Com. v. Garvin, K.

J. S27038/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KYRIK GARVIN, :

:

Appellant : No. 2534 EDA 2014

Appeal from the Judgment of Sentence August 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0011410-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 28, 2015

Appellant, Kyrik Garvin, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a bench

trial and convictions for possession of a controlled substance with the intent

to deliver (“PWID”),1 possession,2 and false identification to a law

enforcement officer.3 He contends the police lacked reasonable suspicion of

criminal activity to seize him and thus the court should have granted his

motion to suppress the recovered evidence. We affirm.

*

Former Justice specially assigned to the Superior Court.

1

35 P.S. § 780-113(a)(30).

2

35 P.S. § 780-113(a)(16).

3

18 Pa.C.S. § 4914.

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We adopt the facts set forth by the trial court’s opinion:4

On July 31, 2013, 10:45 p.m., Philadelphia Police

Officer Sergio Diggs, an experienced narcotics officer and

his partner [Officer Marchetti] received a [flash5] radio call

directing them to go to the 7000 block of Saybrook

Avenue, a high crime and drug location, to investigate a

report that a group of black males were selling narcotics.

[The flash information was for five black males, which

also identified the clothing each wore as follows: (1) a

white shirt with writing and shorts; (2) a black t-shirt, dark

jeans, and a baseball cap; (3) white bean cap and dark

khaki pants; (4) black shirt with writing on the front; and

(5) black jeans and a red and black baseball cap. N.T.

Suppression Hr’g, 5/28/14, at 17.]

The officers[, who were in a marked vehicle,]

immediately proceeded to the . . . block . . . where, upon

arrival, Officer Diggs saw a group of three or four males

standing on the south side of the block. [Officer Diggs did

not see them engage in any criminal behavior. N.T.

Suppression Hr’g at 20-21.] Officer Diggs also observed

Appellant, who was leaning into a blue Mercury Grand

Marquis. [Except for the windshield, that car’s windows

were heavily tinted. Id. at 20.] The males were wearing

clothes that match[ed the] information contained in the

4

We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that

after October 30, 2013, the scope of review for a suppression issue is limited

to the record available to the suppression court. Id. at 1085, 1089 (stating

holding applies to “all litigation commenced Commonwealth-wide after the

filing of this decision”). Because the instant criminal complaint was filed

prior to October 30, 2013, In re L.J. does not apply. We further observe

the instant record is sparse and less than clear as to when a particular event

occurred.

5

“A flash information is based on a report from the initial officers to

investigate the scene of a crime and is broadcast to other police units in the

district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.

1986).

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[flash] broadcast.[6] As the officers proceeded down the

block, Officer Diggs heard someone yell out “Police” after

which he saw Appellant hit the car’s “lock” button as

[Appellant] backed out of the car [on the front passenger

side of the vehicle. N.T. Trial, 5/28/14, at 60]. Appellant

then walked over to the group of males.

Trial Ct. Op., 1/12/15, at 2-3.

It was as Officer Diggs was stopping two and half car lengths behind

Appellant’s vehicle that he saw Appellant exit the vehicle, lock the door, and

walk to the group of males. N.T. Suppression Hr’g at 21-22. Officer Diggs

testified that he turned on the overhead lights and floodlights before he

stopped his vehicle behind Appellant’s vehicle. Id. At this juncture, Officer

Diggs still had not seen any of the males or Appellant engage in criminal

activity. Id.

Officer Diggs continued watching Appellant as he

walked toward the males and observed him toss a key to

the ground. Officer Diggs [exited his vehicle, retrieved the

key, id. at 12,] approached the males and [then] asked if

any of them resided in the property situated behind where

they were standing. All of the males stated that they did

not live on that block of Saybrook Avenue[,] at which time

Officer Diggs asked them for identification.

Trial Ct. Op. at 2

6

On direct examination, Officer Diggs testified that Appellant matched “the

flash and clothes.” N.T. Suppression Hr’g at 14. Officer Diggs, however, on

cross-examination, testified Appellant was wearing a gray t-shirt, gray

shorts, and a gray hat, which he conceded did not match the flash. Id. at

18. The flash did not report a vehicle. Id. at 25.

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In addition to Officer Diggs, the following uniformed officers were

present and “hanging out” with the group of black males: Officer Marchetti

(Officer Diggs’s partner), Officer Kopecki, and Officer Brown.7 N.T.

