ) a ce ll ph o n e. · 1. 

### On N ovemb e r 20, 20 13, Darb y Borough Police Office r John E ttor e arres t ed and 

### c harged th e D efendant , Caseem Cai n , with: 

### thre e counts o f Po sse s s i o n · With Int e nt l o 

### Delive r a C o ntrolled Substanc e '(Cocaine), thre e co u nt s P ossess ion o f a C o n tr oll e d S ub s tanc e, 2 

### (C ocaine) ; three counts of Poss e s s i o n of Dru g Paraph e mali a . i S e l ling C o ntrolled Sub s tance Without Labe l , 11 

### (Xanax) and Endan g erin g We lfar e o f Children .s I. 

### FINDINGS OF FACT Th e Court finds as foJlo ws : ORD ERE D AND D E CREED that th e Motion is DENIED. " S u pp r essio n Motion " and the Suppr essi on He arin g held on April 16, 2014 , it 

### is hereby AND N OW , th i s 29th day 

### o f A pril , 2014 upon conside r ati on of 

### th e Defendant 's ORDER DENYING DEFENDANT'S SUPPRESSION MOTION M atth ew D eb[ucc i , Es qu i r e, A ss i stan t D is tric t Att orn ey fo r th e C ommonwealth Ke n neth Se xt o n , Esq uir e,A ttorne y fo r the D ef endant CASEEMCAfN COMM O NWF..A LT HO F P F.NNS Y LV ANIA NO. 825 0- 2 0 13



### v. IN TIIJ i COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA CRJMINAL DIVISION Circulated 07/28/2015 03:44 PM

### 2 6 T hu Defe n dan t' s S uppre ssion Motion (at av ermcnt 1 I ) alle ges that th e D e fendant gave inc u l patory state men ts conce rnin g th e ab o v e c rim es as a res u lt of bi s s to p and arres t but th e issu e o f an I n criminating statement was n ot raise d at th e Suppres si o n Hearin g .

10
. Sub s equ e nt t o thi s d e t e rmi nation , part-time 

### P o lice Officer John E ttore , an 

### Officer with the 

### Darby B o r o u g h Po li ce D e partment, 

### testified. O f ficer Ettore te s tifi e d that 1 7 N. 

### 2 " d str ee t is a high- c rim e an d high

- dru g area. I n fa c t, th e 9. The Co urt determin ed th at the Defe n dant had an ex pectatio n o f privacy 

### in apartment l 7B located at 17 N. 2 11 <l Stre e t 

### in Darb y , Pennsy lv ania
. 8
. The Defe n dant testified that be lived o n the top floor apartment, 17B, l ocated al 17 N. 2"d Street 

### in Darby , Delaware County, P en n sylvania. Toe Defendant h ad been re n ti n g the apartment from Crys tal Dav i s and h er mother , Michelle Dav i s. He resided at the 

### apartme n t w i th Crystal 

### and Mic h e ll e Dav i s. He bad r e nted the apartmen t for ab out a month
. 

### 111e Defe n dant possessed ke ys for the apartment. The D ef

endant paid Miche ll e Davis $200

. 00 per mo n th fo r re nt. He paid cas h and had receipts 

### th.at were s e i z ed by the Police at the time o f the rai d. The receipts , which were from a receipt form in d icating rent , were locate d on a shelf, wh e n th e police seized them. 7
. The Suppression Hearing began with argume n ts to de termi ne 

### wheth e r the Defe n dant had an expectatio n of p rivacy 

### in the apartment l ocated at 17 N. 2nd Street 

### in Darby, Pennsylvania that the Police searched. 6. On April 16, 2014, a Su p pression Hearing was h e ld on Defendant' s "S u p pr ession Motion
. " 5. T h e Defe n dant alleges that the search p u rsu ant to search warrant was in v iolati on o f his rights under the 4th , 5lli and 

