J. S33009/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
CASSEEM CAIN,                            :         No. 2792 EDA 2014
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, August 26, 2014,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0008250-2013


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 10, 2015

        Appellant appeals the judgment of sentence contending that the trial

court erred in failing to suppress the evidence against him. We affirm.

        On July 23, 2014, a jury found appellant guilty of two counts of

possessing a controlled substance with intent to deliver, and two counts of

simple possession.1      On August 26, 2014, the trial court imposed an

aggregate sentence of 36 to 72 months’ imprisonment plus 3 years’

probation.    During trial, the parties litigated a suppression motion which

sought suppression of evidence recovered when police performed an initial

Terry stop of appellant on November 20, 2013,2 and also subsequent



1
    35 P.S. § 780-113(a)(30) and (a)(16), respectively.
2
    Terry v. Ohio, 392 U.S. 1 (1969).
J. S33009/15


evidence uncovered at appellant’s apartment pursuant to a search warrant

which was obtained predicated on the evidence uncovered during the Terry

stop.   The trial court made the following findings of fact after the

suppression hearing:

           1.    On November 20, 2013, Darby Borough Police
                 Officer John Ettore arrested and charged the
                 Defendant, Caseem Cain, with: three counts of
                 Possession With Intent to Deliver a Controlled
                 Substance (Cocaine), three counts Possession
                 of a Controlled Substance, (Cocaine), three
                 counts of Possession of Drug Paraphernalia,
                 Selling Controlled Substance Without Label,
                 (Xanax) and Endangering Welfare of Children.

           2.    On April 4, 2014, Defendant, through counsel,
                 filed a Motion to Suppress Evidence requesting
                 the suppression of items found and seized from
                 his person: (1) one clear glassine baggie
                 containing a white solid suspected of being
                 crack cocaine, (2) $1,081.00 U.S. currency,
                 (3) keys, and a (4) a cell phone.

           3.    The Defendant alleges that his stop, search,
                 and arrest were made without reasonable
                 suspicion and/or probable cause.

           4.    Defendant, through counsel, in his Motion to
                 Suppress     Evidence    also  requests    the
                 suppression of items found and seized as a
                 result of a search warrant of his residence.
                 The following items were seized from his
                 residence: (1) a cellophane wrapper containing
                 suspected cocaine, (2) rental receipts, (3) a
                 postal receipt, (4) an appointment card from
                 Adult Probation, (5) three five dollar bills,
                 (6) two small glassine baggies, (7) a digital
                 scale, (8) one unmarked prescription bottle
                 containing blue pills, (9) a bag of change
                 containing approximately $36.85, (10) two
                 parcels of mail addressed to the defendant,


                                  -2-
J. S33009/15


               (11) one apple-designed clear baggie, (12) one
               composition    notebook,    (13)    numerous
               correspondence between the defendant and his
               attorney, the courts, and prison, and
               (14) men’s clothing.

          5.   The Defendant alleges that the search
               pursuant to search warrant was in violation of
               his rights under the 4th, 5th, and 14th
               amendments of the U.S. Constitution, Article I,
               Section 8 and Section 9 of the Pennsylvania
               Constitution.

          6.   On April 16, 2014, a Suppression Hearing was
               held on Defendant’s “Suppression Motion.”

          7.   The   Suppression     Hearing     began    with
               arguments    to    determine     whether    the
               Defendant had an expectation of privacy in the
               apartment located at 17 N. 2nd Street in Darby,
               Pennsylvania that the Police searched.

          8.   The Defendant testified that he lived on the top
               floor apartment, 17B, located at 17 N. 2nd
               Street    in    Darby,    Delaware      County,
               Pennsylvania. The Defendant had been renting
               the apartment from Crystal Davis and her
               mother, Michelle Davis. He resided at the
               apartment with Crystal and Michelle Davis. He
               had rented the apartment for about a month.
               The Defendant possessed keys for the
               apartment. The Defendant paid Michelle Davis
               $200.00 per month for rent. He paid cash and
               had receipts that were seized by the Police at
               the time of the raid. The receipts, which were
               from a receipt form indicating rent, were
               located on a shelf, when the police seized
               them.

          9.   The Court determined that the Defendant had
               an expectation of privacy in apartment 17B
               located at 17 N. 2nd Street in Darby,
               Pennsylvania.



