J-A03028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MERCEDES MANJARREZ TORRES

                            Appellee                  No. 1255 MDA 2014


                  Appeal from the Order Entered June 25, 2014
                  In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0006844-2013


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 25, 2015

        The Commonwealth appeals from the June 25, 2014 order entered in

the Court of Common Pleas of York County, granting the pre-trial

suppression motion filed by Appellee, Mercedes Manjarrez-Torres (Torres).

For the reasons that follow, we reverse and remand.

        Based on a criminal complaint dated July 30, 2013, Torres was

arrested and charged with two counts of delivery of cocaine and one count of

conspiracy to possess cocaine with intent to deliver.1 Torres filed a motion

to suppress evidence, contending an agent of the Attorney General’s
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903 (35 P.S. § 780-
113(a)(30)), respectively. The date of the first alleged delivery was January
27, 2012. The second delivery allegedly occurred on September 21, 2012.
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Narcotics Division enlisted a police officer, Corporal David Ogle, to deceive

Torres into providing personal identifying information. Torres asserted that

the ruse employed by the officer escalated his exchanges with Torres to the

level of an investigative detention in violation of Torres’ constitutional right

of privacy.   He further claimed the officer’s use of deceit to obtain his

identity violated his rights against self-incrimination.

      Following an April 29, 2104 hearing, the suppression court issued the

following findings of fact:

      This [c]ourt finds the testimony of the officers who testified to be
      credible. Pursuant to that determination, the court makes the
      following factual findings:

      1. On March 29, 2013 at approximately 10:30 a.m., Narcotics
         Officer Mike Carlson, Agent Castaneda and Officer David Ogle
         met and a plan was developed to make contact with the
         registered owner of the white Ford F-150 pickup truck in
         order to reveal the actual driver [of] that vehicle who [had]
         accompanied Jose Solorzano on several occasions to deliver
         cocaine to Luis Ocampo. On one occasion, the person in
         question actually delivered an amount of cocaine to Mr.
         Ocampo who in turn delivered [it] to Agent Castaneda. On
         the same date at approximately 11:00 a.m., Agent Carlson
         and Officer Ogle attempted to make contact with a resident at
         16 Carly Drive, New Oxford, Pennsylvania which produced
         negative results and the officers departed the area.

      2. At approximately 12:30 p.m., Agent Castaneda testified that
         he received a phone call from Officer Ogle advising that the
         white pickup truck was parked at 16 Carly Drive. A “false”
         story was developed and a plan to approach the driver of the
         vehicle. Agent Castaneda wanted Officer Ogle to come up
         with a cover story because the matter was still before a grand
         jury and it was important for [Torres] not to know he was
         under investigation. Officer Ogle knocked on the house door
         and [Torres] answered and when asked who was the owner of
         the white pick-up truck, [Torres] indicated it was his vehicle.

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        [Torres] stepped outside and was told that someone in the
        same type of vehicle was involved in a drive off without
        paying for gas. Officer Ogle asked for [i]dentification which
        [Torres] provided and also if [Torres] would consent to having
        his picture taken, which he did.

     3. Officer Ogle also asked [Torres] if he lived at the residence
        and [Torres] stated that he could also be found at 216 Penn
        Street, Hanover[,] Pennsylvania. [Torres] also provided the
        Officer with his phone number.

     4. Agent Castaneda testified that he had been purchasing
        cocaine from . . . an individual driving an F-150 truck and the
        agents had been tracking Mr. Ocampo by a pen register on
        his phone.     On September 21, 2012, Agent Castaneda
        arranged to buy more narcotics from Ocampo. Ocampo was
        followed to a Rutters [gas station] at Route 616 and Market
        Street and the witness observed a white [F-150] truck
        meeting with Ocampo at that location. [Torres] was at the
        scene. Based on these events, Agent Castaneda believed the
        driver of the [F-150] was supplying the cocaine to Ocampo.
        The agents ran the registration and [the registered owner]
        was not [Torres].

     5. Agent Castaneda indicated that they did not want to do a
        traffic stop and arrest [Torres] because they did not want
        [Torres] to be aware of the ongoing investigation.

     6. Following receipt of the information, the agents conducted a
        trash pull at the residence of 216 Penn Street. In searching
        the trash bag, mail was located in the name of [Torres.]

Suppression Court Order, Findings of Fact, 6/25/14, at 3-4.

