# Commonwealth v. Bennett > Superior Court of Pennsylvania · March 3, 1992 · 412 Pa. Super. 603 URL: https://www.frixlaw.com/law-library/cases/9637821 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Garland J. BENNETT, Appellee - **Court:** Superior Court of Pennsylvania - **Decided:** March 3, 1992 - **Citations:** 412 Pa. Super. 603; 604 A.2d 276; 1992 Pa. Super. LEXIS 440 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Wieand, Cirillo, Johnson - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9637821 ## How later opinions describe it (automated extraction) - holding that "[a] match between the so-called profile and characteristics exhibited by a defendant does not, in and of itself, create a reasonable suspicion sufficient to justify an investigatory stop" (quoting United States v. Hanson, 801 F.2d 757, 762 (5th Cir. 1986)) ## Opinion text JOHNSON, Judge, dissenting. I agree with my colleagues on the Majority Opinion that the order granting the motion to suppress the evidence should be affirmed. However, my colleagues go much further than the trial court. They conclude that the mere verbal denial of ownership constitutes an abandonment of the duffel bag Garland J. Bennett was observed carrying. I believe this is an inappropriate extension of the law of abandonment as I understand it. Accordingly, I must dissent. The very experienced trial judge, the Honorable Walter R. Little, correctly observed, citing to 1 W. LaFave, Search and Seizure, § 2.6(b), at 467 (2d ed. 1987): [T]he fundamental question is whether the relinquishment occurred under circumstances which indicate the defendant retained no justified expectation of privacy in the object. *626 In . his Opinion filed pursuant to Pa.R.A.P. 1925, Judge Little sets forth the following facts, all of which are supported in the record: Officer Dan Kaminski offered uncontroverted testimony that he observed the Defendant initially carrying the duffel bag at issue, entering and leaving a public bathroom while retaining possession of the bag, observed the Defendant make two telephone calls while holding the duffel bag, and eventually carry the duffel bag outside the airport terminal to await a bus to Pittsburgh. Officer Kaminski further testified that the only two periods when the duffel bag was not being held by the Defendant were when the Defendant was in the bathroom, at which time the duffel bag was between his feet on the floor, and when the Defendant placed the duffel bag up against the wall at the bus stop. The only indication that Officer Kaminski had that the duffel bag containing the drugs did not belong to Defendant was when Defendant replied negatively to Officer Kaminski’s question as to whether or not the bag belonged to Defendant, which was after the police had explained their purpose of being in the airport. Defendant later testified that he lied to Officer Kaminski. When Officer Kaminski was told that the bag did not belong to Defendant, he immediately proceeded to the duffel bag and began to examine its contents. This occurred after Officer Kaminski testified that he observed the Defendant, throughout the entire period of observation, to have the bag either on his shoulders or between his legs, and after the officers had identified themselves and told the Defendant of their purpose of being in the airport — drug investigations. Opinion, Little, J., filed September 28, 1990, pages 5-6. (Citations to Suppression Hearing Transcript omitted; emphasis added). Prom these facts, Judge Little concluded, and I wholeheartedly agree, that: *627 ____having viewed Defendant with the duffel bag for a preceding period of time, the officer cannot be reasonably expected to say that he considered the property abandoned on the mere assertion of the Defendant that it was not his property. Id., at page 10. The Majority cites to many federal decisions to support its conclusion that disclaimer of ownership may, standing by itself, constitute abandonment. I do not find any of those federal cases going that far. Like Judge Little, the Majority looks also to Warren LaFave for guidance, but reads the roadsigns differently. I need not dispute that United States v. Colbert, 474 F.2d 174 (5th Cir.1973) is the leading case on abandonment by disclaimer of ownership. However, the Colbert court held that abandonment is primarily a question of intent, and that maxim has been followed by our courts here in Pennsylvania. Commonwealth v. Shoatz, 469 Pa. 545, 553 , 366 A.2d 1216, 1220 (1976); Commonwealth v. Williams, 380 Pa.Super. 227, 231-32 , 551 A.2d 313, 315 (1988). In Shoatz , our supreme court outlined the test for determining whether abandonment has occurred, as follows: 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____ 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. Shoatz, 469 Pa. at 553 , 366 A.2d at 1219-20 (citations omitted, emphasis in original). *628 Unlike the analysis performed by the distinguished trial judge, which included in-depth consideration of both Shoatz and Williams, supra, my colleagues appear to place their emphasis on the federal decisions and, without relating those decisions to the facts in this case, “conclude that their rationale is persuasive.” Even in the leading federal case, Colbert , the suspects had set their briefcases on the sidewalk, claimed they were book salesmen, denied ownership in the briefcases and began walking away from the scene, leaving the briefcases behind. It would not be unreasonable to infer that they had a clear intent to relinquish control over the property when they began walking away. Contrast that to the facts now before us. The majority concedes that Bennett was the victim of a forcible detainer, with police officers flanking him on both sides, and one of the officers grabbing him by the arm. A uniformed officer also approached and stationed himself in front of Bennett, further blocking his path. It was under these circumstances, and at this point, that Officer Kaminski inquired about the duffle bag. Officer Kaminski testified as follows: DIRECT EXAMINATION BY MR. HEISTER; Q All right, and did you say anything after that? A Yes, I asked — ____ and I asked him if he had any baggage other than the sea bag that he was carrying with him, which of course, at that time, was against the glass doors leading into the terminal. Mr. Bennett’s response to that question was to say that he didn’t have any bags. At that point, I asked him, specifically pointing at the sea bag leaning against the glass doors, “That bag over there, that sea bag is not yours?” He said, “No, it’s not.” Okay, at that point, I proceeded to the sea bag and began to search____ Q Did he say anything at all? *629 A No, other than to say that he wasn’t carrying any baggage and that specific bag was not his. THE COURT: You knew that not to be true, THE WITNESS: That’s correct. THE COURT: You saw him carry the bag and set it down? THE WITNESS: Yes. THE COURT: You knew he had possession of the bag? THE WITNESS: Right. THE COURT: Even though he told you a lie, you knew this not to be true, right? THE WITNESS: Correct. Suppression Hearing Transcript, June 8, 1990, pages 21-22, 23-24, R.R., pages 53a-54a, 55a-56a. The Majority has failed, I believe, to consider all relevant circumstances existing at the time of the alleged abandonment. It has also failed to focus on the intent of the suspect. Under neither Shoatz nor Williams could one reasonably conclude that it was Garland Bennett’s clear intent to relinquish control over the sea bag, at the time he was surrounded by police officers, made no move to depart the scene or move further away from his possessions, and told a blatant lie to one of the questioning officers. I am unaware of any Pennsylvania case that goes as far as the Majority would take our law of abandonment. Nor do I believe that our supreme court, if faced with th^ peculiar facts of this case, would be prepared to declare that a mere false declaration, without more and in the face of overwhelming indicia of control and intention to retain control, may suffice to establish abandonment. For these reasons, I must vigorously dissent. Since I conclude that there was no abandonment on the facts before us, I would not consider whether the alleged abandonment had been coerced by unlawful police action. To its credit, the Commonwealth does not seek to argue that the officers had probable cause to search the defen *630 dant’s duffel bag absent abandonment. Thus, the order granting suppression was correct. Commonwealth v. Williams, supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637821. Public record. Not legal advice.