                                 -3-
J. S33009/15


          10.   Subsequent to this determination, part-time
                Police Officer John Ettore, an Officer with the
                Darby Borough Police Department, testified.
                Officer Ettore testified that 17 N. 2nd street is a
                high-crime and high-drug area. In fact, the
                Officer has been involved in fifty (50) drug
                investigations in that vicinity and has about
                forty (40) drug arrests in that area.

          11.   Officer Ettore testified that he previously knew
                of the Defendant from the County Drug Task
                Force and through information received from a
                Confidential Informant.        The Confidential
                Informant provided information that the
                Defendant was staying at 17 N. 2nd Street.
                The Officer stated that the Confidential
                Informant also provided information that the
                Defendant was engaged in drug transactions.
                Despite    this   knowledge,      however,    the
                Confidential Informant was never used to
                obtain drugs from the Defendant.

          12.   Prior to stopping Defendant on November 20,
                2013, Officer Ettore had observed the
                Defendant traveling on Main Street in Darby,
                Pennsylvania and observed the Defendant
                engage in hand to hand transactions. During
                these transactions, money was exchanged for
                an item. These transactions had occurred in
                the morning near the “Wishing Well Bar”, when
                the Bar was not open, and also in the evening.

          13.   On redirect, Officer Ettore testified that two
                weeks prior to the incident at issue,
                Officer Ettore and Officer Paul McGrenera
                observed an exchange by the Defendant and
                another individual in the evening.      Officer
                McGrenera, with the assistance of Officer
                Ettore, attempted to stop the other individual
                involved in the transaction who ran away.
                Both the Defendant and the other individual
                managed to evade the Officers.




                                   -4-
J. S33009/15


          14.   On November 20, 2013, at 9:40 a.m.,
                Officer Ettore was on duty working patrol when
                he received a radio transmission reporting that
                the Defendant had just left his residence. At
                this point, Officer Ettore had been two blocks
                away in uniform and a marked patrol vehicle.
                Officer Ettore drove down Main Street and
                observed the Defendant walking on Main
                Street towards the 500 block of Main Street.

          15.   As soon as Officer Ettore saw the Defendant,
                the Officer observed the Defendant take
                something out of his pocket in his fist and look
                back at the Officer.      Officer Ettore further
                explained that the Defendant was wearing a
                sweatshirt and removed something from his
                left pocket and looked back at the Officer.
                Officer Ettore testified that he could not tell
                what the object was.        Officer Ettore also
                testified that he had reason to believe that that
                [sic] the Defendant was traveling to the
                Wishing Well Bar.

          16.   As soon as Officer Ettore observed the
                Defendant pull something from his pocket,
                Officer Ettore called Officer Paul McGrenera.
                Officer Ettore testified that he intended to stop
                the Defendant when he saw the Defendant
                remove      something      from     his   pocket.
                Officer Ettore also testified that he did not
                intend to arrest the Defendant on the morning
                of the incident. The two Officers pulled up
                onto the sidewalk upon which the Defendant
                was walking.      Officer Ettore testified that
                neither he nor Officer McGrenera activated
                their overhead lights at the time of the stop.

          17.   Officers Ettore and McGrenera exited their
                respective vehicles with no weapons drawn.
                When Officer Ettore exited his vehicle, he was
                approximately (3) three to (4) four feet away
                from the Defendant and saw the Defendant
                throw a clear, plastic baggie on the ground.
                Officer Ettore further clarified that he had been


                                   -5-
J. S33009/15


                approaching the Defendant from behind, with
                the Defendant’s back to the Officer, and that
                the Defendant threw the baggie in the Officer’s
                direction. At this point, neither Officer had
                spoken to the Defendant.

          18.   The baggie that Officer Ettore observed the
                Defendant discard was a clear, plastic baggie
                containing four smaller baggies with a white
                substance inside. The Officer observed the
                baggie on the ground before telling the
                Defendant to place his hands on the vehicle.
                The Defendant was then placed under arrest.
                The contents of the baggie field-tested
                positively for cocaine.

          19.   On cross examination, Officer Ettore testified
                that he prepared the Affidavit of Probable
                Cause for the search warrant. The basis for
                the search warrant was the contraband
                recovered at the stop.

          20.   After Officer Ettore’s testimony, Officer
                Paul McGrenera testified. Officer McGrenera
                has been a Yeadon Borough Patrolman for the
                past five years. On the date of the incident,
                Officer McGrenera had been a Darby Borough
                Patrolman for three years. Officer McGrenera
                testified that N. 2nd Street is known to be a
                high-crime       and      high-drug        area.
                Officer McGrenera has been involved in more
                than 100 investigations for drugs and more
                than 50 arrests for drugs in the vicinity of this
                incident.