     The suppression court rejected the Commonwealth’s assertion that the

interactions between Corporal Ogle and Torres constituted mere encounters,

finding instead that the conduct of the officer amounted to “a seizure of the

person[,]” noting:




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       Corporal Ogle arrived at a specific private residence, knocked on
       the door and while in full uniform with his sidearm visible[2],
       requested to speak to the operator of the [w]hite Ford [F-150].
       He stated that he was investigating a theft of gasoline that had
       occurred by use of a similar vehicle. After [Torres] advised it
       was not his truck used in the offense, [Torres], upon request,
       provided his identification and later, upon request, allowed his
       photograph to be taken.

Suppression Court Order, Legal Findings, 6/25/14, at 5.

       The suppression court next considered whether reasonable suspicion

existed to support an investigative detention and concluded it did not, in

light of the lack of any testimony indicating there was criminal activity afoot.

Therefore, the court concluded, the investigative detention violated Torres’

rights under the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution. Id. at 4-6. The court

further determined Torres’ rights against self-incrimination under the Fifth

Amendment of the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution were violated because Torres was “compelled to

provide his identity in order to comply with a police investigation of a non-

existent crime.” Id. at 6. Because the “consent to search given under false



____________________________________________


2
  Although not mentioned in the suppression court’s findings of fact, we
acknowledge Corporal Ogle was in full uniform when he knocked on the door
on Carly Drive. Notes of Testimony (N.T.) Suppression Hearing, 4/29/14, at
7. However, there was no mention during the suppression hearing of
Corporal Ogle’s firearm or whether it was visible, as the suppression court
suggests in its legal findings.



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pretenses [was] not truly voluntary,” id. at 6-7, the court granted Torres’

motion to suppress. Id. at 7.

       The Commonwealth filed a timely appeal from the June 25, 2014

order, certifying in its notice of appeal that the suppression order would

terminate or substantially handicap its prosecution. See Pa.R.A.P. 311(d).

The Commonwealth presents four issues for this Court’s consideration:

       A. Does a casual conversation outside a residence constitute a
          mere encounter?

       B. Did Torres lawfully consent to have his photograph taken?

       C. Does a reasonable expectation of privacy exist in one’s trash
          abandoned outside their property?

       D. Does a person have a reasonable expectation of privacy in his
          identity, address or his photograph taken in public?

Commonwealth Brief at 4.3

       As this Court has recognized, when reviewing the grant of a

suppression motion, we apply the following scope and standard of review:

       In reviewing the ruling of a suppression court, our task is to
       determine whether the factual findings are supported by the
       record. If so, we are bound by those findings. Where, as here,
       it is the Commonwealth who is appealing the decision of the
____________________________________________


3
   In its 1925(b) statement of errors complained of on appeal, the
Commonwealth raised six issues, including the four presented to this Court
on appeal. In the trial court’s Rule 1925(a) opinion, which was authored by
a different judge from the one who issued the order granting suppression,
the court dismissed the Commonwealth’s alleged errors, largely deferring to
the reasoning set forth in the suppression court’s order as the basis for
rejecting the Commonwealth’s allegations of error.       See Rule 1925(a)
Opinion, 9/22/14.



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       suppression court, we must consider only the evidence of the
       defendant’s witnesses and so much of the evidence for the
       prosecution as read in the context of the record as a whole
       remains uncontradicted.

       Moreover, if the evidence supports the factual findings of the
       suppression court, this Court will reverse only if there is an error
       in the legal conclusions drawn from those findings.

Commonwealth v. Burgos, 64 A.3d 641, 647 (Pa. Super. 2013) (quoting

Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010)).

       Again, this Court is bound by the findings of the suppression court that

are supported by the record.           Because this is an appeal by the

Commonwealth, we must consider only the evidence of Torres’ witnesses

and the evidence of the Commonwealth that remains uncontradicted in the

context of the record. Id.

       Here, Torres did not present any witnesses at the suppression hearing.

The only witnesses who testified were Corporal Ogle and Agent Castaneda,

both of whom testified for the Commonwealth.          Absent any witnesses for

Torres, this Court must determine whether the suppression court’s factual

findings are supported by the evidence of the Commonwealth that remains

uncontradicted in the context of the record.

