J-A11021-17


                                  2017 PA Super 182

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

NAVARRO BANKS

                                                        No. 922 MDA 2016


                    Appeal from the Order Entered May 9, 2016
                In the Court of Common Pleas of Lycoming County
               Criminal Division at No(s): CP-41-CR-0002158-2015


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

OPINION BY MOULTON, J.:                                  FILED JUNE 12, 2017

       The Commonwealth of Pennsylvania appeals from the May 9, 2016

order entered in the Lycoming County Court of Common Pleas granting

Navarro Banks’ motion to suppress physical evidence. Because we conclude

that the trial court abused its discretion in granting Banks relief on grounds

not asserted in his motion to suppress, we reverse.

       The facts of this case are undisputed. On July 21, 2015, Pennsylvania

Board of Probation and Parole Agent Kriger1 received an anonymous tip that

Banks was violating his parole. Based on this allegation, Agent Kriger and



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       *
           Former Justice specially assigned to the Superior Court.
       1
        Agent Kriger’s first name is not evident from the record. In its
opinion, the trial court errantly refers to Agent Kriger as Agent “Kriner.”
J-A11021-17



Agent Tracy Gross2 (together, “the Agents”) went to Banks’ parole-approved

residence and knocked on the door.             Banks answered the door and spoke

with the Agents on the front porch; Agent Gross did not see any contraband

from the porch and could not remember whether the front door was open

during the conversation. The Agents asked Banks whether “he had anything

in his home that would violate his parole.”           N.T., 4/29/16, at 5.   Banks

admitted that he had a firearm and some synthetic marijuana in the house.

Based on that admission, the Agents entered the residence and located the

firearm, which was hidden behind Banks’ bedroom door, and the synthetic

marijuana, which was in a bag in the living room. The Agents then called

the police, who obtained a search warrant and seized the firearm, the

synthetic marijuana, seven cell phones, a digital scale, and another bag

containing synthetic marijuana.

       Banks was arrested and charged with possession with intent to

manufacture or deliver a controlled substance (“PWID”), possession of a

controlled substance, possession of drug paraphernalia, and persons not to

possess firearms.3      On March 9, 2016, Banks filed a motion to suppress,

arguing that the Agents “lacked reasonable suspicion to search [his]

residence since [the] search was based on an unreliable, uncorroborated,
____________________________________________


       2
        Agent Gross was not assigned to supervise Banks, but was “merely
assisting.” N.T., 4/29/16, at 6.
       3
       35 P.S. §§ 780-113 (a)(30), (a)(16), (a)(32), and 18 Pa.C.S. §
6105(c)(1), respectively.


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J-A11021-17



anonymous tip,” and, as such, the physical evidence recovered from that

search should be suppressed as fruit of the poisonous tree. Mot. to Supp.,

3/9/16.

     On April 29, 2016, the trial court held a hearing on the motion. Banks’

argument at the hearing was consistent with the argument in his written

motion. His counsel stated that “the simple fact that [the Agents] went to

[Banks’] home based on an anonymous tip[,] . . . with the purpose of trying

to find contraband, forms the basis of an unreasonable search because the

tip was not corroborated.” N.T., 4/29/16, at 10. In response, the trial court

asked counsel about the Agents’ initial contact with Banks:

          THE COURT: Okay, let me ask you a question.

          [BANKS’ COUNSEL]: Yes, Your Honor.

          THE COURT: Are you saying that they’re not allowed to
          even go to his house, knock on the door, and ask him
          questions? Because that’s what they said. I mean it’s –
          let me try to ask the question differently. It seems like the
          testimony was, hey we got this tip he was doing stuff he
          shouldn’t have been doing, so we decided to check it out.
          We go to his door, we knock on his door, he comes out, we
          ask him a question, he answers the question. It’s not a
          search at that point, is it? I – I guess that’s what your
          contention is, though.

          [BANKS’ COUNSEL]: Our contention is that at that point
          they have made contact solely because of the
          uncorroborated anonymous tip.        This isn’t a regularly
          scheduled home visit, this isn’t even a random home visit.
          Because the sole purpose was due to this anonymous tip
          that it tainted the whole process, including going to his
          home and submitting him to questioning about what might
          be found within.

          THE COURT: Okay, so . . . your argument is that they’re
          not allowed to even go the home and ask him questions
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J-A11021-17


            based on an anonymous tip, because the asking of
            questions constitutes a search?