          21.   Officer McGrenera testified that he knew the
                Defendant prior to this incident. In the month
                prior to this incident, Officer McGrenera had
                observed the Defendant in the same area
                around the Wishing Well Bar both in the
                morning and evening hours. The Wishing Well
                Bar is not open during the morning hours.




                                   -6-
J. S33009/15


           22.   On November 20, 2013, Officer McGrenera was
                 on duty and in uniform. The Officer received a
                 call from Officer Ettore that Officer Ettore was
                 going to make an investigatory stop.
                 Officer McGrenera testified that he did not
                 intend to arrest the Defendant on the morning
                 of the incident.

           23.   Officer McGrenera testified that he pulled up
                 onto the sidewalk upon which the Defendant
                 was walking. As the Officer exited his patrol
                 vehicle, he saw the Defendant discard a clear,
                 plastic baggie. At this point, the Defendant
                 was ordered to place his hands on the patrol
                 vehicle.

           24.   The Defendant also testified. The Defendant
                 testified that he had been walking along the
                 sidewalk when two police officers pulled up and
                 told him to put his hands up. The Defendant
                 contends that he took his hands out of his
                 pocket and, as a result, the baggie fell out of
                 his pocket.       On cross-examination, the
                 Defendant testified that the Officers did not
                 activate their overhead lights on their patrol
                 vehicles.

Order Denying Defendant’s Suppression Order, 5/1/14 at 1-5.

     We begin our analysis with our standard of review:

           Our standard of review of a denial of suppression is
           whether the record supports the trial court’s factual
           findings and whether the legal conclusions drawn
           therefrom are free from error. Our scope of review
           is limited; we may consider only the evidence of the
           prosecution 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 findings of the suppression court, we
           are bound by those facts and may reverse only if the
           court erred in reaching its legal conclusions based
           upon the facts.



                                   -7-
J. S33009/15


Commonwealth v. Wilson, 111 A.3d 747, 754 (Pa.Super. 2015), quoting

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002)

(citations omitted).

      Our courts have recognized three levels of interaction between police

and citizens, each requiring three increasing quantities of suspicion:

            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. Carter, 105 A.3d 765, 768 (Pa.Super. 2014), quoting

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

omitted), appeal denied, 87 A.3d 320 (Pa. 2014).          Instantly, the police

interaction with appellant would constitute an investigative detention

requiring reasonable suspicion.

            [T]o establish grounds for reasonable suspicion, the
            officer must articulate specific observations which, in
            conjunction with reasonable inferences derived from
            those observations, led him reasonably to conclude,
            in light of his experience, that criminal activity was
            afoot and that the person he stopped was involved in
            that activity. The question of whether reasonable
            suspicion existed at the time [the officer conducted
            the stop] must be answered by examining the
            totality of the circumstances to determine whether
            the officer who initiated the stop had a particularized
            and objective basis for suspecting the individual
            stopped.


                                     -8-
J. S33009/15



Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015), quoting

Commonwealth v. Muhammed, 992 A.2d 897, 900-901 (Pa.Super. 2010)

(citations omitted).

      We find the trial court’s findings and conclusions are supported by the

record and we affirm on the basis of the trial court’s opinion. Experienced

police officers witnessed several suspicious hand-to-hand transactions by

appellant in a high drug activity area.   They were familiar with appellant

having been alerted to his activity by a confidential informant and their own

observations. Weeks prior to the investigatory stop in this case, appellant

evaded another investigatory stop by the same officers after their

observation of a suspicious hand-to-hand transaction with another individual

who fled.   Clearly, appellant was under suspicion as a drug dealer and

stopped en route to an area where he had previously been observed

engaging in such activity.    Prior to appellant actually being stopped or

spoken to by the officers, he threw contraband to the ground.            The

investigatory stop was reasonable.     The discarded contraband was not

coerced.

      Judgment of sentence affirmed.




                                    -9-
J. S33009/15



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015




                          - 10 -
                                                                                     Circulated 07/28/2015 03:44 PM




    IN TIIJi COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA
                             CRJMINAL DIVISION


COMMONWF..ALTHOF PF.NNSYLVANIA                          NO. 8250-2013

                 v.
CASEEMCAfN



Matthew Deb[ucci, Esquire, Assistant District Attorney for the Commonwealth
Kenneth Sexton, Esquire,Attorney for the Defendant

                      ORDER DENYING DEFENDANT'S SUPPRESSION MOTION


           AND NOW, this 29th day of April, 2014 upon consideration of the Defendant's

"Suppression Motion" and the Suppression Hearing held on April 16, 2014, it is hereby

ORDEREDAND DECREED that the Motion is DENIED.