       As the trial court recognized in its Rule 1925(a) opinion, the

Commonwealth complained of a factual misstatement by the suppression

court with respect to Torres answering the door when Corporal Ogle knocked

on the door at the Carly Drive residence. Rule 1925(a) Opinion, 9/22/14, at

3-4.    “[A]ccording to Corporal Ogle’s testimony during the suppression

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hearing, another individual initially answered the door and [Torres] came to

the door shortly after. Id. at 3 (citing N.T. Suppression Hearing, 4/29/14, at

7-8).    The trial court determined that “this factual error is immaterial and

has no bearing on the accuracy of the thorough legal analysis done by the

suppression court. Therefore, the [c]ourt finds that the [Commonwealth’s]

first argument [concerning a factual finding not supported by the record] is

without merit.” Id. at 4.

        With the exception of the suppression court’s misstatement concerning

who initially answered the door when Corporal Ogle knocked, we find the

suppression court’s factual findings are supported by the record. Therefore,

we are bound by them and will reverse the suppression court’s order only if

there is error in the legal conclusions drawn from its findings. Burgos, 64

A.3d at 647.

        In its first issue, the Commonwealth asserts the suppression court

erred in its legal conclusion that the interaction between Corporal Ogle and

Torres constituted an investigative detention rather than a mere encounter

and, as a result, erred in suppressing statements made to Corporal Ogle by

Torres to Ogle during the interactions based on Fourth Amendment grounds.

We agree with the Commonwealth’s contention.4

____________________________________________


4
  In its brief, the Commonwealth attempts to bifurcate the exchanges
between Corporal Ogle and Torres into what can be characterized as “pre-
ruse” and “post-ruse,” suggesting the statement by Torres that he owned
(Footnote Continued Next Page)


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      In Commonwealth v. Boswell, 721 A.2d 336 (Pa. 1998), our

Supreme Court explained:

      Interaction between police and citizens may be characterized as
      a “mere encounter,” an “investigative detention,” or a “custodial
      detention.” Police may engage in a mere encounter absent any
      suspicion of criminal activity, and the citizen is not required to
      stop or to respond. Commonwealth v. Vasquez, 703 A.2d 25,
      30 (Pa. Super. 1997). If the police action becomes too intrusive,
      a mere encounter may escalate into an investigatory stop or a
      seizure. Commonwealth v. Jackson, 428 Pa. Super. 246,
      249, 630 A.2d 1231, 1233 (1993). If the interaction rises to the
      level of an investigative detention, the police must possess
      reasonable suspicion that criminal activity is afoot, and the
      citizen is subjected to a stop and a period of detention. Id.
      Probable cause must support a custodial detention or arrest. Id.

      To decide whether a seizure has occurred, we apply the following
      objective test: “a court must consider all the circumstances
      surrounding the encounter to determine whether the police
      conduct would have communicated to a reasonable person that
      the person was not free to decline the officers’ requests or
      otherwise terminate the encounter.” [Florida v. Bostick, 501
      U.S. 429, 439 (1991)]. In applying this test, it is necessary to
      examine the nature of the encounter.        Commonwealth v.
      Lewis, 535 Pa. 501, 508, 636 A.2d 619, 623 (1994).
      Circumstances to consider include, but are not limited to, the
      following: 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. Terry v.
      Ohio, [392 U.S. 1 (1968)], supra; [Interest of Jermaine, 582
      A.2d 1058, 1060–61 (Pa. Super. 1990)]. See also United
      States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64
                       _______________________
(Footnote Continued)

the truck was offered before the ruse involving the gas station drive-off was
mentioned. We reject the proposed bifurcation, recognizing the ruse is what
brought Corporal Ogle to the door in the first place. However, in light of our
conclusion that the exchanges were mere encounters, the issue of
bifurcation loses any import it might otherwise have had.



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     L.Ed.2d 497 (1980). “[O]therwise inoffensive contact between a
     member of the public and the police cannot, as a matter of law,
     amount to a seizure of that person.” Mendenhall, [446 U.S.] at
     555, 100 S.Ct. 1870.

Id. at 340.

     The United States Supreme Court addressed Fourth Amendment

protections in Florida v. Jardines, 133 S.Ct. 1409 (U.S. 2013), explaining:

     The Fourth Amendment “indicates with some precision the places
     and things encompassed by its protections”: persons, houses,
     papers, and effects. Oliver v. United States, 466 U.S. 170,
     176, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The Fourth
     Amendment does not, therefore, prevent all investigations
     conducted on private property . . . .

