J-S66043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: K.R.T., a Minor,                     :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                                            :
                                            :
                                            :
APPEAL OF: K.R.T.,                          :
                                            :
                    Appellant               :            No. 512 MDA 2014

        Appeal from the Dispositional Order entered on January 8, 2014
                 in the Court of Common Pleas of York County,
                 Juvenile Division, No. CP-67-JV-0000502-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 26, 2014

        K.R.T. (d.o.b. 1/2/96) appeals from the Dispositional Order entered

after he was adjudicated delinquent of possession with intent to deliver a

controlled substance (“PWID”).1 We affirm.

        The juvenile court previously set forth the facts underlying this appeal,

in its Order entered on November 8, 2013, as follows:

              Officer [Jason] Dibble [of the York Area Regional Police
        Department] testified that on May 5th, 2013, he was in uniform
        and on duty, and at around 4:30 [p.m.,] when he came onto
        duty, he was informed that there was a missing child who had a
        302 warrant.[2] As a result of that information, [Officer Dibble]
        went to [K.R.T.’s] residence … to speak with his mother. She

1
    See 35 Pa.C.S.A. § 780-113(a)(30).
2
  Pursuant to section 7302 of the Mental Health Procedures Act, 50 P.S.
§ 7302, a “302” involuntary commitment warrant may be issued “[u]pon
written application by a physician or other responsible party setting forth
facts constituting reasonable grounds to believe a person is severely
mentally disabled and in need of immediate treatment[.]” Id. § 7302(a)(1).
In the instant case, K.R.T.’s mother submitted the application for a 302
warrant.
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      had given [Officer Dibble] a picture or [K.R.T.] and [] provided
      him with some locations where [K.R.T.] may have been
      [located].  It was determined that [K.R.T.] may be at an
      apartment complex on South Main Street in Red Lion Borough.

             [Officer Dibble] went to the location, and [K.R.T.’s] mother
      was [] at the location as well. While [Officer Dibble] was
      investigating, he heard [K.R.T.’s] mother yell, “K[.], stop.” As a
      result, [Officer Dibble] turned and saw [K.R.T.] running down
      the street. A very short foot pursuit commenced. [K.R.T.] []
      threw his backpack and sat down on the grassy area next to the
      sidewalk where the [backpack] was located. [Officer Dibble]
      testified that the backpack was no more than ten feet from
      [K.R.T.’s] location. [Officer Dibble] stated that [immediately
      after K.R.T. had thrown the backpack and sat down on the grass,
      the Officer] asked [K.R.T.] why he threw the backpack, at which
      time [K.R.T.] stated that he was selling marijuana and that
      marijuana was in the backpack. [Officer Dibble then placed
      K.R.T. in handcuffs.]

             [Officer Dibble] testified that he searched the backpack
      incident to arrest. He stated [that] inside the backpack were
      wet clothes, a cell phone, a plastic zip lock bag with ten
      individual packages of marijuana, and rolled up money that was
      located [] with the marijuana. … [Officer Dibble] also indicated
      [that] he was concerned for his safety. He has been involved in
      the military and [served] in Afghanistan[,] and is well aware of
      the fact that backpacks have been used to detonate devices and
      obviously had some concerns.

Juvenile Court Order, 11/8/13, at 3-4 (footnote added).       Additionally, the

juvenile court stated that another officer had testified that the 28 grams of

marijuana that was found in K.R.T.’s backpack was possessed with intent to

deliver. See id. at 5.3

      A few days prior to the November 8, 2013 adjudicatory hearing, K.R.T.

filed a Motion to Suppress the evidence of the marijuana and the inculpatory


3
  K.R.T. does not dispute that he possessed the marijuana with intent to sell
it.

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statements he made to Officer Dibble concerning the marijuana.             K.R.T.

averred that the warrantless search was unconstitutional and that no

exceptions to the warrant requirement applied. At the adjudicatory hearing,

the juvenile court denied K.R.T.’s Motion to Suppress, finding that (1) the

search fell under two exceptions to the warrant requirement; and (2)

K.R.T.’s     inculpatory   statements   did   not   occur   during   a   custodial

interrogation, and, therefore, there was no violation of his Miranda4 rights.