      The Court finds as foJlows:


      I.        FINDINGS OF FACT

                 1.        On November 20, 2013, Darby Borough Police Officer John Ettore arrested
                           and charged the Defendant, Caseem Cain, with: three counts of Possession·
                           With Intent lo Deliver a Controlled Substance'(Cocaine), three counts
                           Possession of a Controlled Substance,2 (Cocaine); three counts of Possession
                           of Drug Paraphemalia.i Selling Controlled Substance Without Label,11
                           (Xanax) and EndangeringWelfare of Children.s

                2.         On April 4, 2014, Defendant, through counsel, filed a Motion to Suppress
                           Evidence requesting the suppression of items found and seized from his
                           person: (1) one clear glassine baggie containing a white solid suspected of
                           being crack cocaine, (2) $1,081 .00 U.S. currency, (3) keys, and a (4) a cell
                           phone.                           ·


1
  35 Pa.C.S.    §780-J 13(a)(30)
135
     Pll.C.S.   §780-l 13(a)(16)
3
  35 Pa.C.S.    §780-l 13(a)(32)
4
  18 J>a.C.S.   §780-1 I 3(a)( l 8)
5
  18 J'a.C.S.   §4304(a)(I)
                                                                                                Circulated 07/28/2015 03:44 PM




              3.       The Defendant alleges that his stop, search, and arrest were made without
                       reasonable suspicion and/or probable cause.

              4.       Defendant, through counsel, in his Motion to Suppress Evidence also requests
                       the suppression of items found and seized as a result of a search warrant of his
                       residence. The foJlowing Hems were seized from his residence: (I) a
                       cellophane wrapper containing suspected cocaine, (2) rental receipts, (3) a
                       postal receipt, (4) an appointment card from Adult Probation, (5) three five
                       doJJar bills, (6) two small glassine baggies, (7) a digital scale, (8) one
                       unmarked prescription bottle containing blue pills, (9) a bag of change
                       containing approximately $36.85, (10) two parcels of mail addressed lo the
                       defendant, (11) one apple-designed clear baggie, (12) one composition
                       notebook, ( 13) numerous correspondence between the defendant and his
                       attorney, the courts, and prison, and (14) men's clothing".

              5.       The Defendant alleges that the search pursuant to search warrant was in
                       violation of his rights under the 4th, 5lli and 14t11 amendments of the U.S.
                       Constitution, Article I, Section 8 and Section 9 of the Pennsylvania
                       Constitution.

              6.       On April 16, 2014, a Suppression Hearing                      was held on Defendant's
                       "Suppression Motion."

              7.       The Suppression Hearing began with arguments to determine whether the
                       Defendant had an expectation of privacy in the apartment located at 17 N. 2nd
                       Street in Darby, Pennsylvania that the Police searched.

              8.      The Defendant testified that be lived on the top floor apartment, 17B, located
                      al 17 N. 2"d Street in Darby, Delaware County, Pennsylvania. Toe Defendant
                      had been renting the apartment from Crystal Davis and her mother, Michelle
                      Davis. He resided at the apartment with Crystal and Michelle Davis. He bad
                      rented the apartment for about a month. 111e Defendant possessed keys for the
                      apartment. The Defendant paid Michelle Davis $200.00 per month for rent.
                      He paid cash and had receipts th.at were seized by the Police at the time of the
                      raid. The receipts, which were from a receipt form indicating rent, were
                      located on a shelf, when the police seized them.

             9.       The Court determined that the Defendant had an expectation of privacy in
                      apartment l 7B located at 17 N. 211<l Street in Darby, Pennsylvania.

              10.     Subsequent to this determination, part-time Police Officer John Ettore, an
                      Officer with the Darby Borough Police Department, testified. Officer Ettore
                      testified that 17 N. 2"d street is a high-crime and high-drug area. In fact, the

6
 Thu Defendant's Suppression Motion (at avermcnt 1 I) alleges that the Defendant gave inculpatory statements
concerning the above crimes as a result of bis stop and arrest but the issue of an Incriminating statement was not
raised at the Suppression Hearing.


