J-S34019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JASON STRANGE

                            Appellant                No. 2770 EDA 2016


         Appeal from the Judgment of Sentence Dated August 3, 2016
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001639-2016

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                       FILED SEPTEMBER 11, 2017

        Appellant Jason Strange appeals from the judgment of sentence

entered following his convictions for possession with intent to deliver an

illegal substance and knowing and intentional possession of an illegal

substance1 on the basis that his motion to suppress should have been

granted by the trial court. We affirm.

        On June 9, 2016, the trial court held a hearing on Appellant’s motion

to suppress the illegal drugs recovered by the police at the time of his

arrest. Appellant contended that the police improperly seized him without

reasonable suspicion or probable cause. At the hearing, Officer Brian

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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Schneider testified that on November 28, 2015, he had been on patrol with

his partner in Philadelphia when he observed William Wible hand money to

Appellant in exchange for small unidentifiable objects. Officer Schneider had

made several narcotics arrests during his nineteen years with the police, and

he suspected that he had witnessed a drug transaction. Officer Schneider

and his partner exited their vehicle and approached the men. As they

approached, Wible dropped the objects he had just received from Appellant

onto the ground, and Appellant dropped a sandwich bag and an amber pill

bottle. Officer Schneider yelled “Don’t move,” and he and his partner

arrested Wible and Appellant. The officers recovered eight blue pills that

Wible had dropped, and the sandwich bag and pill bottle that Appellant had

dropped. The sandwich bag contained 28 blue pills and the pill bottle

contained four different blue pills and several large crystal rocks of

methamphetamine.2 Appellant also had $374 on his person at the time of his

arrest.

        The trial court denied Appellant’s motion to suppress, and, following a

bench trial, Appellant was found guilty of both charges.3 Appellant was

sentenced to eleven and one-half to twenty-three months’ incarceration with

five years’ consecutive probation. This timely appeal followed.
____________________________________________
2
    All of the blue pills were determined to be Xanax.
3
  Officer Schneider’s partner, Officer John Martin, testified at Appellant’s
bench trial.



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       Appellant raises the following issue for our review: “Whether the trial

court erred in denying the Motion to Suppress because Appellant was seized

without reasonable suspicion prior to discarding drugs?” Appellant’s Brief at

vi.

       Our review of a trial court’s suppression ruling is guided by the

following:

          Our standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is limited to determining
       whether the factual findings are supported by the [suppression 4]
       record and whether the legal conclusions drawn from those facts
       are correct. Where the prosecution prevailed in the suppression
       court, we may consider only the Commonwealth’s evidence 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 factual findings of the trial
       court, we are bound by those facts and may reverse only if the
       legal conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted).

       Appellant argues that the drugs should be suppressed because they

were recovered after the police unlawfully seized him. First, according to

Appellant, he “was seized by police when two uniformed, armed officers

stopped their marked patrol car within ten feet of him and immediately

began walking towards him to detain him.” Appellant’s Brief at xi, 2-4 (citing

Commonwealth v. Bennett, 604 A.2d 276, 282-83 (Pa. Super. 1992)

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4
  “[O]ur scope of review is limited to the evidence presented at the
suppression hearing.” Commonwealth v. Davis, 102 A.3d 996, 999 (Pa.
Super. 2014) (citation omitted), appeal denied, 113 A.3d 278 (Pa. 2015).



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(“[e]xamples of circumstances that might indicate a seizure, even where the

person did not attempt to leave, would be the threatening presence of

several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled”)).

Appellant claims that the circumstances “showed an immediate intent on the

part of the officers to detain” him. Id. at 4.

      Second, Appellant contends that at the time he was seized, the officers

lacked reasonable suspicion or probable cause to detain him. Appellant’s

Brief at 4-5. He points out that the officers had not at that point seen any

drugs, and there was no testimony establishing the area as a high-crime

neighborhood. Id. (citing Commonwealth v. Thompson, 985 A.2d 928

(Pa. Super. 2009) (holding that probable cause may exist where trained

narcotics officers observe the exchange of money for small objects in a high-

crime area)). Appellant asserts that the “forced abandonment doctrine”

therefore mandates that the drugs he dropped after the officers’ illegal

actions should have been suppressed. Id. at 1-2 (citing Commonwealth v.

Matos, 672 A.2d 769, 773 (Pa. 1996) (holding that discarded contraband

should be suppressed where the seizure was lacking in reasonable suspicion

or probable cause)).

      The trial court found that (1) at the point the officers exited their

vehicle and observed Appellant discard items on the ground, they had


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“displayed no physical force or coercive authority towards [Appellant]” and

the encounter therefore did not rise to the level of an investigative

detention; (2) at the point Officer Schneider yelled “Don’t move,” he

initiated an investigative detention that was supported by reasonable

suspicion founded on the observation of the discarded items. See Trial Ct.

Op., 11/21/16, at 5-6 (unpaginated).