See Juvenile Court Order, 11/8/13, at 6-7. At the close of the adjudicatory

hearing, the juvenile court determined that the evidence established beyond

a reasonable doubt that K.R.T. had committed PWID, but deferred

adjudication and disposition pending a case assessment and psychological

evaluation of K.R.T.

        At a subsequent adjudicatory hearing on January 8, 2014, the juvenile

court adjudicated K.R.T. delinquent of PWID, and imposed probation. K.R.T.

timely filed a post-adjudication Motion, challenging, inter alia, the court’s

denial of the Motion to Suppress.       Following a hearing, the juvenile court

denied the post-adjudication Motion, after which K.R.T. timely filed a Notice

of Appeal.

        On appeal, K.R.T. presents the following issues for our review:

        1. Whether the [juvenile] court erred in denying [K.R.T.’s]
           Suppression Motion related to the search of the bag in
           that:

             a. The search was not done incident to arrest;

4
    Miranda v. Arizona, 384 U.S. 436 (1966).

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          b. There were no exigent circumstances that required
             the bag to be searched; and

          c. The bag was not abandoned by [K.R.T.?]

      2. Whether the [juvenile] court erred in denying [K.R.T.’s]
         Suppression Motion related to the statements obtained
         from [K.R.T.], as [] [O]fficer [Dibble] did not give [K.R.T.]
         Miranda [warnings] and quiet time before his custodial
         interrogation[?]

Brief for Appellant at 4 (capitalization omitted).

      Our standard of review concerning a challenge to the denial of a

suppression motion is as follows:

            An appellate court 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 suppression court, the appellate court is bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. [T]he appellate court is not bound by the
      suppression court’s conclusions of law.

In re V.C., 66 A.3d 341, 350-51 (Pa. Super. 2013) (citation omitted); see

also In the Interest of L.J., 79 A.3d 1073, 1080 n.6 (Pa. 2013) (stating

that “our standard of review is highly deferential with respect to the

suppression court’s factual findings and credibility determinations.”).

      K.R.T. first argues that the juvenile court erred in denying his Motion

to Suppress the marijuana found in his backpack because Officer Dibble did

not have a warrant to search the backpack,5 and no exception to the warrant

requirement applies. See Brief for Appellant at 10-14. K.R.T. contends that

5
 K.R.T. does not dispute that Officer Dibble had a valid 302 warrant to take
K.R.T. into custody for a medical evaluation or that the arrest was valid.

                                    -4-
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(1) the search was not conducted incident to arrest; (2) there were no

exigent circumstances presented in this case that required a search of the

backpack; and (3) the backpack was not abandoned by K.R.T. Id. at 10-14.

      “As a general rule, for a search to be reasonable under the Fourth

Amendment or Article I, Section 8, police must obtain a warrant, supported

by probable cause and issued by an independent judicial officer, prior to

conducting the search.” Commonwealth v. Gary, 91 A.3d 102, 107 (Pa.

2014).      However, “[n]ot every search must be conducted pursuant to a

warrant, for the Fourth Amendment bars only unreasonable searches and

seizures.     While a search is generally not reasonable unless executed

pursuant to a warrant, the Supreme Court of the United States and [the

Pennsylvania Supreme] Court have recognized exceptions to the warrant

requirement.” Commonwealth v. Taylor/Mahone, 771 A.2d 1261, 1266

(Pa. 2001) (citation omitted).    One well-recognized exception is a search

conducted incident to a lawful arrest.    See Commonwealth v. Stem, 96

A.3d 407, 410 (Pa. Super. 2014). Additionally, a warrant is not required to

search personal property that an individual has voluntarily abandoned. See

Commonwealth v. Sodomsky, 939 A.2d 363, 366-67 (Pa. Super. 2007)

(stating, inter alia, that “when an individual evidences an intent to relinquish

control over personal property, he or she has abandoned a privacy interest

in property and cannot object to any ensuing search of the item by police.”).