     But when it comes to the Fourth Amendment, the home is first
     among equals. At the Amendment’s “very core” stands “the
     right of a man to retreat into his own home and there be free
     from unreasonable governmental intrusion.”           Silverman v.
     United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734
     (1961). This right would be of little practical value if the State’s
     agents could stand in a home’s porch or side garden and trawl
     for evidence with impunity; the right to retreat would be
     significantly diminished if the police could enter a man’s property
     to observe his repose from just outside the front window.

     We therefore regard the area “immediately surrounding and
     associated with the home”—what our cases call the curtilage—as
     “part of the home itself for Fourth Amendment purposes.”
     Oliver, supra, at 180, 104 S.Ct. 1735. That principle has
     ancient and durable roots. . . . This area around the home is
     “intimately linked to the home, both physically and
     psychologically,” and is where “privacy expectations are most
     heightened.” California v. Ciraolo, 476 U.S. 207, 213, 106
     S.Ct. 1809, 90 L.Ed.2d 210 (1986).

Id. at 1414-15 (some citations omitted).

     The exchanges between Corporal Ogle and Torres took place on the

driveway, just outside the side door of the residence at 16 Carly Drive. As

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such, the exchanges took place in the curtilage of the residence, a part of

the home for Fourth Amendment purposes. See Oliver v. United States,

466 U.S. at 180. Therefore, as instructed by Jardines, we must consider

whether Corporal Ogle’s investigation was accomplished through “an

unlicensed physical intrusion.” Id. at 1415.

     Unlike the officers in Jardines who entered onto the porch of Jardines’

residence with a drug-sniffing dog, Corporal Ogle simply walked up to the

door at 16 Carly Drive, knocked on the door, and asked the individual who

answered if the white F-150 belonged to him.       The individual responded

“no,” and indicated Torres was the owner.      At that point, Torres stepped

forward, and apparently stepped outside onto the driveway, and said the F-

150 belonged to him.

     In Jardines, the United States Supreme Court discussed license to

enter upon someone’s property, noting:

     “A license may be implied from the habits of the country,”
     notwithstanding the ‘strict rule of the English common law as to
     entry upon a close.’ McKee v. Gratz, 260 U.S. 127, 136, 43
     S.Ct. 16, 67 L.Ed. 167 (1922) (Holmes, J.).             We have
     accordingly recognized that the knocker on the front door is
     treated as an invitation or license to attempt an entry, justifying
     ingress to the home by solicitors, hawkers and peddlers of all
     kinds. This implicit license typically permits the visitor to
     approach the home by the front path, knock promptly, wait
     briefly to be received, and then (absent invitation to linger
     longer) leave. Complying with the terms of that traditional
     invitation does not require fine-grained legal knowledge; it is
     generally managed without incident by the Nation’s Girl Scouts
     and trick-or-treaters. Thus, a police officer not armed with a
     warrant may approach a home and knock, precisely because that
     is no more than any private citizen might do.

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Id. at 1415-16 (some quotations and citations omitted).             See also

Commonwealth v. Gibson, 638 A.2d 203, 207 (Pa. 1994) (“the police

have the power to knock on the doors of the citizens of this Commonwealth

for investigatory purposes without probable cause”).

      Based on the testimony of Corporal Ogle, testimony the suppression

court found credible, see Suppression Court Order, 6/25/14, at 3, we reject

the suppression court’s legal conclusion that “a seizure of [Torres’] person

occurred.”   Id. at 5.   As Corporal Ogle explained, Torres came out of the

house after indicating the F-150 was his vehicle and they “were just talking.”

N.T. Suppression Hearing, 4/29/14, at 9.        When Corporal Ogle advised

Torres that a vehicle fitting the description of his F-150 had been involved in

a drive-off at a nearby gas station, Torres replied that he always used a

credit card so it could not have been his vehicle. Corporal Ogle asked for

identification and Torres produced his driver’s license from his wallet in the

course of their “casual conversation” that lasted “[j]ust a couple minutes.”

Id. at 9-10, 19.    Corporal Ogle left the Carly Drive residence but later

returned. He knocked on the door and this time Torres answered and again

came out of the house onto the driveway. Corporal Ogle asked if he could

get a photograph of Torres, explaining the gas station had a surveillance

video and that if the photo did not match the video he would not be

contacted. Id. at 9-10. Torres agreed. He also offered a second address of




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216 Penn Street and gave a phone number. Id. at 10-11. Corporal Ogle did

not have any subsequent contact with Torres. Id. at 12.