                                                          2
                                                                    Circulated 07/28/2015 03:44 PM




        Officer has been involved in fifty (50) drug investigations in that vicinity and
        has about forty (40) chug arrests in that area.

11.    Officer Ettore testified that he previously knew of the Defendant from the
       County Drug Task Force and through information received from a
       Confidential Informant, The Confidential Informant provided information that
       the Defendant was staying at 17 N. 2"d Street. The Officer stated that the
       Confidential Informant also provided information that the Defendant was
       engaged in drug transactions. Despite this knowledge, however, the
       Confidential Informant was never used to obtain drugs from the Defendant.

12.    Prior to stopping Defendant on November 20, 2013, Officer Ettore had
       observed the Defendant traveling on Main Street in Darby, Pennsylvania and
       observed the Defendant engage in hand· to hand transactions. During these
       transactions, money was exchanged for an item. These transactions had
       occurred in the morning near the "Wishing Well Bar", when the Bar was not
       open, and also in the evening.

13.    On redirect, Officer Ettore testified that two weeks prior to the incident at
       issue, Officer Ettore and Officer Paul McGrenera observed an exchange by
       the Defendant and another individual in the evening. Officer McGrenera., with
       the assistance of Officer Ettore, attempted to stop the other individual
       involved in the transaction who ran away. Both the Defendant and the other
       individual managed to evade the Officers.

14.    On November 20, 2013, at 9:40 a.m., Officer Ettore was on duty working
       patrol when he received a radio transmission reporting that the Defendant had
       just left his residence. At this point, Officer Ettore had been two blocks away
       in uniform and a marked patrol vehicle. Officer Ettore drove down Main
       Street and observed the Defendant walking on Main Street towards the 500
       block of Main Street.

I 5.   As soon as Officer Ettore saw the Defendant, the Officer observed the
       Defendant take something out of bis pocket in his fist and look back at the
       Officer. Officer Ettore further explained that the Defendant was wearing a
       sweatshirt and removed something from his left pocket and looked back at the
       Officer. Officer Ettore testified that he could not tell what the object was.
       Officer Ettore also testified that he had reason to believe that that the
       Defendant was traveling to the Wishing Well Bar.

16.    As soon as Officer Ettore observed the Defendant pull something from his
       pocket, Officer Ettore called Officer Paul McGrenera. Officer Ettore testified
       that be intended to stop the Defendant when he saw the Defendant remove
       something from his pocket. Officer Ettore also testified that he did not intend
       to arrest the Defendant on the morning of the incident. The two Officers
       pulled up onto the sidewalk upon which the Defendant was walking. Officer



                                    3
                                                                       Circulated 07/28/2015 03:44 PM




           Ettore testified that neither he nor Officer McGrenern activated their overhead
           lights at the time of the stop.

    17.   Officers Ettore and McGrenera exited their respective vehicles with no
          weapons drawn. When Officer Ettore exited his vehicle, he was approximately
          (3) three to (4) four feet away from the Defendant and saw the Defendant
          throw a clear, plastic baggie on the ground. Officer Ettore further clarified that
          he had been approaching the Defendant from behind, with the Defendant's
          back to the Officer, and that the Defendant threw the baggie in the Officer's
          direction. At this point, neither Officer had spoken to the Defendant.

    18.   The baggie that Officer Ettore observed the Defendant discard was a clear,
          plastic baggie containing four smaller baggies with a white substance inside.
          The Officer observed the baggie on the ground before telling the Defendant to
          place his hands on the vehicle. The Defendant was then placed under arrest.
          The contents of the baggie field-tested positively fol' cocaine.

    19.   On cross examination, Officer Ettore testified that he prepared the Affidavit of
          Probable Cause for the search warrant. The basis for the search warrant was
          the contraband recovered at the stop.

    20.   After Officer Ettore's testimony, Officer Paul Mcflrenera testified. Officer         -»


          McGrenera has been a Yeadon Borough Patrolman for the past five years. On
          the date of the incident, Officer McGrenera had been a Darby Borough
          Patrolman for three years. Officer Mcflrenera testified that N. 2nd Street is
          known to be a high-crime and high-drug area. Officer McGrenera has been
          involved in more than 100 investigations for drugs and more than 50 arrests
          for drugs in the vicinity of this incident.

    21.   Officer McGrenera testified that he knew the Defendant prior to this incident.
          In the month prior to this incident, Officer Mcflrenera had observed the
          Defendant in the same area around the Wishing Well Bar both in the morning
          and evening hours. The Wishing Well Bar is not open during the morning
          hours.