### 14 t 11 ame ndm ents of the U.S
. Constitu ti o n , Articl e I , Section 8 an d Sec tion 9 of the Pennsylvania Constitutio n . 4. Defendan t, throu g h counsel , in his Motion to Suppre s s Evidence al s o request s the suppre ss io n of item s found and sei z ed a s a result 

### o f a search 

### warrant o f hi s re s idence
. T h e foJlowing H e ms were seized from his res i dence: ( I ) a cellophane wrappe r co ntaining susp e cted cocaine, (2) ren t al rece i pts , (3) a postal receipt, 

### ( 4 ) an appointm e nt card from Adult Pr obatio n , (5) thre e five doJJar bills, (6) tw o small gl ass i n e baggies, (7) a d i g i tal s c al e , (8) on e unmarked prescription bottle contai ning blue p ill s, (9) a 

### bag of ch an g e containing approximately $36

. 85 , (10) two parcels of mail a ddressed l o the defe n dant , ( 11 ) one apple-des i gned clear baggie, (12) one composition no t e b ook , ( 13 ) numerou s correspondence betw een the defendant and hi s attorne y, the courts, and priso n , and ( 14) men's clothing"
. 3. The Defendant alleges that hi s s top , s earch , and arrest were made without rea s onable suspicion and/or probab l e caus e. Circulated 07/28/2015 03:44 PM

### 3 16. As soon as Officer Ettore observed the Defendant pull something 

### from his pocket, Officer Ettore called Officer 

### Paul McGrenera. Office r 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 Defendan t 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 l eft 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. 1 3. 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 McGre n era., 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", whe n the Bar was 

### not open, and also in the evening. 1 1. Officer Ettore testified that he previously knew of the Defendant from the Co u nty Drug Task Force and through information received from a Confidential 

### I nformant, 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 tran s actions. Desp i te 

### 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. Circulated 07/28/2015 03:44 PM

### 4 23. Office !' McGrenera tes tifi e d that he pulled up onto the sidewalk upon whi c h th e Defendant was walkin g . As the Offi ce r exi t ed his patro l vehic l e, h e saw the Defendant di scard a clear , plastic b a ggie
. A t thi s po i nt , the Defendant was ordered to 

### pla ce hi s hand s o n the patrol v e hicle. r 

### 22. On November 20 , 2013 , Officer McGrene r a was on duty and in uniform
. The Offic e r received a call from Officer E ttore that Officer Ettore was goin g to make an i nvesti gatory s top. Officer Mcfirenera testified that he did n ot i ntend to arrest th e Def

e ndant on the mornin g o f th e incident. 2 1. Officer McGrenera testified that he knew the Defendant prior to this incident. In the month prior to this inciden t , Office r Mcflrenera had observed the Defendant in the same area around the Wishing Well Bar both in the morning and 

### evening hour s . The Wishing Well Bar is not op e n duri ng the morning hour s . 2 0. After Office r Ettore's testim o ny, 

### Officer Paul 

### Mcflrenera testified
. Officer -» 

### McGrenera has been a Yeadon Boro ug h Patrolman for the past five years. On the date of the incident, Officer McGrenera h ad been a Darb y Borough Patrolman for three years. Officer Mcflrenera t estified that N. 2nd 

### Stre e t is known to be a high

- crime and high

- drug area. Officer McGrenera has been involved in more than 

### 100 investigations fo r drugs and mo re than 50 arrests for drugs in the vicinity of this incident. 19
. On 

### cross examination, Officer Ettore testified that h e prepared the Affidavit of Probab l e Cause for the search warrant. The basis for the searc h warrant was the contraband recovered at the stop. 18. The bagg i e that Officer Ettore observed the Defendant discard was a clear , plas ti c baggie containi ng four smaller baggies with a white substance insid e . The Officer observed the baggie on the ground before te l ling the Defendant to p l ace his h ands on the vehicle. The Defendan t was the n p l aced under arrest. The contents of the baggie fie l d-tested positively fol' cocai n e . 17
. Officers Ettore and McGrenera exi t ed their respective vehicles with no weapons drawn. When Officer Ettore exited his vehicle, he was approximately (3) 