       Even accepting the suppression court’s Findings of Fact Numbers 2 and

3, supra—relating to the interaction between Corporal Ogle and Torres—

when    the   circumstances   surrounding     the   exchanges   between   those

individuals are considered in the context of those identified in Boswell, e.g.,

the number of officers present, whether the officer informed Torres he was

suspected of criminal activity, the officer’s demeanor and tone of voice, the

location and timing of the interaction, and the questions asked, it is clear the

contact between Corporal Ogle and Torres was inoffensive and did not

amount to a seizure of Torres but rather was a mere encounter.              The

suppression court’s determination to the contrary constitutes legal error.

“As the United States Supreme Court stated in [Bostick, 501 U.S. at 439],

‘The Fourth Amendment proscribes unreasonable searches and seizures; it

does not proscribe voluntary cooperation.’” Commonwealth v. Gonzales,

979 A.2d 879, 887 (Pa. Super. 2009).          The suppression court erred by

suppressing the statements provided by Torres to Corporal Ogle based on

the Fourth Amendment.

       We note that our conclusion is not altered by the fact the encounter

with Torres was undertaken as part of a “ruse.”         In Commonwealth v.

Haynes, 577 A.2d 564 (Pa. Super. 1990), this Court examined cases

involving police deceit and announced:


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      There appears to be a common thread running through these
      Supreme Court cases as well as the cases in this Commonwealth
      which may aid in determining when police deception is
      permissible. That common thread is that the deception must not
      pertain to the consent itself, in some sense it must be collateral
      to the content of the permission voluntarily granted. Thus, the
      accused must know what is being consented to, and if the police
      exceed the scope of that consent, then they have passed their
      limits of permissible deception. This is consistent with the line of
      cases which have held that if the accused does not understand
      what it was that was consented to, then the consent is invalid.

Id. at 571-72 (citations omitted). Here, in response to information that a

vehicle matching the description of his F-150 truck may have been involved

in a gas station drive-off, Torres consented to providing identification and

understood that identification was what Corporal Ogle requested.             His

consent was valid.   Therefore, the “deception” employed by Corporal Ogle

was permissible in the context of the encounter that took place.

      In its second issue, the Commonwealth argues the suppression court

erred by suppressing the photograph of Torres taken by Corporal Ogle

because Torres lawfully consented to having his photograph taken. As the

Commonwealth asserts, Corporal Ogle did not coerce or compel Torres to

have his picture taken. In its Rule 1925(a) opinion, the trial court contends

“[t]he legal findings in the suppressions court’s [o]rder granting [Torres’]

motion to suppress thoroughly cover the grounds for invalidating this

argument.”    Rule 1925(a) Opinion, 9/22/14 at 5.      Consequently, the trial

court deferred to the suppression court’s opinion “and reiterates its logic.”

Id.


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      The only mention of the photograph in the suppression court’s findings

of fact appears in Finding of Fact Number 2, in which the suppression court

determined “Officer Ogle asked for Identification which [Torres] provided

and also if [Torres] would consent to having his picture taken, which he did.”

Suppression Court Order, 6/25/14, at 3. In its legal findings, in the course

of concluding that a seizure of Torres’ person occurred, the suppression

court explained:

      Corporal Ogle arrived at a specific private residence, knocked on
      the door and while in full uniform with his sidearm visible,
      requested to speak to the operator of the White Ford [F-150].
      He stated that he was investigating a theft of gasoline that had
      occurred by use of a similar vehicle. After [Torres] advised it
      was not his truck used in the offense, [Torres], upon request,
      provided his identification and later, upon request, allowed his
      photograph to be taken.

Id. at 5. The suppression court proceeded to consider whether, in light of

the fact a seizure occurred, reasonable suspicion existed to support Corporal

Ogle’s investigation.      There was no further discussion of the photograph.

Therefore, it is not clear what findings of the suppression court were deemed

by the trial court to “thoroughly cover the grounds for invalidating this

argument.” Rule 1925(a) Opinion, 9/22/14, at 5.