Suppression Hr’g at 30. With respect to “hanging out,” the following

exchange transpired on cross-examination:

[Appellant’s counsel:] Several uniform police officers

surrounding these group of males; correct?

[Officer Diggs:] There were several uniform officers who

responded to the call. I don’t know about surrounding.

[Appellant’s counsel:] Well, you were there. None of us

were. Were they standing around these group of males?

[Officer Diggs:] Actually, they were very comfortable. A

few of them didn’t get up from sitting[8] on the steps that

they were sitting on, and we were talking to them. Like, it

was a few cops and the guys. I mean, they were hanging

out. Like, they were there.

[Appellant’s counsel:] The males because they were

already there?

[Officer Diggs:] Right, they were already there.

[Appellant’s counsel:] My question to you is, the

positioning of the officers who are standing as such—when

you go back to the patrol wagon to run the information

you receive, those uniformed officers were standing

7

Other than Officer Marchetti, the record does not indicate when the other

officers arrived.

8

We note the record does not establish whether the group of males

subsequently sat on the steps or otherwise resolve the testimonial

contradiction regarding whether they were standing or sitting.

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around where these groups were, as you described,

hanging out; correct?

[Officer Diggs:] Right. We were there. We got all of their

ID’s, and that’s what we do. We get the ID’s, we run the

males, make sure they’re not wanted for anything.

[Appellant’s counsel:] I know it’s what you normally do,

but we’re only asking about this night in question. As you

go to the patrol wagon, I just wanted to know where the

officers were.

[Officer Diggs:] They’re still with the males.

N.T. Suppression Hr’g at 30-31. Officer Diggs testified that none of the men

were free to leave at this juncture. Id. at 29.

Appellant could not produce identification but identified

himself as “Rashean Creara” and gave a purported date of

birth. Officer Diggs checked the name and birth date

Appellant gave several times through police radio and

learned that no such person existed. Officer Diggs

believed that Appellant was attempting to withhold his true

identity in order to hide the fact that he may have had

open warrants. Appellant was advised of the results of the

records check and that he was going to be detained and

taken to a police station so that the officers could learn his

true identity. [It was around this time that the police

advised the other men that they were free to leave. Id. at

34.] Officer Diggs explained [to Appellant] that once a

person is subjected to an investigation, it is [a] crime for

such person to give the investigating officer a false

identification. In response thereto, Appellant stated that

his identification was located in the blue Mercury.

Trial Ct. Op. at 2

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Officer Marchetti unlocks the door of Appellant’s vehicle, 9 opens the

door, looks inside, and says, “There’s drugs in the car.” N.T. Suppression

Hr’g at 10-11, 35, 37. As set forth at the suppression hearing during the

direct and cross-examination of Officer Diggs:

[Officer Diggs:] . . . So Officer Marchetti walked over to

the blue Mercury that [Appellant] was observed in when I

first pulled into the block. And Officer Marchetti opened

the door and he observed—

[Appellant’s counsel:] Objection to what he observed.

[Officer Diggs:] Okay.

The court: Don’t tell us what he observed, but if he said

anything, you’re allowed to tell us what he said.

[Officer Diggs:] Officer Marchetti said that there were

drugs in the car. . . .

* * *

[Appellant’s counsel:] All right. Now after [Appellant’s]

detained, he then tells you that he has identification in the

vehicle; correct?

[Officer Diggs:] Correct.

[Appellant’s counsel:] And that’s when Officer Marchetti

goes over to that vehicle and looks inside; correct?

[Officer Diggs:] Correct.

[Appellant’s counsel:] And he actually opened the door to

look inside; correct?

9

The record does not reflect when or how Officer Diggs gave his partner the

key to Appellant’s vehicle.

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[Officer Diggs:] Correct.

[Appellant’s counsel:] Because he had the keys to the car;

correct?

[Officer Diggs:] Correct.

Id. at 10-11, 35-36.

Officer Diggs proceeded over to the vehicle and shined

his flashlight through its front windshield. Upon doing so,

he observed a large, clear Ziploc bag resting on the

passenger seat under the center armrest filled with

numerous packets of what appeared to be heroin and

crack cocaine as well as used and unused packaging. [Id.

at 11.]

[Officer Diggs did not recall whether Officer Marchetti

shut the door before he used the flashlight to peer through

the front windshield. Id. at 37. Officer Diggs opined that

Officer Marchetti may have been standing at the open door

when Officer Diggs used his flashlight. Id. Officer Diggs

did not recall whether the vehicle’s interior lights activated

when Officer Marchetti opened the door. Id.]