### three to ( 4) 

### four fee t away from the Defendant an d saw the Defendant throw a c l ear, plasti c 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 Defendan t threw the baggie in the Officer' s direction. At this poin t, neither Officer had spoken to the Defendan t. Etto re te s tified that neither h e nor Officer McGrenern activated their overhead lights at th e time of the stop. Circulated 07/28/2015 03:44 PM

### 5 1999)
. Fo urth Amend m ent. See Commo n wealth v . B r adlcyJ 724 A.2d 351 (Pa
. Super. which need not be supported 

### by any level of susp i c i o n . 

### It d ocs n ot imp licate the 3
. The fir s t of these i nteractions is a " m ere encounter", or a re qu est for i nformatio n , detentio n . " chara ct erized as a "me r e encounte r ," an "i nvestigati ve de t entio n , " or a "c u stodial T he Co urt d e termined th at intera ction s betwee n p o l i c e an d c iti ze n s may be m o re in trusive
. Co mm o n wealth v . B oswell. 55 4 Pa
. 275, 72 1 A.2 d 336 (1998). s usp ic io n t o j u stify th eir interacti o ns with c i ti ze n s a s tho s e in te raction s b eco m e P e nn sy l v ani a re quire la w enf orc emen t o ffice rs t o de mon str ate a scendi n g le vels of 2
. To 

### sec ur e th e righ t of 

### its c iti ze n s to be free fr om intrusion s, co urt s 

### in Co mmo nw eal th v . B l air , 575 A.2d 593, 596 ( P a . S up er . 1 9 9 0 )
. and seizures, th ereby e nsurin g the "righ t of ea c h i n di vidual to be l et alo n e." of the Pe nn sy l v an ia Cons titution protec t s indi v i du al s fr om unr e aso n able searches 1
. The F ourth Am endmen t to the Uni te d S tat es Co nstituti o n and Article I , Section 8 

### I
. Moti o n to S uppress Evidence/Rea s onable Susp i cion ll. C O NCL USIONS OF LAW

24. Th e De fendant also tes ti fi ed
. Th e Defendant testi fied th at he h a d bee n walking along th e sidewalk when two police office r s p ull ed u p and t o l d him to put his hands u p. Th e Defendant co n tends th at he took h is h an ds o ut of his pocket and, 

### as a result , the bagg i e 

### fe ll out of hi s pocket. On cross-examin atio n , the Defe ndan t testified 

### that the Officers did not ac tivate th eir o v e rhead l ights on their patro l vehicles. Circulated 07/28/2015 03:44 PM

### 6 p r obable cause. l n re O.A., 717 A.2d 490, 495 (Pa.1998). 

### all relevant facts whe n determining whether a 

### warrantl ess an- est was supported 

### by 8. In co n side ri ng the totality of the circums t ances, the co u rt must take into account 558 Pa
. 6 1 7, 737 A.2d 741 

### ( 1 999). Commonweal th v . Riley, 7 1 5 A.2d I 131, 1135 (Pa
. S u pe r , 1998), appeal den i ed, to t ality of the circ u mstances through the eyes of a trai ned officer. See, 7
. To evaluat e th e le v e l of susp i cio n possessed 

### by an office r , til e co urt mu s t v i ew th e Super. 19 9 9). offense h a s b een committed. Commonwea l fu v . M ye r s, 7 2 8 A.2d 9 6 0, 962 (Pa. know l e d ge that would warrant a p e rson of r e as onab le cau ti o n to believe an 

### cause exis ts if there 

### are facts and c ir cums t anc e s within 

### th e po lic e officer's 6. The third l evel 

### is a c u stodial detentio n , w hi ch requi r es p r obabl e c au se . Probable facts in li ght of hi s or her expe rience. Jackso n, 698 A
. 2d at 573. po i nt to 

### spec i fic and articulable facts 

### and reasonab l e infere n ces drawn from those In 

### o rd er to de m o n strate reasonable susp i cion, the police officer mu st b e able to Co mm o n weal th v. Jackson
. 428 Pa.S u per. 246, 249, 630 A.2d 1231, 1233 (1993). possess r easonable and articulab l e suspicion that criminal acti v ity is afoot.
• I 5
. Tf the interac ti o n ri ses to the level of an investigative dete n tion, the police must seized i s e n gaged in criminal activity
. 

