J-S09019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYRONE SALTER,

                        Appellant                   No. 1017 WDA 2014


           Appeal from the Judgment of Sentence June 16, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009421-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 05, 2015

      Tyrone Salter appeals from the judgment of sentence of two and one-

half to five years incarceration followed by seven years probation, which was

below the mitigated range of the sentencing guidelines.        Sentence was

imposed after the trial court convicted Appellant of one count of possession

of a controlled substance with intent to deliver and two counts of possession

of a controlled substance. We affirm.

      Appellant’s convictions are premised upon the following evidence

adduced by the Commonwealth at Appellant’s combined suppression hearing

and nonjury trial and accepted as true by the trial court. Sheriff’s Detective

Richard Manning testified as follows.    On March 28, 2012, a team of five

men from one of two Criminal Fugitive Squads of the Allegheny County

Sheriff’s Office executed a bench warrant for Appellant’s co-defendant, Bruce
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Lucas, at 1350 Herman Street, Pittsburgh. Lucas was wanted for violating

his probation on a robbery charge.               The team consisted of Detective

Manning, Detective Richard Venezia, Detective Richard Dwyer, Sergeant

Clark,1 and Detective Ron Stokes.          Detective Stokes covered the rear of the

address, Detectives Manning and Venezia went to the front door, and the

two other detectives stayed in front of the house.

       Normally, a member of the squad would announce that they were from

the sheriff’s office and present to execute a warrant, but, in this case, no

announcement was made. Detective Manning explained that they dispensed

with the warning because three to four cameras were pointed at the house

to detect who was approaching it. In addition, a window to the left of the

front door was opened, and Detective Manning “could smell a strong

pungent odor of marijuana.             It was a fresh marijuana smell, as we

approached the door.”          N.T. Non-Jury Trial Transcript, 10/30/13, at 23.

Finally, Lucas was wanted for violating probation in a felony case so the

sheriffs anticipated that he might attempt to flee.

       Detectives Manning and Venezia knocked loudly and immediately

“heard a lot of movement within the address.” Id. at 21. After they knocked

a second time, a male voice asked, “Who is it.”             Id. at 26.   Detectives

Manning and Venezia responded, “Sheriff’s Office with a warrant.            Answer
____________________________________________


1
  Detective Manning did not provide Sergeant Clark’s first name. N.T. Non-
jury Trial Transcript, 10/30/13, at 18.



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the door.”   Id.   A few seconds later, Detective Manning heard a metallic

sound as if someone “was racking a gun, very close to the front door.” Id.

      At that point, the detectives attempted to kick in the front door, but it

was barricaded. They continued to announce that they were sheriffs with a

warrant and wanted the door to be opened.           The only response was the

sound of “people running around within the residence.” Id. at 27. Detective

Stokes radioed Detective Manning that two males had just jumped from the

back porch of the house and were scrambling down a steep hill in the back

yard that led to Spring Garden Avenue. Detective Manning left his post at

the front of the house and observed the two men fleeing down Spring

Garden Avenue.      Detective Manning articulated that, at that point, he

concluded that the they were engaged in criminal activity.

      Detectives Manning and Venezia entered a vehicle, went to find the

two fleeing men, and “saw them both walking down Spring Garden Avenue.”

Id. at 33.    The two people, Appellant and his other co-defendant Melvin

Crew, matched “the individuals [who Detective Manning] saw going down

the hill in their clothing” as well as a description that had been provided by

Detective Stokes. Id.     Appellant’s clothing was in disarray, grass stained,

and dirty, and he was not wearing shoes.

      When    Detective    Venezia   started   to   approach   him,   Appellant

immediately started to run.     Crew ceased his flight at that point and was

handcuffed by Detective Manning. Another police officer immediately arrived


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at the scene, and Detective Manning joined Detective Venezia in the chase.