Officer Diggs then contacted Southwest detectives and

advised them about what he had seen. The detectives

arrived at the scene shortly thereafter to execute a search

warrant.

A search of the vehicle yielded a Ziploc bag containing

various smaller bags containing 5.4 grams of crack cocaine

and an amount of heroin as well as numerous packets

filled with heroin . . . . [Detective Langan testified that

he recovered the bag from under the center console

armrest, and that he could see the drugs “in plain view”

through the front windshield. N.T. Trial at 63-64, 68. The

detective, however, later testified that through the front

windshield, he could see only a clear plastic bag but could

not see inside it. Id. at 67.]

Based on the discovery of the bag of drugs, Appellant

was placed under arrest . . . .

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See Trial Ct. Op. at 3-4. No testimony was elicited on whether Appellant’s

vehicle would be subject to an inventory search.

Appellant filed a pre-trial motion to suppress the narcotics and money

seized from Appellant’s car, the car key, and a statement made by

Appellant. On May 28, 2014, the trial court denied Appellant’s motion, and,

following Appellant’s waiver of a jury trial, found Appellant guilty on all

charges. On August 15, 2014, the trial court sentenced Appellant to two to

five years’ confinement for possession with intent to deliver, and ordered no

further penalty for the remaining charges. Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement10 challenging the denial of

his pre-trial motion to suppress.

Appellant raises the following issue:

Did the suppression court improperly deny [Appellant’s]

motion to suppress physical evidence and statements

where police seized him based solely on an anonymous tip

and he did not match any particulars of radio report other

than that he was a black male at a particular location?

Appellant’s Brief at 2.

Appellant contends the trial court erred by categorizing the initial

interaction as a mere encounter. Id. at 9. He claims that when the police

approached him, they conducted an investigative detention without the

requisite reasonable suspicion. Id. at 8-9. Appellant asserts the trial court

10

The trial court granted several continuances for Appellant, who was

waiting for the completion of the transcripts.

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improperly concluded the doctrine of abandonment applied because there

was no evidence the police forced or coerced him into discarding the key to

his car. Id. at 9. The substance of his argument was that the police

compelled him to abandon his keys, and he “did not voluntarily abandon his

keys, and along with it any expectation of privacy in his vehicle.” 11 Id. at

18, 21. He argues the trial court erred by invoking the inevitable discovery

doctrine “to excuse the police misconduct.” Id. We hold Appellant is due no

relief.

Our standard of review in addressing a challenge to a

trial court’s denial of a suppression motion is limited to

determining whether the factual findings are supported by

the record and whether the legal conclusions drawn from

those facts are correct. Where the prosecution prevailed in

the suppression court, we may consider only the

Commonwealth’s evidence and so much of the evidence for

the defense as remains uncontradicted when read in the

context of the record as a whole. Where the record

supports the factual findings of the trial court, we are

bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating

the legal conclusion drawn by the suppression court, this Court may also

consider uncontradicted testimony from the suppression hearing not

included in the suppression court’s findings of fact. Commonwealth v.

Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998). It is axiomatic we

11

Notably, Appellant did not argue that alternatively, absent police coercion,

by voluntarily dropping his keys, he nonetheless maintained his privacy

interest to his vehicle.

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cannot reverse on an argument not raised by the appellant. See Pa.R.A.P.

302. Conversely, however, we can affirm on any basis. Commonwealth v.

Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010)

Initially we note that Fourth Amendment jurisprudence

has led to the development of three categories of

interactions between citizens and the police. 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 to respond. The

second, an “investigative detention[,]” must be supported

by a reasonable suspicion; it subjects a suspect to a stop

and a period of detention, but does not involve such

coercive conditions as to constitute the functional

equivalent of an arrest. Finally, an arrest or “custodial

detention” must be supported by probable cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations and

footnote omitted).

The Pennsylvania Supreme Court adopted the objective

Jones/Mendenhall12 standard “in determining whether the conduct of the

police amounts to a seizure or whether there is simply a mere encounter

between citizen and police officer.” Commonwealth v. Matos, 672 A.2d

769, 774 (Pa. 1996).

In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],

this Court adopted the United States Supreme Court’s

decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L. Ed. 2d 889 (1968), which permits a police officer to

effect a precautionary seizure where the police have a

reasonable suspicion that criminal activity is afoot. Terry,

12

United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth

v. Jones, 378 A.2d 835 (Pa. 1977).