### i d. 

### Terry s t op, whic h must be supporte d 

### by reasonab l e suspicio n th at the person 4. TI1e seco n d level i s an "i n vestigative de t entio n ," o r as commo n ly referred to a Circulated 07/28/2015 03:44 PM

### 7 9
. 

### In the case of ~mmonweal tb 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 leg i timate l y form the basis 

### for probable cause whe r e, for example, "police independently corr oborate the 

### tip." Commonweal th v. Luv
. 735 A.2d 87, 90 (Pa. 1999). 11
. The Pennsy l vania 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 es t ablish probab l e cause . See, Commo n wealth v. 

### 0.A

. , 717 A.2d 490 (Pa. 1 998). 12
. In the case 

### sub Judice, the 

### Darby police had receive d information from a reliable 

### CI, advis i ng them. that the defendant was involved in dru g activity
. The information given to the police provid e d predictive behav i or th at 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

c orroborate the Cl's tip and observed the Defendant engage in hand to hand drug transactions on prior occasions to Novem ber 20, 2013
. 1 3
. 

### It merits emphasis that this case involves: (1) th e tip of a 

### CI, (2 ) police

s urveillance which confirmed the predic tive information provided by the CI , ( 3 ) expe rienced officer s 

### in a high-crime, high-drug area (4) both Officers observed Defendant's prior action s 

### which the Officers believed to be drug transactions and ( 4) Officer Ettore and Offic e r Mcflrenera o bserving the Defendant 

### throwing contraband in plain view. Circulated 07/28/2015 03:44 PM

### 8 J4. The totality of circums t ances an sing from th e Cl's tip plus the Officers' independe n t corroboration thro u gh surveillance prov i ded the Office r w i th probable cause 

### to arrest the Defendant without a warr ant. 15
. This Cou rt finds that the u nderly i ng initial enco un ter between Of fi ce r E ttore and the Defendan t began a s an in v es ti g ative detention
. Office r Ett o re rece i ved a radio
transmission that morning that the Defendant had 

### le ft h i s resi d e n ce . The Officer

o b served th e D efendant walkin g on Mai n Stree t i n D arb y, Pe nn sy l vani a i n the direc ti on of the W i s hi ng Well Bar
. T hi s i s a h i g h

- dru g , high

- crime 

### area Prior to stopp in g Defe ndan t on November 20, 20 13 , Of fi cer Ettore had o b se rved th e De fen dant travel in g on 

### Main Stree t and observ ed the D efe ndan t enga g e 

### in h and 

### to h an d tran sactio n s . D uri ng these transactions, mon e y was e xc han ge d for an item. These tr ans acti ons ha d occurre d in the m o rnin g ne ar the " Wi s hin g We ll Bar",

w h en the B ar was not open, and also 

### in th e ev e nin g. T h e C ourt fin d s that the Officer's o b servati ons al one gave rise to a reason abl e and arti c ul abl e susp i cion of

s ome ill egal ac tiv i ty j u stifying a brief investi g ati ve detentio n . 16. When the Office r arri ved at the s c ene, he ob served th e Defendant take something from his l eft po c ket an d throw it t o th e ground , Whe n Officer Etto r e ex i ted 

### his

ve hi cle , he was approx i mately (3) three to (4) four feet 

### away fro m the Defendant when be o b served the Defendant throw a clear, plas ti c b agg i e on th e ground. Ther e was 110 conversati on between the Defendant and the Officer p rio r to the Officer o b serving th e Defendan t throwing th e contraband. The bagg i e that Officer E tto r e observed the D e fendant discard was determined by the Officer to be a

c l ear, p l astic baggie c o ntaining four smaller bagg i es with a wh i te s ubstance Circulated 07/28/2015 03:44 PM9 2
. T h e plain view doctrine pe rmits th e warrantl e ss seizure of evidence in plain view when : ( 1 ) an officer v iews
. th e object from a lawful vantage point ; and (2) 