     We   address    Appellant’s   contentions   pursuant   to   the   following

framework:

     Our courts have long recognized three levels of interaction that
     occur between the police and citizens that are relevant to the
     analysis of whether a particular search or seizure conforms to
     the requirements of U.S. CONST. amend. IV and [PA.] CONST.
     art. I, § 8.

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

omitted), appeal denied, 87 A.3d 320 (Pa. 2014). Only the second and

third types of interactions constitute “seizures.” Commonwealth v. Lyles,

54 A.3d 76, 79 (Pa. Super. 2012), aff'd, 97 A.3d 298 (Pa. 2014). In

contrast, the first type, “a ‘mere encounter,’ occurs if the police simply

approach a person on a public street in order to make inquiries.”




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Commonwealth v. Peters, 642 A.2d 1126, 1129 (Pa. Super.) (en banc),

appeal denied, 649 A.2d 670 (Pa. 1994).5

       Our courts apply an objective standard in determining whether the

police conduct amounts to a seizure, as opposed to a mere encounter

between a citizen and a police officer. Matos, 672 A.2d at 774.6 “In

evaluating the circumstances, the focus is directed toward whether, by

means of physical force or show of authority, the citizen-subject’s movement

has in some way been restrained.” Commonwealth v. Strickler, 757 A.2d

884, 890 (Pa. 2000) (footnotes and some citations omitted). Among the

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5
    As the Supreme Court stated in Commonwealth v. Reid:

       Law enforcement officers do not violate the Fourth Amendment
       by merely approaching an individual on the street or in another
       public place, by asking him if he is willing to answer some
       questions, by putting questions to him if the person is willing to
       listen, or by offering in evidence in a criminal prosecution his
       voluntary answers to such questions.

Reid, 811 A.2d 530, 545 (Pa. 2002) (brackets and citation omitted), cert.
denied, 540 U.S. 850 (2003).
6
   Some federal jurisprudence applies a more technical definition of a
“seizure” for Fourth Amendment purposes, focusing on whether an
application of physical force resulted in taking physical control over the
person. See California v. Hodari D., 499 U.S. 621 (1991). In light of the
greater privacy protections historically recognized under Article I, Section 8
of the Pennsylvania Constitution, the Pennsylvania Supreme Court has
rejected this technical analysis in cases dealing with the abandonment of
contraband during police encounters and pursuits. See Matos, 672 A.2d at
772-76. The discussion in the text applies the relevant objective standards
without regard to those aspects of federal jurisprudence that have been
rejected in Pennsylvania. To the extent we conclude that police conduct was
valid under the Pennsylvania Constitution, it necessarily conforms to the
United States Constitution as well.


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factors considered are “the demeanor of the police officer, the manner of

expression used by the officer in addressing the citizen, and the content of

the interrogatories or statements.” Commonwealth v. Mendenhall, 715

A.2d 1117, 1119 (Pa. 1998). Still other factors include:

      the number of officers present during the interaction; whether
      the officer informs the citizen they are suspected of criminal
      activity; the officer's demeanor and tone of voice; the location
      and timing of the interaction; the visible presence of weapons on
      the officer; and the questions asked. Otherwise inoffensive
      contact between a member of the public and the police cannot,
      as a matter of law, amount to a seizure of that person.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa.Super.2008) (en

banc) (citation omitted).

      Because the question “whether the police needed some level of

requisite cause at the time they initially approached” the defendant is

“governed by the type of encounter that the police initiated when they

approached” the defendant, In re D.M., 781 A.2d 1161, 1164 (Pa. 2001),

we begin our analysis of Appellant’s issue by categorizing his encounter with

the police. We considered this question in the context of pedestrians’

abandonment of contraband upon contact with police in Commonwealth v.

Byrd, 987 A.2d 786, 791 (Pa. Super. 2009), and Commonwealth v.

Pizarro, 723 A.2d 675 (Pa. Super. 1998), and those decisions are

instructive here.

      In Pizarro, two officers in a marked patrol car observed the defendant

engage in a suspected drug transaction with another man on the street. The


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defendant ran to a corner property, retrieved items from a brown paper bag,

and then gave the items to the driver of a Buick in exchange for money. As

the officers prepared to approach the defendant, a second marked patrol car

arrived on the scene. Upon seeing that patrol car, the defendant dropped the

brown paper bag on the lawn and fled in the opposite direction from that

patrol car. The two officers from the first patrol car followed the defendant

into a grocery store and detained him, and they then retrieved the brown

paper bag left behind on the lawn, which turned out to contain illegal

narcotics. In reversing that trial court’s order suppressing the narcotics, we

stated:

             A police cruiser passing through the neighborhood on
      routine patrol does not amount to police coercion compelling the
      abandonment of contraband. When the cruiser passed through
      the neighborhood, [the defendant and his cohort] were not
      deprived of their freedom in any significant way, nor were they
      placed in a situation in which they could believe reasonably that
      their freedom of action was restricted by police conduct. None of
      the police officers engaged in activity which could by any stretch
      of the imagination be understood to be an act of unlawful
      coercion. It was [the defendant’s] fear of detection, as opposed
      to any threat or show of force by the police, that induced him to
      flee the scene. [The defendant’s] sensitivity to the risk of police
      detection does not establish that his abandonment was forced.
      Hence, we conclude that [the defendant] voluntarily abandoned
      [the brown paper bag], thus relinquishing any expectation of
      privacy over the contents therein.

