J-S16038-24
2024 PA Super 121
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ELISE COLES : No. 980 EDA 2023
Appeal from the Order Entered March 17, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008713-2021
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 7, 2024
The Commonwealth appeals1 from the March 17, 2023 order granting
the pre-trial suppression motion filed by Appellee, Elise Coles. After careful
review, we reverse the suppression order and remand for proceedings
consistent with this opinion.
The Honorable Mark J. Moore summarized the relevant facts of this case
as follows:
On September 24, 2020, [Appellee] was among a
group of individuals who were allegedly observed by
Philadelphia police officer Ryan Struble [] sitting on
the southwest corner of Stanley and Norris Streets in
the city and county of Philadelphia smoking what
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* Former Justice specially assigned to the Superior Court.
1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the
suppression court’s March 17, 2023 order will terminate or substantially
handicap the prosecution.
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police believed were brown hand-rolled cigarettes.
Officer Struble further noted that there were multiple
plumes of smoke around them, along with the odor or
marijuana.
Officers Struble and his partner were assigned to the
22nd Police District at the time and were on routine
patrol that evening at approximately 8:30 p.m. The
officers were in full uniform driving a marked police
cruiser.
According to Officer Struble, [Appellee] was seen on
the coiner with approximately two other individuals.
The officers subsequently exited their vehicles and
approached [Appellee] and the others. Per Officer
Struble, they were attempting to investigate smoking
of marijuana on the highway.
As the Officers approached the group, [Appellee] ran
across the street and directly into the property at
1963 N. Stanley Street. Officer Struble described
[Appellee] as wearing a red hat, dark jacket, dark
pants and carrying a Black North Face backpack. The
house [Appellee] ran into was approximately 15-20
feet away from the corner.
While detaining [Appellee], Officer Struble received
information from a fellow officer (who ran into the
property with Struble and other officers) that
somewhere in the kitchen they had found the Black
backpack [Appellee] was seen carrying.
Police Officer [Joshua] Kling testified that he and his
partner, Officer Nestel [] were also on patrol on the
evening in question and were following behind Officer
Struble and his partner. After exiting their car, Officer
Kling and his partner went inside the property with
Struble.
Somewhere inside the property, Officer Kling testified
that he saw [Appellee] without the Black backpack.
Which was in the kitchen area. He testified that it was
about 15 to 20 feet away from where he made contact
with [Appellee] in the house. At that time, he picked
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up the backpack by the handle on top of it and
continuously squeezed the bottom of the bag. Officer
Kling testified that due to his training and experience
that he was able to immediately identify that there
was a gun in the backpack. Once he opened the
backpack, Officer Kling recovered a 32 caliber Colt
Model 1903 handgun.
[Appellee] was subsequently placed into temporary
custody while the Officers checked to see if she had a
license to carry a firearm. [Appellee] was ultimately
arrested after police discovered she did not have a
license to possess a firearm.
There was no one else in the property other than
[Appellee] and the officers.
Both Officers Struble and Kling had body[-]worn
cameras during this incident; however, Struble’s
camera was only activated once he entered the house
looking for [Appellee], and Officer Kling’s camera was
only activated once [Appellee] was placed inside the
back of the police cruiser.
During the incident, the owner of 1963 North Stanley
Street returned to the property. Body[-]worn camera
video showed the owner questioning police about why
they were in his house but there was no video
testimony of him specifically saying that [Appellee]
did not have any permission to be in the property.
Officer Struble gave a statement to Central Detectives
regarding this incident. At the Motion to Suppress,
Struble paraphrased the owner’s response to the issue
of whether [Appellee] had permission to be inside the
property as this:
it was something to the very strong effect that,
I know her from the street, but she shouldn’t
be in my house or doesn’t have permission to
be in my house.
However, when shown his actual statement on
redirect examination, Officer Struble testified that the
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owner did know [Appellee] from the block but did not
know why she would be in his house.
Suppression court opinion, 8/25/23 at 2-4 (citations to notes of testimony and
internal quotation marks omitted).
Appellee was subsequently charged with firearms not to be carried
without a license and carrying firearms on public streets or public property in
Philadelphia.2 On March 29, 2022, Appellee filed an omnibus pre-trial
suppression motion, arguing that the seizure of the firearm was
unconstitutional because the police did not have reasonable suspicion or
probable cause to search the backpack. See Motion to Suppress, 3/29/22 at
1-2; notes of testimony, 3/17/23 at 63. On March 17, 2023, the suppression
court conducted an evidentiary hearing on Appellee’s motion, during which
Officers Struble and Kling testified. Following the hearing, the suppression
court granted Appellee’s suppression motion that same day. This timely
appeal followed on April 14, 2023.3
The Commonwealth raises the following issue for our review:
1. Did the [suppression] court err in suppressing a
gun found in a backpack [Appellee] abandoned
in a house she ran into while fleeing the police
where the house was not hers, she did not have
permission to enter it, and she did not
demonstrate a reasonable expectation of
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2 18 Pa.C.S.A. §§ 6106(a) and 6108, respectively.