### it is imm e diat e ly apparent 

### to him that the object is incriminating and (3) the pol i c e must have a lawful ri g ht of acce s s to the object. 

### Common w ealth v ~ McCre e , 5 9 2 

### Pa
. 2 38 , 9 2 4 A.2d 621 (2007 )
. inside
. The Officer observed the baggie on the groun d befo r e telling the D e fendant to place his hands on the ve h icle. The contents of tbe baggio f ie l dtested positive l y for co caine
. 10
. Th e testimony of 

### the two Officer s was credible
. 11. The court fi nd s th at based upon the total ity of the circumstanc e s, Officers E ttore and McGrenera had reasonable suspicion that crimi nal activity was afoot to justify stopping the Defendant. However, upon approach i ng the Defe n dant the Officers had not only reasonable suspicion but h a d probab l e cause to arrest the Defen d ant because they observed the Defendant throw contraband to the ground
. 1 2
. Consequently, this Court ultim ately finds that there was no u nlawfu l action ofla w enforcement 

### in violation of the Defendant's rights un d er Article I, Section 8 of the Constitution of the Commonwealth 

### of Pennsyl v ania or 

### the 

### 4th, 5th and 

### 14th Amendments to the United States Constituti on. 

### II. Mo tio n to S u p pres s Evi d e n ce/P l ai n V i e w 1
. The U n ite d States Supreme Court has h eld that there is no r easonab l e expectation of privacy whe r e an object is in plain view
. Comm o nwealth v . Petro l l, 738 A.2d 99 3, 999 (Pa. 1999) 

### citing Ill. v. Gates, 462 U.S. 213 ( 1 983). Circulated 07/28/2015 03:44 PM

### 10 apparen t to 

### th e trained Officer that th e c l ear p l astic bagg i c co n taine d contraband
. apparent to the 

### o ffi cer that 

### th e object i s 

### i n c ri mi natin g. Here, it 

## was immediately 9. The secon d p ro n g of th e plain view anal ys i s requ i r es th at it 

### mu st be immed i ately vau t age poin t. Thi s me ets the fi rst p r ong of the p l ain v ie w analysis
. viewed the co ntr aband from a public s treet o n M ai n Street in Darby, P A , a l awfu l Etto re immed i ate l y r ecogn i ze d the co n tents as ill egal n arco tic s. T he Officer ques ti o n were l o cate d in a tr anspare n t pack a g e vie w e d 

### in plai n vie w. O fficer 6
. T h e facts in 

### the 

# case sub Judice arc s imil ar 

### to tho s e in Guzm an. Th e dru gs i n Commonwe al th v . Guzman, 44A.3 d 6 8 8 , 695 ( Pa
. S u per .. 2 0 12)
. Here, Offic er W e tze l w as in a l a w fu l van tag e p oi nt o ut side the SUV. Bec au s e A ppe l l ee ha d left th e d oo r open wh e n h e vo lu n taril y j u mped o u t of th e car , Offic er Wetzel needed on ly t o s tan d out si d e th e car and l o o k i nside
. Th e dru gs in qu es ti on were l ocate d i n a tr ansp arent pa c k ag e on the fl oo r , s tic kin g ou t from bene ath th e pas s e nger s e at ; and Offi c er W et zel imm e d i ate ly recognized the c ont e nt s as ille gal narc o tics
. app ar ent ; an d (3) police hav e lawf u l ri g h t of access to objectj
. The co u rt opined: fr om lawful van tage point ; (2) i n c riminating nature o f i te rn is imm e di ate l y vi ew doctrin e all o ws warrantless se i z ur e of ite m s wh en : ( 1 ) poli c e observe it e m I 

### Cal i forni a 496 U
. S. 1 2 8 , 110 S
. Ct. 23. 0 1, 1 JO L
. E d .2d 1 1 2 (l 

### 99 0 )) (s t ating plain Brown , 23 A.3 d 544 , 551

- 52 (Pa
. S u pe r . 2 0 11 ) (en ba n e) (c i ti n g H ort on v. th e fr on t seat of a veh i c l e , un d er th e p l ai n v iew d oc trine
. citing Commonweal th v. the S u pe ri o r Cou rt h e l d th at a Po li ce Officer properl y se i z ed dru gs dis c ove red i n 3
. 