    22.   On November 20, 2013, Officer McGrenera was on duty and in uniform. The
          Officer received a call from Officer Ettore that Officer Ettore was going to
          make an investigatory stop. Officer Mcfirenera testified that he did not intend
          to arrest the Defendant on the morning of the incident.
r
    23.   Office!' McGrenera testified that he pulled up onto the sidewalk upon which
          the Defendant was walking. As the Officer exited his patrol vehicle, he saw
          the Defendant discard a clear, plastic baggie. At this point, the Defendant was
          ordered to place his hands on the patrol vehicle.




                                       4
                                                                             Circulated 07/28/2015 03:44 PM




        24.      The Defendant also testified. The Defendant testified that he had been walking
                 along the sidewalk when two police officers pulled up and told him to put his
                 hands up. The Defendant contends that he took his hands out of his pocket
                 and, as a result, the baggie fell out of his pocket. On cross-examination, the
                 Defendant testified that the Officers did not activate their overhead lights on
                 their patrol vehicles.

ll. CONCLUSIONS OF LAW


  I. Motion to Suppress Evidence/Reasonable Suspicion

        1.    The Fourth Amendment to the United States Constitution and Article I, Section 8

              of the Pennsylvania Constitution protects individuals from unreasonable searches

              and seizures, thereby ensuring the "right of each individual to be let alone."

              Commonwealth v. Blair, 575 A.2d 593, 596 (Pa. Super. 1990).

        2. To secure the right of its citizens to be free from intrusions, courts in

              Pennsylvania require law enforcement officers to demonstrate ascending levels of

              suspicion to justify their interactions with citizens as those interactions become

              more intrusive. Commonwealth v. Boswell. 554 Pa. 275, 721 A.2d 336 (1998).

              The Court determined that interactions between police and citizens may be

              characterized as a "mere encounter," an "investigative detention," or a "custodial

              detention."

        3. The first of these interactions is a "mere encounter", or a request for information,

              which need not be supported by any level of suspicion.   It docs not implicate the

              Fourth Amendment.     See Commonwealth v. BradlcyJ 724 A.2d 351 (Pa. Super.

              1999).




                                               5
                                                                      Circulated 07/28/2015 03:44 PM




4. TI1e second level is an "investigative detention," or as commonly referred to a

     Terry stop, which must be supported by reasonable suspicion that the person

     seized is engaged in criminal activity. id.

5.   Tf the interaction rises to the level of an investigative detention, the police must

     possess reasonable    and articulable suspicion that criminal
                                           •   I
                                                                          activity is afoot.

     Commonwealth v. Jackson. 428 Pa.Super. 246, 249, 630 A.2d 1231, 1233 (1993).

     In order to demonstrate reasonable suspicion, the police officer must be able to

     point to specific and articulable facts and reasonable inferences drawn from those

     facts in light of his or her experience. Jackson, 698 A.2d at 573.

6. The third level is a custodial detention, which requires probable cause. Probable

     cause exists if there are facts and circumstances within the police officer's

     knowledge that would warrant a person of reasonable caution to believe an

     offense has been committed.     Commonwealfu v. Myers, 728 A.2d 960, 962 (Pa.

     Super. 1999).

7. To evaluate the level of suspicion possessed by an officer, tile court must view the

     totality of the circumstances     through the eyes of a trained officer.          See,

     Commonwealth v. Riley, 715 A.2d I 131, 1135 (Pa.Super, 1998), appeal denied,

     558 Pa. 617, 737 A.2d 741 (1999).

8. In considering the totality of the circumstances, the court must take into account

     all relevant facts when determining whether a warrantless an-est was supported by

     probable cause. ln re O.A., 717 A.2d 490, 495 (Pa.1998).




                                       6
                                                                   Circulated 07/28/2015 03:44 PM




9. In the case of ~mmonwealtb v. Johnson, 849 A.2d 1236, (Pa. Super. 2004) the

   Superior Court held that a reliable CI's tip of a man arriving al a location with

   drugs provided reasonable suspicion for an investigatory detention.

10. Infon:nation provided by an informant may legitimately form the basis for

   probable cause where, for example, "police independently      corroborate the tip."

   Commonwealth v. Luv. 735 A.2d 87, 90 (Pa. 1999).

11. The Pennsylvania Supreme Court has held that a Cl's tip, alone, does not

   establish probable cause to make a warrantless arrest. An arresting officer must

   corroborate the tip to establish probable cause. See, Commonwealth v. 0.A., 717

   A.2d 490 (Pa. 1998).