As he started to run, Detective Manning heard Detective Venezia yell, “He is

coming back down to you.”     Id. at 38.   Detective Manning then observed

Appellant come towards him and attempt to scale a nearby fence. Detective

Manning grabbed Appellant and handcuffed him.

      Detective Venezia arrived at the scene shortly thereafter with a purple

velvet bag used to package Crown Royal liquor. Detective Venezia testified

that Appellant threw away the bag while the detective was pursuing him.

N.T. Continued Suppression Hearing, 11/25/13, at 9.       The bag contained

96.7 grams of cocaine and 6.65 grams of marijuana.          Appellant was in

possession of $2,928 while Crew had $2,053. Lucas was located inside 1350

Herman Street. There was a stipulation that the Commonwealth would have

presented testimony that the cocaine was possessed with intent to deliver.

      On appeal, Appellant presents the following contention, “Did the trial

court err by failing to suppress evidence obtained following a warrantless

search of a bag discarded by [Appellant] due to the unlawful coercive action

of police, when [Appellant] was arrested without probable cause, and

officers had opportunity to obtain a search warrant?” Appellant’s brief at 3.

      Herein, the suppression court concluded that Appellant abandoned the

bag while the detectives were in the process of attempting to effectuate a

valid investigatory detention supported by reasonable suspicion pursuit to




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Terry v. Ohio, 392 U.S. 1 (1968).       Initially, we outline our standard of

review in this context:

            An appellate court's standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court's factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct.       Because the Commonwealth
      prevailed before the suppression court, we may consider only the
      evidence of the Commonwealth 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 suppression court's factual
      findings are supported by the record, the appellate court is bound
      by those findings and may reverse only if the court's legal
      conclusions are erroneous.         Where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court's legal conclusions are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts. Thus, the
      conclusions of law of the courts below are subject to plenary
      review.

Commonwealth v. Garibay, 2014 WL 6910879, 2 (Pa.Super. 2014)

(citation omitted).

      Appellant’s first position is that the detectives needed to secure a

search warrant before they looked inside the bag to discover its contents.

             As a general principle, the Fourth Amendment requires
      that law officers obtain a warrant issued by a neutral magistrate
      before they intrude into a place of privacy. However, an
      exception to the warrant requirement exists when the property
      seized has been abandoned. In Commonwealth v. Shoatz,
      469 Pa. 545, 366 A.2d 1216 (1976), our Supreme Court
      delineated the test employed to determine whether an
      abandonment has occurred:

                Abandonment is primarily a question of intent,
            and intent may be inferred from words spoken, acts
            done, and other objective facts. All relevant
            circumstances existing at the time of the alleged

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            abandonment should be considered. The issue is not
            abandonment in the strict property-right sense, but
            whether the person prejudiced by the search had
            voluntarily discarded, left behind, or otherwise
            relinquished his interest in the property in question
            so that he could no longer retain a reasonable
            expectation of privacy with regard to it at the time of
            the search.

      Id., 469 Pa. at 553, 366 A.2d at 1220.

Commonwealth v. Clark, 746 A.2d 1128, 1133-34 (Pa.Super. 2000)

(emphasis omitted).    Thus, if Appellant discarded the bag in question, he

relinquished his expectation of privacy in that item and cannot contest the

validity of its search without a warrant.

      Herein, Detective Venezia reported that while he was chasing

Appellant, Appellant threw away the purple velvet Crown Royal bag and

continued to flee. Therefore, he abandoned it. Commonwealth v. Byrd,

987 A.2d 786 (Pa.Super. 2009); Commonwealth v. Riley, 715 A.2d 1131

(Pa.Super. 1998). As Appellant did not retain a privacy interest in the item

that he threw away, he cannot contest the validity of its search without a

warrant.

      Alternatively, Appellant claims that he was forced to abandon the bag

due to unlawful police action when he was arrested without probable cause.