3 The Commonwealth and the suppression court have complied with Pa.R.A.P.
1925.
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privacy therein?
Commonwealth’s brief at 4.
Our standard of review in addressing a suppression court’s order
granting a suppression motion is well settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the defendant’s
witnesses together with the evidence of the
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal
citations and quotation marks omitted), appeal denied,
159 A.3d 933 (Pa.
2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied,
987 A.2d 158 (Pa. 2009). “To secure the
right of citizens to be free from such intrusions, courts in Pennsylvania require
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law enforcement officers to demonstrate ascending levels of suspicion to
justify their interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,
1201 (Pa.Super. 2002) (citation omitted). This court has recognized three
types of interactions between members of the public 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. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation
omitted). Thus, pursuant to the Fourth Amendment, a person may not be
lawfully seized, either by means of an investigative detention or a custodial
detention, unless the police possess the requisite level of suspicion.
In the instant matter, the suppression court found that “the Officers
lacked reasonable suspicion and probable cause to search [Appellee’s]
backpack.” Suppression court opinion, 8/25/23 at 6. The suppression court
concluded that it “did not find anything presently dangerous about [Appellee]
or her backpack that would justify the Officers searching that backpack[,]”
and their “unexplained fixation on [Appellee’s] backpack amounted to a mere
hunch that was unrelated to the potential criminal activity afoot at the
intersection of Stanley and Norris Streets that evening.” Id. at 6-7. The
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suppression court further opined that Appellee has a reasonable expectation
of privacy in her backpack and did not possess the intent to abandon. Id. at
7-8.
Our review of both the record and the relevant caselaw does not support
the suppression court’s conclusions. It is well settled in this Commonwealth
that “a defendant has no standing to contest the search and seizure of items
which he has voluntarily abandoned.” Commonwealth v. Hall, 305 A.3d
1026, 1033 (Pa.Super. 2023) (citation omitted). “That is, before a defendant
can challenge the seizure of physical evidence, he must demonstrate that he
had both a possessory interest in the evidence and a legally cognizable
expectation of privacy in the area from which the evidence was seized.”
Commonwealth v. Byrd,
987 A.2d 786, 790 (Pa.Super. 2009) (citation
omitted). This Court has held:
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.
Commonwealth v. Barnette, 760 A.2d 1166, 1170–1171 (Pa.Super. 2000)
(citations and emphasis omitted), appeal denied,
781 A.2d 138 (Pa. 2001).
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We further note 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.”
Byrd, 987 A.2d at 791 (citation omitted). “When the causative factor in the
abandonment is an unconstitutional search and seizure, the contraband must
be suppressed.” In the Interest of Evans,
717 A.2d 542, 545 (Pa.Super.
1998) (citation omitted), appeal denied,
736 A.2d 604 (Pa. 1999).
In the case sub judice, the record reflects that on the evening of
September 24, 2020, Appellee fled from uniformed officers after they
approached her and her cohorts on a street corner to conduct lawful
investigation with respect to their apparent use of marijuana. Notes of
testimony, 3/17/23 at 7-12. During the course of her flight, Appellee
voluntarily abandoned a black North Face backpack she was observed to be
carrying by entering an adjacent house she did not have permission to enter;
discarding it in the kitchen; and then attempting to flee back out of the
residence before the police stopped her. Id. at 12-18. The record further
reflects that at the time the officers retrieved and searched the backpack in
question, Appellee had already abandoned it. Id. at 16, 34-35, 67-68.
Because Appellee abandoned the backpack in a house she had no right to
enter, it logically follows that she did not have a reasonable expectation of
privacy in the backpack and its contents – namely, an unlicensed 32-caliber
Colt Model 1903 handgun – when the police searched it. Id. Contrary to the
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suppression court’s conclusion, therefore, Officer Kling needed neither
reasonable suspicion nor probable cause to search Appellee’s discarded bag.
See Hall, 305 A.3d at 1033.
Based on the foregoing, we find that the suppression court erred in
granting Appellee’s pre-trial suppression motion, reverse the suppression
court’s March 17, 2023 order, and remand this case for trial.
Order reversed. Case remanded for trial. Jurisdiction relinquished.
Date: 6/7/2024
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