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and by analogy Hicks, recognized that there are some

instances in which an individual may not be arrested, but

will still be considered to be “seized.” In Jones, this Court

adopted an objective standard[13] for determining what

amount of force constitutes the initiation of a Terry stop:

whether a reasonable person innocent of any crime, would

have thought he was being restrained had he been in the

defendant’s shoes. This case, which preceded the United

States Supreme Court’s decision in . . . Mendenhall, . . .

was a precursor to the so-called “Mendenhall” test

posited by the United States Supreme Court: “a person

has been ‘seized’ within the meaning of the Fourth

Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have

believed he was not free to leave.”

Id. at 773-74 (punctuation and some citations omitted).

The Pennsylvania Supreme Court provided further guidance in applying

this “totality of the circumstances” test:

In evaluating the circumstances, the focus is directed

toward whether, by means of physical force or show of

authority, the citizen-subject’s movement has in some way

been restrained. In making this determination, courts

must apply the totality-of-the-circumstances approach,

with no single factor dictating the ultimate conclusion as to

whether a seizure has occurred.

Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and

citations omitted). “The totality-of-the-circumstances test is ultimately

centered on whether the suspect has in some way been restrained by

13

Thus, the subjective beliefs of the officer, e.g., a belief that a seizure

occurred and the seized individual is not free to leave, “are immaterial to an

objective seizure determination.” Commonwealth v. Lyles, 97 A.3d 298,

302 (Pa. 2014).

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physical force or show of coercive authority.” Commonwealth v. Lyles, 97

A.3d 298, 302 (Pa. 2014) (citation omitted).

Factors examined in this totality-of-the-circumstances approach

include “all circumstances evidencing a show of authority or exercise of

force, including the demeanor of the police officer, the manner of expression

used by the officer in addressing the citizen, and the content of the

interrogatories or statements.” Mendenhall, 715 A.2d at 1119. This Court

also set forth a non-exclusive list of factors:

[T]he 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. Otherwise inoffensive contact between a member

of the public and the police cannot, as a matter of law,

amount to a seizure of that person.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)

(en banc) (citation omitted).

With respect to the questions asked by an officer, we acknowledge the

following:

Asking questions is an essential part of police

investigations. In the ordinary course a police officer is

free to ask a person for identification without implicating

the Fourth Amendment. Interrogation relating to one’s

identity or a request for identification by the police does

not, by itself, constitute a Fourth Amendment seizure.

Commonwealth v. Au, 42 A.3d 1002, 1005 (Pa. 2012) (citation, quotation

marks, and alteration omitted).

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In Au, the following transpired:

The arresting officer testified that, while on routine

patrol in the early morning hours, his attention was drawn

to an automobile parked in the lot of a business premises.

According to the officer’s testimony, it was unusual to see

a car in the location at such time, and he decided to make

further inquiry. The officer did not activate the emergency

lights of his police cruiser, but he positioned his vehicle at

an angle relative to the parked automobile so as to

illuminate the passenger side. The officer said that he did

so without blocking the egress of the vehicle, which he

then approached, probably with a flashlight. Further, he

explained:

As I walk up the passenger rolled down the window.

I walked up and just stated what’s going on and they

stated that they were hanging out. I noticed that

there were six individuals in the vehicle, four in the

back seat and two in the front-seat. The individuals

all looked very young to me, especially those in the

back. So I asked if everyone was 18 and the

individuals in the back said no.

* * *

Now, at this point I asked the passenger for his

identification. He opened the glove box, which was seated

right in front of him. When he did there was two baggies

of which were clearly marijuana in the glove box direct-in

his immediate control. I kept talking to him, requested

another officer to come out because of the illegal drugs. I

went over to the driver’s side opened up the door and

asked for his identification as well. When I did that there

was also drugs on that side of the vehicle.

Id. at 1003-04.

In addressing whether the officer’s request for identification elevated a

mere encounter to an investigative detention, the Au Court observed that

the United States Supreme Court

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has settled on an approach allocating very modest weight

to the possibility for psychological coercion arising from a

fairly wide range of police conduct which may be regarded

as being appropriate to and inherent in the circumstances

facilitating the interaction. Cf. WAYNE R. LAFAVE, SEARCH AND

SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.4(a), at

425 (4th ed. 2004) (observing that “the confrontation is a

seizure only if the officer adds to those inherent pressures

by engaging in conduct significantly beyond that accepted

in social intercourse[,]” which include moral and instinctive

pressures to cooperate).