12. In the case sub Judice, the Darby police had received information from a reliable

   CI, advising them. that the defendant was involved in drug activity. The

   information given to the police provided predictive behavior that was able to be

   corroborated by the police. See, Commonwealth v. Griffin, 954 A.2d 648, 651

   (Pa. Super. 2008). Here, Officer Ettore and Officer McGrenera were able lo

   corroborate the Cl's tip and observed the Defendant engage in hand to hand drug

   transactions on prior occasions to Novem ber 20, 2013.

13. It merits emphasis    that this case involves: (1) the tip of a CI, (2) police

   surveillance which confirmed the predictive information provided by the CI, (3)

   experienced officers in a high-crime, high-drug area (4) both Officers observed

   Defendant's prior actions which the Officers believed to be drug transactions and

   (4) Officer Ettore and Officer Mcflrenera observing the Defendant throwing

   contraband in plain view.




                                    7
                                                                         Circulated 07/28/2015 03:44 PM




J4. The totality of circumstances ansing from the Cl's tip plus the Officers'

   independent       corroboration   through   surveillance   provided   the Officer with

   probable cause to arrest the Defendant without a warrant.

15. This Court finds that the underlying initial encounter between Officer Ettore and

   the Defendant began as an investigative detention. Officer Ettore received a radio

   transmission that morning that the Defendant had left his residence. The Officer

   observed the Defendant walking on Main Street in Darby, Pennsylvania in the

   direction of the Wishing Well Bar. This is a high-drug, high-crime area Prior to

   stopping Defendant on November 20, 2013, Officer Ettore had observed the

   Defendant traveling on Main Street and observed the Defendant engage in hand to

   hand transactions. During these transactions, money was exchanged for an item.

   These transactions had occurred in the morning near the "Wishing Well Bar",

   when the Bar was not open, and also in the evening. The Court finds that the

   Officer's observations alone gave rise to a reasonable and articulable suspicion of

   some illegal activity justifying a brief investigative detention.

16. When the Officer arrived at the scene, he observed the Defendant take something

   from his left pocket and throw it to the ground, When Officer Ettore exited his

   vehicle, he was approximately (3) three to (4) four feet away from the Defendant

   when be observed the Defendant throw a clear, plastic baggie on the ground.

   There was   110   conversation between the Defendant and the Officer prior to the

   Officer observing the Defendant throwing the contraband. The baggie that Officer

   Ettore observed the Defendant discard was determined by the Officer to be a

   clear, plastic baggie containing four smaller baggies with a white substance




                                        8
                                                                             Circulated 07/28/2015 03:44 PM




           inside. The Officer observed the baggie on the ground before telling the

           Defendant to place his hands on the vehicle. The contents of tbe baggio field-

           tested positively for cocaine.

      10. The testimony of the two Officers was credible.

      11. The court finds that based upon the totality of the circumstances, Officers Ettore

           and McGrenera     had reasonable suspicion that criminal activity was afoot to

           justify stopping the Defendant. However, upon approaching the Defendant the

           Officers had not only reasonable suspicion but had probable cause to arrest the

           Defendant because they observed the Defendant throw contraband to the ground.

      12. Consequently, this Court ultimately finds that there was no unlawful action oflaw

           enforcement in violation of the Defendant's rights under Article I, Section 8 of

           the Constitution of the Commonwealth of Pennsylvania or the 4th, 5th and 14th

           Amendments to the United States Constitution.

II.   Motion to Suppress Evidence/Plain View

      1.   The United States Supreme Court has held that there is no reasonable expectation

           of privacy where an object is in plain view. Commonwealth v. Petroll, 738 A.2d

           993, 999 (Pa. 1999) citing Ill. v. Gates, 462 U.S. 213 (1983).


      2. The plain view doctrine permits the warrantless seizure of evidence in plain view

           when: (1) an officer views. the object from a lawful vantage point; and (2) it is

           immediately apparent to him that the object is incriminating and (3) the police

           must have a lawful right of access to the object. Commonwealth v~ McCree, 592

           Pa. 238, 924 A.2d 621 (2007).




                                             9
                                                                     Circulated 07/28/2015 03:44 PM




3. In the case of Commonwealth v. Guzman, 44 A.3d 688, 695 (Pa. Super. 2012)

    the Superior Court held that a Police Officer properly seized drugs discovered in

    the front seat of a vehicle, under the plain view doctrine. citing Commonwealth v.