      The testimony of Corporal Ogle, which the suppression court found

credible, supports the Commonwealth’s position that Torres consented to

being photographed.         For that reason, and because we have already

determined    that   the    exchanges    between   Corporal   Ogle   and   Torres

constituted a mere encounter, the “fruit of the poisonous tree” claim by

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Torres in his suppression motion does not find support in the record. The

suppression court erred by suppressing the photograph of Torres taken by

Corporal Ogle.

      In its third issue, the Commonwealth argues the suppression court

committed error by suppressing evidence found in the trash at Torres’ 216

Penn Street address. We agree. In California v. Greenwood, 486 U.S. 35

(1988), the United States Supreme Court concluded that the Fourth

Amendment does not “prohibit[] the warrantless search and seizure of

garbage left for collection outside the curtilage of a home.”      Id. at 37.

Likewise, this Court voiced its preference for “the view adopted by every

United States Court of Appeals to consider the issue, that placing trash for

collection is an act of abandonment which terminates any fourth amendment

protection.”   Commonwealth v. Minton, 432 A.2d 212, 217 (Pa. Super.

1981) (footnote omitted).

      Torres did not have any legitimate expectation of privacy in the mail

and other items recovered from a trash bag left in an alley at the rear of the

Penn Street residence.      For that reason and because we have rejected

Torres’ “fruit of the poisonous tree” claim, we conclude the suppression court

erred in suppressing items recovered in the trash pull in the alley located at

the rear of 216 Penn Street.




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      In its fourth issue, the Commonwealth argues that the suppression

court erred in suppressing information relating to Torres’ identity, his

address and his photograph taken in public. We agree.

      In Commonwealth v. Campbell, 862 A.2d 659 (Pa. Super. 2004),

this Court stated that “[a] person’s name and address, by themselves, do

not constitute information about which a person can have a reasonable

expectation of privacy that society is willing to recognize.”        Id. at 664

(quoting Commonwealth v. Duncan, 817 A.2d 455, 458-59 (Pa. 2003)).

Further, “interrogation relating to one’s identity or a request for identification

by the police does not, by itself, constitute a Fourth Amendment seizure.”

Id. (citations omitted).

      In Campbell, this Court determined that questioning an individual

about identity does not constitute a Fourth Amendment seizure but left for

another day the issue of a passenger’s right not to respond and the

implication of Fifth Amendment claims, recognizing they were not before the

Court. Id. at 665. Torres raised the Fifth Amendment in his suppression

motion and the suppression court agreed that Torres’ statement revealing

his identity was obtained in violation of his Fifth Amendment rights.

Suppression Court Order, 6/25/14, at 6.

      Citing Commonwealth v. Durr, 32 A.3d 781 (Pa. Super. 2011), the

suppression court stated that the Fifth Amendment and Article I, Section 9 of

the Pennsylvania Constitution “privilege[d] him not to answer official


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questions put to him informally where the answers might incriminate him in

future criminal proceedings.”     Suppression Court Order, 6/25/14, at 6.

However, in Durr, this Court concluded that “since the request for

identification . . . transpired during a mere encounter, there was no

compulsion to respond.” Durr, 32 A.3d at 786.

      Likewise, the exchanges between Corporal Ogle and Torres in this case

constituted a mere encounter. Corporal Ogle did not threaten Torres or act

in any manner that suggested Torres had been seized and was compelled to

comply.   Therefore, as in Durr, for Fifth Amendment purposes Torres was

not compelled to reveal his identity.

      Further, with respect to the photograph, Torres elected to answer the

door and exit the Carly Drive residence when Corporal Ogle knocked the

second time. As the Commonwealth contends, Torres was then in public and

Corporal Ogle was within his rights to photograph him in the driveway.

Moreover, Torres consented to having his picture taken.     Torres had no

expectation of privacy in the photograph.

      Torres had no expectation of privacy in his name, his address or his

photograph.   Therefore, the suppression court erred in suppressing those

items.

      We conclude the suppression court failed to apply the law properly to

the facts of this case based on the evidence of the prosecution that, when

read in the context of the entire record, remained uncontradicted.   This is


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not to suggest that we have in any way disregarded the suppression court’s

findings of fact, to the extent they are supported by the record. Instead, it

is a matter of this Court also considering uncontradicted prosecution

evidence not included in the suppression court’s findings of fact, evidence

necessarily considered for proper application of law to the facts.

      Order reversed.     Case remanded for further proceedings consistent

with this Memorandum. Jurisdiction relinquished.

      Judge Mundy joins the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2015




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