Au, 42 A.3d at 1008.

Accordingly, the Au Court held a seizure did not occur:

In the present case, the arresting officer’s unrebutted

testimony indicates that he did not: activate the

emergency lights on his vehicle . . . ; position his vehicle

so as to block the car that [the defendant] was seated in

from exiting the parking lot, . . . ; brandish his weapon;

make an intimidating movement or overwhelming show of

force, . . . ; make a threat or a command; or speak in an

authoritative tone. . . . In terms of the use of the

arresting officer’s headlights and flashlight, this was in

furtherance of the officer’s safety, and we conclude it was

within the ambit of acceptable, non-escalatory factors.

Id. (footnote and citations omitted). “[T]he arresting officer’s request for

identification,” our Supreme Court concluded, “did not transform his

encounter with [the defendant] into an unconstitutional investigatory

detention.” Id. at 1009. As the Lyles Court emphasized, “Au holds that, in

assessing the totality of the circumstances, a request for identification does

not in and of itself elevate what would otherwise be a mere encounter into

an investigative detention.” Lyles, 97 A.3d at 304.

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Similar to Au, the Lyles Court ascertained whether a seizure occurred

based on the following facts:

At about 4:30 p.m. on July 11, 2009, two officers on

patrol in a marked police vehicle saw [the defendant] and

another male sitting on the steps of a vacant building in

south Philadelphia. The officers approached the men to

question their reason for loitering there, as a large number

of burglaries had recently been reported in the area. [The

defendant] stated his grandmother lived on the block. One

officer asked for [the defendant’s] identification, which

[the defendant] gave him. When the officer began writing

down the identification information, he saw [the

defendant] place his hand in his right pocket and turn his

right side away from the officer’s view; the officer told [the

defendant] to stop reaching and remove his hand. [The

defendant] again put his hand in his right pocket.

Concerned [the defendant] might be reaching for a

concealed weapon, the officer instructed him to remove his

hand for the second time. When [the defendant] reached

into the pocket a third time, the officer placed [the

defendant] against the wall of the building to conduct a

safety frisk for weapons. [The defendant] once again put

his hand in the pocket, so the officer forcibly removed it,

and a plastic bag containing blue packets filled with crack

cocaine became visible.

Lyles, 97 A.3d at 300.

On appeal, the Lyles defendant challenged the seizure, arguing that

the police conducted an investigative detention:

[The defendant] asserts a reasonable person would not

feel free to terminate the encounter, noting two uniformed

officers, with no knowledge of criminal activity in the area

on that particular day, approached two young men in

daylight, asked for their identity and reason for being

there, and then, unsatisfied, commanded [the defendant]

to produce identification.

Id. at 305 (footnote omitted).

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In addressing the defendant’s argument, our Supreme Court noted:

This Court and the United States Supreme Court have

repeatedly held a seizure does not occur where officers

merely approach a person in public and question the

individual or request to see identification. See Hiibel v.

Sixth Judicial District Court of Nevada, 542 U.S. 177,

185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004) (quoting

INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80

L. Ed. 2d 247 (1984)) (officer free to ask for identification

without implicating Fourth Amendment, and requests for

identification do not, by themselves, constitute seizures);

Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,

115 L. Ed. 2d 389 (1991) (citation omitted) (even when

officers lack suspicion, no Fourth Amendment violation

where they merely approach individuals on street to

question them or request identification); Au, at 1007–09

(citations omitted) (same); Commonwealth v. Ickes,

582 Pa. 561, 873 A.2d 698, 701–02 (2005) (citation

omitted) (same). Officers may request identification or

question an individual “so long as the officers do not

convey a message that compliance with their requests is

required.” Bostick, at 437, 111 S. Ct. 2382. Although

police may request a person’s identification, such

individual still maintains “‘the right to ignore the police and

go about his business.’”

Lyles, 97 A.3d at 303.

Notwithstanding that general principle, an encounter

involving a request for identification could rise to a

detention when coupled with circumstances of restraint of

liberty, physical force, show of authority, or some level of

coercion beyond the officer’s mere employment, conveying

a demand for compliance or that there will be tangible

consequences from a refusal.

Id. at 304.