    Brown, 23 A.3d 544, 551-52 (Pa.Super.2011) (en bane) (citing Horton v.

    California 496 U.S. 128, 110 S.Ct. 23.01, 1 JO L.Ed.2d 112 (l 990)) (stating plain

    view doctrine allows warrantless seizure of items when: (1) police observe item
                              I




    from lawful vantage point; (2) incriminating nature of i tern is immediately

    apparent; and (3) police have lawful right of access to objectj.The court opined:


           Here, Officer Wetzel was in a lawful vantage point outside the SUV.
           Because Appellee had left the door open when he voluntarily jumped out
           of the car, Officer Wetzel needed only to stand outside the car and look
           inside. The drugs in question were located in a transparent package on the
           floor, sticking out from beneath the passenger seat; and Officer Wetzel
           immediately recognized the contents as illegal narcotics.

   Commonwealth v. Guzman,44A.3d 688, 695 (Pa. Super .. 2012).


6. The facts in the   case sub Judice arc similar to those in Guzman. The drugs in
   question were located in a transparent package viewed in plain view. Officer

   Ettore immediately recognized the contents as illegal narcotics. The Officer

   viewed the contraband from a public street on Main Street in Darby, PA, a lawful

   vautage point. This meets the first prong of the plain view analysis.


9. The second prong of the plain view analysis requires that it must be immediately

   apparent to the officer that the object is incriminating. Here, it was immediately

   apparent to the trained Officer that the clear plastic baggic contained contraband.




                                      10
                                                                              Circulated 07/28/2015 03:44 PM




       J 0. Finally, the police officer must have lawful right of access to the objects. Officer

          Ettore had a lawful right of access to an object thrown to the ground on a public

          street.


       11. The courl finds the seizure of the contraband was within the parameters of the

          plain view exception to the warrant requirement justifying seizure of the items in

          plain view. The Defendant's Constitutional rights were not offended by the

          seizure.


lll.   Motion to Suppress Evidence/ Forced Abandonment

       17. As Officer Ettore approached the Defendant, he threw a clear plastic baggie to the

          ground. The clear, plastic baggie contained four smaller baggies with a white

          substance inside. The Officer observed the baggic on the ground before arresting

          the Defendant. The contents of the baggie field-tested positively for cocaine. The

          Defendant alleges in his Omnibus Pretrial Motion that this incriminating item was

          abandoned as a result of the .illegal action of Jaw enforcement. He urges this court

          to apply the doctrine of forced abandonment, reasoning that the Officer forced

          him to abandon the baggie through bis illegal seizure of him. Since there was no

          unlawful police action in this case, there can be no "forced abandonment".

          Commonwealth v. Tillman, 423 Pa. Super. 343, 621 A.2d.148 (1993).




                                            11
                                                                                              Circulated 07/28/2015 03:44 PM




           18.    In the case sub Judice, the doctrine of forced abandonment is inapposite. The

                  Defendant's abandonment of the cont raband was not the result of any police

                  coercion.

Ill.      Motion to Suppress Evidence/Search Warrnnt

          1.      Defendant alleges in his "Suppression Motion" that the search warrant that the

                  Darby police obtained to search his residence located at 1 ih N. 2"d St. Apt. B, ·

                  Darby, PA 19023 was illegal because the search warrant was not based upon

                  probable cause.

          2.      Earlier in the day, on November 20, 2013. Officer Ettore properly seized

                  drugs   the Defendant       had thrown            to the ground       on Mahi                Street,           as

                  incriminating evidence found in plain view. As a result, there was probable

                 . cause for the search warrant issued of Defendant's residence.

          WHEREFORE,          Defendant's     Omnibus             Pre-Trial   Motion     is   DENffiD.                   The
                                                                                                                             .
   Defendant's an-est was legal and all evidence seized at the time of Defendant's arrest and

   pursuant to the execution of the search warrant shall be adrnissi bJe at trial.

          Trial in the above-captioned      matter is scheduled for May S, 2014 at 9:00 A.M. in

       Courtroom 2.




                                                        .. ....


                                                                      .JAMES F. ND.,ON, JR?(f) • ...:·~
                                                                                                   I•
                                                                                                  . r-' ..
                                                                                                  .? ,;, .           '"'I'
                                                                                                                                      ·-
                                                                                                 ·-··~i'"'l          ::J:
                                                                                                  11<::..
                                                                                                +;; .. ;:"~I        ~




                                                 12