      In the instant case, the juvenile court determined that although Officer

Dibble did not have a warrant to search K.R.T.’s backpack, the search was

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legal because it fell under the search incident to arrest exception to the

warrant requirement, and a warrant was not required because K.R.T. had

voluntarily abandoned the backpack.

      We will first address the search incident to arrest exception, which

“permits an arresting officer without a warrant to search an arrestee’s

person and the area within his immediate control only for personal property

immediately associated with the arrestee.”    Stem, 96 A.3d at 410 (citing,

inter alia, Chimel v. California, 395 U.S. 752, 763 (1969) (holding that

where a search is conducted pursuant to a lawful arrest, “[t]here is ample

justification … for a search of the arrestee’s person and the area ‘within his

immediate control’ – construing that phrase to mean the area from within

which he might gain possession of a weapon or destructible evidence.”)).

This Court has explained that the “search incident to a lawful arrest …

exception[] to the warrant requirement [] does not depend upon whether

there is any indication that the person arrested possesses weapons or

evidence as the fact of a lawful arrest, standing alone, authorizes a search.”

Commonwealth v. Rickabaugh, 706 A.2d 826, 836 (Pa. Super. 1997)

(citations and quotation marks omitted).

      In the instant case, the juvenile court discussed this exception in its

Pa.R.A.P. 1925(a) Opinion as follows:

            As a search incident to arrest, [Officer Dibble] could
      properly search [K.R.T.’s] person and containers within his
      immediate control. A police officer may conduct a search of an
      arrestee’s person and the area within the arrestee’s immediate
      control as a matter of course because of the ever-present risk in

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     an arrest situation that an arrestee may seek to use a weapon.
     United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53
     L.Ed.2d 538 (1977). To facilitate officer safety, a search incident
     to a lawful arrest requires no further justification in order to be
     valid. Commonwealth v. Henry, 358 Pa. Super. 306, 311, 517
     A.2d 559, 564 (1986).

            In the instant matter, [] [O]fficer [Dibble] testified that the
     backpack was no more than ten feet from [K.R.T.] at the time it
     was searched. The Officer also testified that he was concerned
     for his safety based on his military background and his
     familiarity with backpacks having been used to carry explosive
     devices to be detonated remotely.             The [juvenile c]ourt
     recognizes that the backpack lies in a grey area as it relates to
     the area that may be searched. However, the [c]ourt found the
     Officer’s testimony compelling regarding his experiences in the
     military as it relates to backpacks being used as explosive
     devises. Moreover, we now live in a different time when it is
     common to see backpacks being used as weapons, e.g.[, the]
     Boston Marathon [bombing].[6] [K.R.T.], while being chased,
     threw his backpack[,] thereby giving [O]fficer [Dibble] further
     concern regarding the potential contents therein.                 This
     heightened his concerns regarding his safety. Therefore, the
     [juvenile c]ourt found that the backpack[,] which was located
     within ten feet of the Officer[,] posed a potential danger to him
     and others who were at the arrest scene.

Juvenile Court Opinion, 4/10/14, at 2-3 (footnote added); see also N.T.

(adjudicatory hearing), 11/8/13, at 43-44.

     We must defer to the juvenile court’s credibility assessment regarding

Officer Dibble’s testimony at the adjudicatory hearing that he had reason to

be concerned for his and the public’s safety regarding the unknown contents

of K.R.T.’s backpack, based on the Officer’s prior experience with concealed

explosive devices while serving with the military in Afghanistan, and the


6
  The Boston Marathon bombing on April 15, 2013, wherein a bomb
concealed inside a backpack was remotely detonated, occurred less than one
month prior to the incident involved in this case.