Upon considering the totality of the circumstances, our Supreme Court

held the facts established a mere encounter:

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The officers knew the area was one where numerous

burglaries had occurred, and if not that particular day, at

least recently so. Seeing men sitting at a vacant building,

there is no impropriety in the officers’ approaching the

men, nor in asking their reason for loitering there. The

officer’s request for identification, which came after [the

defendant’s] response that his grandmother lived on the

block, did not indicate “dissatisfaction” with the response—

the relevance of this claim being unclear—nor did it

objectively imply an intent to detain [the defendant]

beyond confirming who he was.

These were permissible acts that do not implicate the

Fourth Amendment or Article I, § 8. Therefore, any

“escalation” perceived by [the defendant] or by the officer

did not render the request objectively unconstitutional.

The request was not accompanied by physical restraint,

manifestation of authority, or a mandate to comply. The

officer simply asked for [the defendant’s] identification; he

did not demand it or require acquiescence, and [the

defendant] gave it to him voluntarily. The officer did not

express dissatisfaction with [the defendant’s] reply or tell

[the defendant] he was not free to leave. There is no

evidence [the defendant] was confined or prevented from

departing, or that the officer impeded his movement in any

way, as the interaction took place on a public street in

broad daylight. There was no evidence the officer

brandished a weapon or threatened [the defendant] or

that the interaction was per se coercive or intimidating.

There is no record of the officer displaying an aggressive

demeanor or using an authoritative tone suggesting there

would be negative consequences if [the defendant] failed

to identify himself; he did nothing more than request

appellant’s identification. Had there been no repetitive

furtive conduct by [the defendant], there is no reason to

think the encounter would not have terminated promptly

once the officer recorded the minimal information he

requested.

Id. at 305-06 (footnote omitted). Thus, the Pennsylvania Supreme “Court

and the United States Supreme Court have repeatedly held a seizure does

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not occur where officers merely approach a person in public and question the

individual or request to see identification.” Id.

In sum, the question of “whether the police needed some level of

requisite cause at the time they initially approached” the defendant is

“governed by the type of encounter that the police initiated when they

approached” the defendant. In re D.M., 781 A.2d 1161, 1164 (Pa. 2001)

(emphases added). The critical inquiry is what type of encounter the police

initiated at the time they initially approached the defendant. See id. After

identifying the type of encounter—e.g., mere encounter, investigative

detention, or custodial detention—this Court must then determine whether

the police had the requisite cause for that encounter, respectively, e.g., no

suspicion required, reasonable suspicion that criminal activity was afoot, or

probable cause for an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d

at 839 n.4.

Instantly, unlike the officer in Au, Officer Diggs activated his overhead

lights before stopping his vehicle. Cf. Au, 42 A.3d at 1008. Similar to Au,

Officer Diggs, however, stopped behind Appellant’s vehicle, did not brandish

a weapon, intimidate, or initiate a show of force. Cf. id. The officer’s use of

the floodlights was arguably in furtherance of his safety,14 as his stop was in

14

The record reflects no reason for activating the floodlights. We also note

that Appellant posited the floodlights were pointed at him, see Appellant’s

Brief at 20, but there is no support in the record for this allegation.

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a high crime area late at night and prompted by the flash. See Trial Ct. Op.

at 1-2; see Collins, 950 A.2d at 1047 n.6; cf. Au, 42 A.3d at 1008.

Somewhat comparable to the officers in Lyles, who approached two men in

an area known for recent burglaries, see Lyles, 97 A.3d at 300, Officer

Diggs approached the group of males as they matched the flash. 15 See Trial

Ct. Op. at 1-2. Officer Diggs then asked the group for their identification,

which by itself does not establish an investigative detention. See id. at 2;

Lyles, 97 A.3d at 304. At some point during this interaction, two additional

officers arrived who were “hanging out”16 with the group. See N.T.

Suppression at 30; Collins, 950 A.2d at 1047 n.6. The record, however,

does not establish whether those additional officers displayed a show of

authority or exercised force. See Mendenhall, 715 A.2d at 1119. We also

acknowledge Officer Diggs heard someone announce “police” as they

approached and Appellant tossing his key to the ground.17 See Trial Ct. Op.

at 2. Viewing, however, the record in the light most favorable to the

Commonwealth and under the totality of the circumstances, we conclude

15

As noted above, we acknowledge the contradicting testimony on whether

Appellant matched the flash. See n.6, supra.

16

As noted above, neither the Commonwealth nor Appellant illuminated the

nature of the “hanging out.”