### In th e case o f C o mm o n wealth v . G u zman, 44 A.3 d 

### 688 , 695 ( P a . S u per . 2012) Circulated 07/28/2015 03:44 PM

### 11

lll. Mo ti o n t o S u p p ress Evid e n c e/ For ced Ab an don m e nt 17
. A s Officer Etto r e approached the Defendant, he threw a clear p l astic b aggie to the ground. The c l ear, plastic baggie co n tained four smaller baggies with a w h ite substan ce i nside. The Officer observed the baggic on the ground before arresting the Defendant. The conte n ts of the baggie field

- t e ste d p o sitive l y for cocaine. The Defendant a ll eges 

### in his Omnibus Pr etri al Mo ti on that this incriminati n g item was 

### abandoned as a res u lt of 

### the .illegal action of Jaw enforcement
. He urges this court to apply the doctrine of forced abandonment, reaso n i n g that the Officer forced 

### him to aband o n the baggie through bis illegal seizure of him. Since there was n o unlawful police action in thi s case, there can be no "forced abandonm e nt". Commonwea l th v. Tillman, 423 Pa. Super
. 343, 621 A.2d
. 148 (1993). se i zure. 1 1
. 

### T h e courl finds the s eizure of the contraband was within the parameters of the p l ain view exception to the warrant requirement justifying seizure of the items 

### in plain view. The Defendan t's Constitutional rights were not offended by the J 0. Finally, the police officer must have l awful rig h t of access to the objects. Officer Ettore had a l awful right of access to an object thrown to the ground on a public

s treet. Circulated 07/28/2015 03:44 PM

### 12 

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

. r- '

..

. ? , ; , . 

# '"'I '

· - ··~i ' "' l ::J: 11 < ::.. + ;; .. ;:" ~ I ~ .. 

## .. . . C ou rtr o om 2. Tri al 

### in the ab ov e - capti on e d m att e r is sc h edul e d fo r M ay S , 2014 at 9: 0 0 A.M. in pur s uant to the execution o f the search warrant sh all be adrni ss i bJe at trial. Defen d ant's an-es t was l egal an d all e viden ce s e i z ed at th e tim e of Defe nd ant's arr es t and 

# . WHEREFORE, D e fe n dan t 's O mn ib u s Pr e-Trial M o ti o n i s DENffiD
. The . cause fo r th e search warr an t i s s u ed of D efe nd ant's residence. incri minati n g evidence fo u nd i n p l ain v i ew. As a result, there w as probable drugs th e Defe nd ant h ad thrown to the gro und o n Mahi S tr ee t, as 2. Earlier in the day , on No v e mbe r 20, 2 01 3. Offi cer Ett or e p ro perl y seized probab le cause . D arb y , PA 1 9023 was i ll egal b ecaus e th e search w arr an t w as n o t b a s e d upo n Darby police obtained t o search 

### hi s resi d ence l ocated at 1 

### ih N
. 

### 2 " d St. Apt. B , · 

### 1
. Defendan t al l eges in h is 

### "Su pp ressio n M otion" 

### that th e se ar ch w arrant th at the 

### Ill. M o tion t o Suppres s E vidence/S e arch Warrnnt

coer c io n . 

### Defe nd an t 's ab and onment of 

### th e co nt rab and w as 

### no t th e 

### res ult o f any p o l ic e 18. In the case s ub J u dice, th e doctrine o f forced aban donment i s inappos i t e. T h e Circulated 07/28/2015 03:44 PM