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then-recent Boston Marathon bombing. See In the Interest of L.J., supra

(stating that “our standard of review is highly deferential with respect to the

suppression court’s factual findings and credibility determinations.”).

       Moreover,     the   safety       concern   articulated   by   Officer   Dibble

distinguishes the instant matter from the case that K.R.T. relies upon in

support of his argument: Taylor/Mahone, 771 A.2d at 1271-72 (where the

police had arrested the defendant and his codefendant while executing a

search warrant of a convenience store, placed the men in handcuffs, and

then discovered narcotics in two coats located ten feet away from the men,

holding that this evidence was not admissible under the search incident to

arrest exception because “the search of the two coats extended beyond the

area within [the defendants’] ‘immediate control[,]’” and “[t]here is no

indication in the record that the police had any reason to believe that the

men would immediately attempt to secure a weapon or destroy contraband

contained in the coats.”). Unlike the police in Taylor/Mahone, here, Officer

Dibble articulated a specific reason why the backpack was a potential safety

concern, and, as noted above, the juvenile court credited Officer Dibble’s

justification for why he thought the circumstances necessitated a protective

search of the backpack.          Cf. Taylor/Mahone, 771 A.2d at 1271 (stating

that   “[w]hile    the   coats    did   contain   contraband,   we   find   that   the

circumstances in the present case did not necessitate a search of the

coats.”). Accordingly, the juvenile court properly determined that the search

incident to arrest exception was satisfied in this case.

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     Moreover, we agree with the juvenile court’s determination in its

Pa.R.A.P. 1925(a) Opinion that “[a]ssuming that the search of the backpack

was not a valid search incident to arrest, it would then fall within the

parameters of abandoned property.” Juvenile Court Opinion, 4/10/14, at 4.

The juvenile court reasoned as follows:

            It is well settled that no one has standing to complain of a
     search or seizure of property that he has voluntarily abandoned.
     Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d
     668 (1960)[; see also Sodomsky, 939 A.2d at 367 (stating
     that “a legitimate expectation of privacy is absent where an
     owner or possessor meaningfully abdicates his control,
     ownership, or possessory interest in his personal property.”
     (citation and quotation marks omitted)].          Abandonment is
     primarily a question of intent, and intent may be inferred from
     words spoken, acts done, and other objective facts.
     Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216,
     1220 (1976) [(where the police responded to a report that the
     defendant and his two coconspirators were acting suspiciously
     and appeared to be readying to burglarize a store, and the men
     fled upon seeing the police and dropped two briefcases, holding
     that the warrantless search of the briefcases, which contained
     illegal weapons, was lawful because the men had voluntarily
     abandoned the property); s]ee also Commonwealth v.
     Johnson, 431 Pa. Super. 291, 636 A.2d 656 (1994) (finding
     that defendant’s placement of a bag of crack cocaine in a tree on
     public property and standing 10-12 feet away constituted a
     conscious attempt to distance himself from the bag in the event
     of police intervention, and accordingly resulted in the loss of a
     reasonable expectation of privacy in the bag). Police pursuit
     does not of itself render abandonment involuntary. United
     States v. Edwards, 5th Cir. 1971, 441 F.2d 749 (1971).

           Here, [K.R.T.] voluntarily threw the backpack while being
     pursued by [] Officer [Dibble]. By throwing the backpack and
     continuing to flee, albeit for a short period of time, it can
     reasonably be inferred that [K.R.T.] was voluntarily relinquishing
     his control and any privacy interest he had in the backpack.




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Juvenile Court Opinion, 4/10/14, at 4; see also N.T. (adjudicatory hearing),

11/8/13, at 44 (wherein the juvenile court judge found that “[i]t’s clear that

[K.R.T.] intended to relinquish possession [of the backpack] by throwing it

when running from the [O]fficer.”). We determine that the juvenile court’s

findings are supported by the record and the law, and discern no error in the

court’s conclusion that the marijuana seized from K.R.T.’s backpack was

admissible even though Officer Dibble did not have a warrant to search the

backpack.