            [BANKS’ COUNSEL]:       We would submit that without
            corroborating the evidence – or the . . . tip itself, that it
            was improper for them to place Mr. Banks – to go to Mr.
            Banks’ [] residence and yes, and to – to put him under
            questioning concerning that uncorroborated tip.

            THE COURT: That’s my point. You have to use the search
            and/or seizure language. So what you’re saying is when
            they went there, knocked on the door, and he came out
            and they started asking him questions, that it was a
            search?

            [BANKS’ COUNSEL]: Yes, we would argue that either he
            was seized at that point, and was placed – and that –

            THE COURT: Search or a seizure?

            [BANKS’ COUNSEL]: Yes.

Id. at 10-11. The Commonwealth then argued that the Agents’ actions were

a “knock-and-talk, which is backed up by case law for police officers,” and

that Banks’ admission gave the Agents reasonable suspicion to search under

section 6153(d)(6) of the Prisons and Parole Code.4         Id. at 12.      The trial

court then summarized the Commonwealth’s position:

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       4
           Section 6153(d)(6) provides:

            The existence of reasonable suspicion to search shall be
            determined in accordance with constitutional search and
            seizure provisions as applied by judicial decision.   In
            accordance with such case law, the following factors,
            where applicable, may be taken into account:

               (i)    The observations of agents.

               (ii)   Information provided by others.
(Footnote Continued Next Page)

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J-A11021-17


           THE COURT: So what you’re saying is they had the right
           to go there. At the time they went they knocked on the
           door, he came out, and they just talked to him, and there’s
           nothing that prevents them from just talking to him, and
           once he admitted that there were firearms – that there
           was a firearm and synthetic marijuana, that gave them the
           reasonable suspicion to then conduct the search?

           [COMMONWEALTH]: Correct, Your Honor . . .

Id. at 12-13.

      On May 9, 2016, the trial court granted the motion to suppress. In its

opinion, the trial court outlined the parties’ respective positions but

concluded that “[t]he determinative issue in this case . . . involves the level

of interaction the parole agents had with [Banks] once they went to his

home.”     Trial Ct. Op., 5/9/16, at 3.          The trial court explained that it was

granting    the      motion   to   suppress      because   the   Agents   initiated   an

investigative detention of Banks when they questioned him on the porch.

Id. Finding that the interaction was not a “mere encounter,” the trial court

concluded that “[t]here clearly was a level of ‘official compulsion to stop or
                       _______________________
(Footnote Continued)

             (iii)     The activities of the offender.

             (iv)      Information provided by the offender.

             (v)       The experience of agents with the offender.

             (vi)      The experience of agents in similar circumstances.

             (vii) The prior criminal and supervisory history of the
                   offender.

             (viii) The need to verify compliance with the conditions
                    of supervision.

61 Pa.C.S. § 6153(d)(6).



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J-A11021-17



respond[,]’” and that there was no “credible information” to support the

investigative detention. Id. at 3-4.

       On June 7, 2016, the Commonwealth filed a timely notice of appeal.5

On appeal, the Commonwealth asserts that the trial court erred in granting

Banks’ suppression motion. Our standard of review on such matters is well

settled:

           When the Commonwealth appeals from a suppression
           order, this Court follows a clearly defined scope and
           standard of review. We consider only the evidence from
           the defendant’s witnesses together with the evidence of
           the prosecution that, when read in the context of the
           entire record, remains uncontradicted. This Court must
           first determine whether the record supports the factual
           findings of the suppression court and then determine the
           reasonableness of the inferences and legal conclusions
           drawn from those findings. In appeals where there is no
           meaningful dispute of fact, as in the case sub judice, our
           duty is to determine whether the suppression court
           properly applied the law to the facts of the case.

Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013) (internal

citations and quotation marks omitted).

       The Commonwealth argues that the trial court “erred in granting the

Motion to Suppress because [Banks] failed to raise, in his Motion to

Suppress, an allegation that [he] was illegally detained.” Cmwlth.’s Br. at

14.    The Commonwealth notes that Banks’ motion to suppress “simply

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       5
        The notice of appeal included a certification pursuant to Pennsylvania
Rule of Appellate Procedure 311(d) “that the granting of the Motion to
Suppress terminates or substantially handicaps the prosecution of this case.”
Not. of App., 6/7/16.