17

The Commonwealth elicited no testimony qualifying this particular action

as, e.g., suspicious, furtive, or otherwise consistent with individuals engaged

in criminal activity.

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that at this juncture, the police had initiated a mere encounter.18 Cf. Lyles,

97 A.3d at 305-06; Au, 42 A.3d at 1008. Although, unlike the facts in Lyles

and Au, Officer Diggs activated the overhead lights and other officers

arrived to “hang out,” absent additional evidence of a show of authority or

exercise of force, we conclude this was initially a mere encounter with

respect to Appellant. Cf. Lyles, 97 A.3d at 305-06; Au, 42 A.3d at 1008.

Thus, the police did not require reasonable suspicion. See In re D.M., 781

A.2d at 1164.

Having concluded this was a mere encounter, we next examine

whether the police could validly search his vehicle by using Appellant’s key.

As noted above, Appellant contends he abandoned his key “as a direct

result” of the police’s investigative detention. See Appellant’s Brief 18.

Therefore, Appellant opines, the trial court erred by concluding he voluntarily

abandoned the key. See id. We disagree with Appellant.

It is well settled that “[a]lthough abandoned property may normally be

obtained and used for evidentiary purposes by the police, such property may

not be utilized where the abandonment is coerced by unlawful police action.”

Commonwealth v. Hall, 380 A.2d 1238, 1241 (Pa. 1977) (quotation marks

omitted); accord Commonwealth v. Byrd, 987 A.2d 786, 791 (Pa. 2009).

18

Thus, we respectfully disagree with the trial court’s determination that the

police initiated an investigative detention. See Trial Ct. Op. at 5. We may,

however, affirm on any basis apparent from the record. See Clouser, 998

A.2d at 661 n.3.

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In the seminal case of Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.

1976), our Supreme Court set forth the following test for ascertaining

whether a defendant abandoned property:

The theory of abandonment is predicated upon the clear

intent of an individual to relinquish control of the property

he possesses.

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 abandonment should be

considered. Police pursuit or the existence of a police

investigation does not of itself render abandonment

involuntary. 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.

Moreover, it is well settled that no one has standing to

complain of a search or seizure of property that he has

voluntarily abandoned. . . .

Although abandoned property may normally be

obtained and used for evidentiary purposes by the police,

such property may not be utilized where the abandonment

is coerced by unlawful police action.[19]

Shoatz, 366 A.2d at 1219-20 (emphasis added and citations omitted).

Abandonment can be established where an individual’s

surrender of possession of the property constitutes such a

relinquishment of interest in the property that a

19

Thus, instantly, it was necessary to ascertain the legality of the

interaction.

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reasonable expectation of privacy may no longer be

asserted.

* * *

[T]he mere fact that the property was placed in an area

open to the general public is not sufficient to establish

abandonment. The evidence must also clearly

demonstrate that the [defendant] attempted to dissociate

himself from the property.

Commonwealth v. Johnson, 636 A.2d 656, 658-59 (Pa. Super. 1994)

(citation omitted).

As noted above, Appellant’s sole argument was that the police

compelled him to abandon his keys. See Appellant’s Brief at 18. Because

we held that the interaction was a lawful mere encounter, no unlawful police

coercion occurred that forced Appellant to abandon his keys. See Johnson,

636 A.2d at 658-59. As we reiterated supra, Appellant did not argue that

he did not relinquish his privacy interest in his vehicle by voluntarily

abandoned his keys; he argued solely that the police compelled him to

abandon his keys. See generally Pa.R.A.P. 302 (courts cannot reverse on

an argument not raised). Finally, because we have concluded the interaction

was lawful, it is unnecessary to ascertain whether the contraband would

have inevitably been discovered.20 See Commonwealth v. Gonzalez, 979

20

We note, however, the Commonwealth failed to adduce any testimony

whatsoever regarding, e.g., that the vehicle would have been towed or

subjected to an inventory search. See Commonwealth v. Ingram, 814

A.2d 264, 272 (Pa. Super. 2002) (“The burden of proving . . . inevitable

discovery rests with the prosecution.” (citation omitted)).

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A.2d 879, 890 (Pa. Super. 2009) (holding inevitable discovery “doctrine

provides that evidence which would have been discovered was sufficiently

purged of the original illegality to allow admission of the evidence.”).

Accordingly, we affirm the judgment of sentence, albeit on different grounds.

See Clouser, 998 A.2d at 661 n.3.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2015

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