If property is discarded as a result of unconstitutional police conduct, then a

defendant retains the ability to object to its search.    Byrd, supra.     The

record establishes that Appellant discarded the bag while he was being

chased by Detective Venezia and before he was restrained by Detective

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Manning.         Hence, the causative factor in the abandonment was not

Appellant’s detention while was climbing the fence but his pursuit by

Detective Venezia. Id. The suppression court viewed this police interaction

as an attempt at an investigatory detention, and we concur with its

assessment as well as its conclusion that the interaction was supported by

reasonable suspicion.

               Article I, § 8 of the Pennsylvania Constitution and the
        Fourth Amendment to the United States Constitution both
        protect the people from unreasonable searches and seizures.
        Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)
        (citation omitted). Jurisprudence arising under both charters has
        led to the development of three categories of interactions
        between citizens and police. Id. (citations omitted). The first, a
        “mere encounter,” does not require any level of suspicion or
        carry any official compulsion to stop or respond. The second, an
        “investigative detention,” permits the temporary detention of an
        individual if supported by reasonable suspicion. The third is an
        arrest or custodial detention, which must be supported by
        probable cause. Id. (citations omitted).

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014). When we examine

which    level    of   interaction   has   occurred,   we   “conduct   an   objective

examination of the totality of the surrounding circumstances.” Id. (citation

omitted). This test focuses “on whether the suspect has in some way been

restrained by physical force or show of coercive authority.”           Id. (citation

omitted).

        Herein, it is evident that, contrary to his position, Appellant was not in

police custody while he was being chased by Detective Venezia. While his

course of action was being dictated by the police, he had not been arrested.


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Hence, we view the interaction, as did the suppression court, as an attempt

at an investigatory detention.

      We outlined the test utilized to determine whether police had

reasonable    suspicion     to   support   an   investigatory   detention   in

Commonwealth v. Carter, 2014 WL 6756271, 3 (Pa.Super. 2014) (en

banc) (footnote omitted):

          “The Fourth Amendment permits brief investigative stops
      when a law enforcement officer has a particularized and
      objective basis for suspecting the particular person stopped of
      criminal activity.” Navarette v. California, ––– U.S. ––––, –––
      –, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014).              It is
      axiomatic that to establish reasonable suspicion, an officer “must
      be able to articulate something more than an inchoate and
      unparticularized suspicion or hunch.” United States v.
      Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
      Unlike the other amendments pertaining to criminal proceedings,
      the Fourth Amendment is unique as it has standards built into its
      text, i.e., reasonableness and probable cause. See generally
      U.S. Const. amend. IV. However, as the Supreme Court has
      long recognized, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
      L.Ed.2d 889 (1968), is an exception to the textual standard of
      probable cause. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct.
      1319, 75 L.Ed.2d 229 (1983). A suppression court is required to
      “take into account the totality of the circumstances-the whole
      picture.” Navarette, supra. When conducting a Terry analysis,
      it is incumbent on the suppression court to inquire, based on all
      of the circumstances known to the officer ex ante, whether an
      objective basis for the seizure was present.          Adams v.
      Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612
      (1972).

      Herein, police had much more than an unparticularized hunch that

Appellant was engaged in criminal activity.        As reported by Detective

Venezia, and accepted by the suppression court, the conclusion that

Appellant should be investigated for possible criminal activity was premised


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upon the following objective facts giving rise to reasonable suspicion: 1) the

front door of the home was barricaded and its occupants would not open the

door to permit the sheriffs to execute their warrant; 2) in order to evade

police at the front door, Appellant jumped from a porch in the back,

scrambled down a hill, and started to run away; and 3) there was a strong

odor of raw marijuana emanating from the house which Appellant just fled.

Based on all of the circumstances known to the detectives, they had an

objective basis to investigate Appellant. Hence, we affirm the suppression

court’s conclusion that reasonable suspicion was present herein. Since the

abandonment of the bag was not the result of illegal police conduct,

Appellant’s claim must fail.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2015




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