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J-A11021-17



alleged that the search of the residence was illegal as the [A]gents lacked

reasonable suspicion to search the residence based on an anonymous tip,”

and did not raise the issue of whether Banks had been seized at the outset

of the conversation on his porch. Id. at 14-15. Thus, the Commonwealth

asserts that Banks waived this issue by failing to include it in his motion to

suppress.6 We agree.

       Pennsylvania Rule of Criminal Procedure 581(D) requires that a motion

to suppress “state specifically and with particularity the evidence sought to

be suppressed, the grounds for suppression, and the facts and events in

support thereof.” Pa.R.Crim.P. 581(D) (emphasis added). Our decision in

Commonwealth           v.   Whiting,     767   A.2d   1083   (Pa.Super.   2001),   is

instructive here. In Whiting, the trial court granted the defendant’s motion

to suppress statements as well as physical evidence found in the defendant’s

home and vehicle. 767 A.2d at 1086. However, the defendant did not raise

in his suppression motion any issues regarding the physical evidence found

in the vehicle, and the defendant did not amend his motion to include this

issue. Id. We concluded that the trial court abused its discretion:
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       6
         In response, Banks argues that the Commonwealth waived its waiver
argument by failing to raise it before the trial court. Banks’ Br. at 7-8 (citing
Pa.R.A.P. 302). We disagree. The Commonwealth has the right to “appeal
from an interlocutory order in a criminal action ‘where the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution.’” Commonwealth v. Andre, 17 A.3d 951, 956
(Pa.Super. 2011) (quoting Pa.R.A.P. 311(d)). “Our Supreme Court has
consistently held that the rule applies to pretrial rulings that result in the
suppression . . . of Commonwealth evidence.” Id.


                                           -7-
J-A11021-17


           Without raising this issue in any form of objection or
           motion, Whiting effectively waived his challenge to the
           search of the car. We have been unable to find any
           evidence of an oral motion to amend Whiting’s pre-trial
           suppression order, nor do the docket sheets refer to such a
           filing.

              Accordingly, it was improper, and therefore an abuse of
           discretion for the trial court to voluntarily raise this issue
           and rule upon it in Whiting’s favor where he never raised
           the issue in any suppression motion, let alone with
           specificity and particularity. Moreover, it was improper for
           the reason that the court never took any testimony or
           evidence at the suppression hearing on this issue and,
           therefore, could not make an informed decision under
           Pa.R.Crim.[P.] 323(i).[7] Finally, the Commonwealth
           was not able to fulfill its burden of presenting
           evidence on the issue and establishing that such
           challenged evidence was not obtained in violation of
           the defendant’s rights.           In fact, the transcribed
           testimony of the suppression hearing only touches upon
           the consent to search Whiting’s car.

Id. at 1087-88 (citations and footnote omitted) (emphasis added).

       Here, Banks did not argue that he was illegally seized in his motion to

suppress; he argued only that police lacked reasonable suspicion to search

the residence.     Banks also did not amend his motion to raise the seizure

issue, either orally or in writing.8 Because Banks failed to argue that he was
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       7
       Rule 323 was amended on March 1, 2000 (effective April 1, 2001)
and renumbered Rule 581; no substantive changes have been made to
paragraph (i).
       8
        At the hearing, it appears the trial court attempted to determine
whether Banks was arguing that the encounter on the porch was a search or
a seizure, but stopped short of asking counsel about any investigative
detention. N.T., 4/29/16 at 10-13. Nevertheless, despite the trial court’s
suggestive questions, Banks neither asserted this issue in his motion nor
moved to amend his motion to include the issue.          As a result, the
(Footnote Continued Next Page)

                                           -8-
J-A11021-17



illegally seized, the Commonwealth had no opportunity to respond to that

argument at the hearing.9 See Whiting, 767 A.2d at 1088. Accordingly,

we conclude that the trial court abused its discretion in suppressing the

physical evidence found in Banks’ residence on grounds not asserted in

Banks’ motion.10

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




                       _______________________
(Footnote Continued)

Commonwealth did not, and had no need to, present evidence or argument
directed to the question whether Banks’ conversation with the agents on the
porch rose to the level of an investigative detention.
      9
        At oral argument before this Court, the Commonwealth stated that
had it been on notice that Banks was claiming he had been unlawfully
seized, it would have presented testimony and argument directed to that
issue.
      10
        Because the trial court did not grant relief based on Banks’
reasonable suspicion argument, we need not address that issue.


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