             The suppression court found that [the police] lacked
      justification to detain [the defendant] at the grocery and,
      therefore, suppressed the narcotics that [the officer] had
      recovered from the lawn. . . . This conclusion is fundamentally
      flawed as [the defendant] had abandoned the [narcotics] when
      he ran from the cruiser before the police officers initiated
      pursuit. The [narcotics] were not the fruit of an illegal seizure

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     because it was “seized independently of any unlawful police
     conduct, i.e., it was abandoned prior to the police showing any
     interest in [the defendant].”

Pizarro, 723 A.2d at 679–80 (citations and emphasis omitted).

     In Byrd, a police caravan, without sirens, police lights, or high speed,

was traveling down a one-way street in the direction opposite of traffic.

Byrd, 987 A.2d at 787-88. The defendant saw the caravan approaching from

about fifty to sixty feet away, and threw something under a parked vehicle.

Id. The police noticed the defendant’s action, frisked and detained him, and

then retrieved what he had discarded, which was a handgun. Id. We found

that the police activity did not coerce the abandonment of the gun and it was

therefore admissible into evidence. Id. at 793-94. We stated:

     [The defendant] was not deprived of his freedom in any
     significant way nor could he reasonably believe that his freedom
     of action was being restricted by police conduct prior to
     abandoning the handgun. . . . As in Pizarro, it is clear to this
     Court that it was [the defendant’s] own fear of detection, as
     opposed to any threat or show of force by the police, that
     induced him to abandon the handgun.

Id. at 793.

     Byrd and Pizarro establish that where a pedestrian defendant has

abandoned contraband in response to an approaching police vehicle, such

police behavior does not warrant the suppression of the abandoned

evidence. Similar cases establish that where law enforcement officers have

merely exited a police vehicle and approached a pedestrian defendant, prior

to communicating orders to that defendant or giving chase, no seizure has


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occurred. See, e.g., Commonwealth v. Hall, 380 A.2d 1238, 1241 (Pa.

1977) (when plainclothes police officers made a u-turn, double-parked their

unmarked car, and approached a defendant, and the defendant dropped

contraband to the ground when the officers were ten feet away, the actions

of the officers did not constitute a seizure and the evidence should not have

been suppressed); see also Lyles, 97 A.3d at 300-06 (where uniformed

officers exited their marked police vehicle, without activating their sirens or

lights or    brandishing weapons, and              began questioning a pedestrian

defendant, no seizure had occurred).7 In light of these decisions, we agree

with the trial court that at the time Appellant abandoned the drugs, he had

not been seized by the police.

       The record shows that when Appellant discarded the contraband, the

police officers had merely stopped and exited their vehicle and begun to

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7
  See also Commonwealth v. McCoy, 154 A.3d 813, 818-19 (Pa. Super.
2017) (where marked police car approached defendant and began to exit
vehicle, and defendant abandoned contraband and fled in response, no
seizure had occurred at the time of abandonment); In the Interest of
Evans, 717 A.2d 542, 545 (Pa. Super. 1998) (when plainclothes officers
exited their unmarked vehicle and defendant abandoned contraband, the
evidence was not subject to suppression because “[s]tepping out of a police
car is not unlawful police action under any circumstances”), appeal denied,
736 A.2d 604 (Pa. 1999); Commonwealth v. Riley, 715 A.2d 1131, 1134
(Pa. Super. 1998) (where, “[p]rior to [the defendant’s] dropping the
[contraband], the police pulled up along the sidewalk in an unmarked car
and then exited the vehicle in order to approach [the defendant] and those
with him,” there was “nothing more than a mere approach by a law
enforcement official” that does not need to be supported by any level of
suspicion and carries no official compulsion for the citizen to stop or
respond), appeal denied, 737 A.2d 741 (Pa. 1999).


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approach him. They had not physically engaged Appellant, had not issued

any verbal commands to Appellant, and had not made any overt displays of

force that would cause a reasonable person to conclude that he was not free

to leave. See generally Strickler, 757 A.2d at 890; Collins, 950 A.2d at

1047 n.6. The simple action of stepping out of the police car, given these

facts, was insufficient to have unlawfully coerced Appellant to abandon his

property. See Evans, 717 A.2d at 545. The interaction before Appellant

discarded the drugs therefore rose at most to the level of a mere encounter,

and need not have been supported by reasonable suspicion or probable

cause. See Williams, 73 A.3d at 613.8 Because Appellant had not been

seized at the time he abandoned the narcotics, his motion to suppress was

rightfully denied, and we affirm the judgment of sentence imposed by the

trial court.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017


____________________________________________
8
  We therefore need not decide whether the officers had either reasonable
suspicion or probable cause after Appellant abandoned the drugs.


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