      In his second issue, K.R.T. argues that the juvenile court erred in

failing to suppress his inculpatory statements because, according to K.R.T.,

he was in custody when Officer Dibble questioned him as to why he threw

the backpack,7 and the Officer never read K.R.T. his Miranda rights. See

Brief for Appellant at 15-17. K.R.T. maintains that Officer Dibble had placed

him in custody at the moment that K.R.T. had stopped for the Officer while

fleeing, after the Officer yelled to K.R.T., “Stop, police.” Id. at 15. K.R.T.

contends that a reasonable person would not have felt free to leave under

these circumstances, and, therefore, the questions that Officer Dibble asked

K.R.T.   occurred   during   a   custodial   interrogation,   requiring   Miranda

warnings. Id. at 16.




7
  K.R.T. also points out that after Officer Dibble placed K.R.T. in handcuffs
and found the marijuana in the backpack, the Officer asked him what he was
doing with the drugs, in response to which K.R.T. admitted he was selling it.
See Brief for Appellant at 16-17; see also N.T., 11/8/13, at 19-20.

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      This Court has stated as follows concerning custodial interrogations of

juveniles:

             To safeguard an uncounseled individual’s Fifth Amendment
      privilege against self-incrimination, suspects subject to custodial
      interrogation by law enforcement officers must be warned that
      they have the right to remain silent, that anything they say may
      be used against them in court, and that they are entitled to the
      presence of an attorney. Juveniles, as well as adults, are
      entitled to be apprised of their constitutional rights pursuant to
      Miranda. If a person is not advised of his Miranda rights prior
      to custodial interrogation by law enforcement officers, evidence
      resulting from such interrogation cannot be used against him. A
      person is deemed to be in custody for Miranda purposes when
      [he] is physically denied of his freedom of action in any
      significant way or is placed in a situation in which he reasonably
      believes that his freedom of action or movement is restricted by
      the interrogation.

In re C.O., 84 A.3d 726, 731-32 (Pa. Super. 2014) (citations and quotation

marks omitted).      “Interrogation is defined as police conduct calculated to,

expected to, or likely to evoke an admission.” Id. at 732 (citation and

brackets omitted).

      In denying K.R.T.’s Motion to Suppress his inculpatory statements, the

juvenile court reasoned at the adjudicatory hearing as follows:

             With respect to the statements made by [K.R.T.], it is clear
      that those statements were not a part of custodial interrogation.
      [O]fficer [Dibble] merely asked [K.R.T.] why he threw the bag in
      question. This was not intensive questioning by the [O]fficer,
      and [K.R.T.] had merely stated that it contained the drugs in
      question.

N.T., 11/8/13, at 44. The juvenile court’s determination is supported by the

record, which reveals that Officer Dibble testified that K.R.T.’s admission

that he had marijuana in his backpack was spontaneous and not specifically



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responsive to the Officer’s question as to why K.R.T. threw the backpack.

Id. at 15, 18. Moreover, Officer Dibble testified that he had asked K.R.T.

why he threw the backpack for safety purposes, not with the intent to elicit

incriminating evidence from K.R.T, and the juvenile court credited the

Officer’s testimony in this regard.   Id. at 18, 23; see also Juvenile Court

Opinion, 4/10/14, at 3. Accordingly, we conclude that K.R.T.’s spontaneous

admission was voluntary, and did not occur during a custodial interrogation.

Therefore, Miranda warnings were not required, and the juvenile court

properly refused to suppress K.R.T.’s inculpatory statements.

      Based upon the foregoing, we conclude that the juvenile court properly

denied K.R.T.’s Motion to Suppress, and we therefore affirm the Dispositional

Order entered following K.R.T.’s adjudication of delinquency for PWID.

      Dispositional Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014




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