COMMONWEALTH of Pennsylvania, Appellant v. Navarro BANKS
No. 922 MDA 2016
Superior Court of Pennsylvania.
June 12, 2017
977
Argued May 2, 2017
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
OPINION BY MOULTON, J.:
The Commonwealth of Pennsylvania appeals from the May 9, 2016 order entered in the Lycoming County Court of Common Pleas granting Navarro Banks’ motion to suppress рhysical evidence. Because we conclude that the trial court abused its discretion in granting Banks relief on grounds not asserted in his motion to suppress, we reverse.
The facts of this case are undisputed. On July 21, 2015, Pennsylvania Board of Probаtion and Parole Agent Kriger1 received an anonymous tip that Banks was violating his parole. Based on this allegation, Agent Kriger and Agent Tracy Gross2 (together, “the Agents“) went to Banks’ parole-approved residence and knockеd on the door. Banks answered the door and spoke with the Agents on the front porch; Agent Gross did not see any contraband from the porch and could not remember whether the front door was open during the conversation. The Agents аsked Banks whether “he had anything in his home that would violate his parole.” N.T., 4/29/16, at 5. Banks admitted that he had a firearm and some synthetic marijuana in the house. Based on that admission, the Agents entered the residence and located the fire-arm, which was hidden behind Banks’ bed-
Banks was arrested and charged with possession with intent to manufacture or deliver a controlled substance (“PWID“), possession of a controlled substance, possessiоn of drug paraphernalia, and persons not to possess firearms.3 On March 9, 2016, Banks filed a motion to suppress, arguing that the Agents “lacked reasonable suspicion to search [his] residence since [the] search was based on an unreliable, uncorroborated, anonymous tip,” and, as such, the physical evidence recovered from that search should be suppressed as fruit of the poisonous tree. Mot. to Supp., 3/9/16.
On April 29, 2016, the trial court held a hearing on thе motion. Banks’ argument at the hearing was consistent with the argument in his written motion. His counsel stated that “the simple fact that [the Agents] went to [Banks‘] home based on an anonymous tip[,] ... with the purpose of trying to find contraband, forms the basis of an unreasonable search because the tip was not corroborated.” N.T., 4/29/16, at 10. In response, the trial court asked counsel about the Agents’ initial contact with Banks:
THE COURT: Okay, let me ask you a question.
[BANKS’ COUNSEL]: Yes, Your Honor.
THE COURT: Are you saying that they‘re not allowed to even go to his house, knock on the door, and ask him questions? Because that‘s what they said. I mean it‘s---let me try to ask the question differently. It seems like the testimony was, hey we got this tip he was doing stuff he shouldn‘t have been doing, so we decided to check it out. We go to his door, we knоck on his door, he comes out, we ask him a question, he answers the question. It‘s not a search at that point, is it? I-I guess that‘s what your contention is, though.
[BANKS’ COUNSEL]: Our contention is that at that point they have made contact solely because of the uncorroborated anonymous tip. This isn‘t a regularly scheduled home visit, this isn‘t even a random home visit. Because the sole purpose was due to this anonymous tip that it tainted the whole process, including going to his home and submitting him to questioning about what might be found within.
...
THE COURT: Okay, so ... your argument is that they‘re not allowed to even go the home and ask him questions based on an anonymous tip, because the asking of questions constitutes a search?
[BANKS’ COUNSEL]: We would submit that without corroborating the evidencе-or the tip itself, that it was improper for them to place Mr. Banks-to go to Mr. Banks’ [] residence and yes, and to-to put him under questioning concerning that uncorroborated tip.
THE COURT: That‘s my point. You have to use the search and/or seizure language. So what you‘re saying is when they went there, knocked on the door, and he came out and they started asking him questions, that it was a search?
[BANKS’ COUNSEL]: Yes, we would argue that either he was seized at that point, and was placed-and that-
THE COURT: Search or a seizure?
[BANKS’ COUNSEL]: Yes.
Id. at 10-11. The Commonwealth then argued that the Agents’ actions were a
THE COURT: So what you‘re saying is they had the right to go there. At the time they went they knocked on the door, he came out, and they just talked to him, and there‘s nothing that prevents them from just talking to him, and once he admittеd that there were firearms-that there was a firearm and synthetic marijuana, that gave them the reasonable suspicion to then conduct the search?
[COMMONWEALTH]: Correct, Your Honor ...
Id. at 12-13.
On May 9, 2016, the trial court granted the motion to suppress. In its opinion, the trial court оutlined the parties’ respective positions but concluded that “[t]he determinative issue in this case ... involves the level of interaction the parole agents had with [Banks] once they went to his home.” Trial Ct. Op., 5/9/16, at 3. The trial court explained that it was granting the motion to suppress because the Agents initiated an investigative detention of Banks when they questioned him on the porch. Id. Finding that the interaction was not a “mere encounter,” the trial court concluded that “[t]here clearly was a level of ‘official compulsion to stop or respond[,]’ ” and that there was no “credible information” to support the investigative detention. Id. at 3-4.
On June 7, 2016, the Commonwealth filed a timely notice of appeal.5 On appeal, the Commonwealth asserts that the trial court erred in granting Banks’ suppression motion. Our standard of review on such matters is well settled:
When the Commonwealth appeals from a suppression order, this Court follows a clеarly defined scope and standard of review. We 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 uncоntradicted. This Court must first determine whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. In appeals where there is no meaningful dispute of fact, as in the case sub judice, our duty is to determine whether the suppression court properly applied the law to the facts of the case.
The Commonwealth argues that the trial court “erred in granting the Motion to Suppress because [Banks] failed to raise, in his Motion to Suppress, an allegation that [he] was illegally detained.” Cmwlth.‘s Br. at 14. The Commonwealth notes that Banks’ motion to suppress “simply alleged that the search of thе residence was illegal as the [A]gents lacked reasonable suspicion to search the residence based on an anonymous tip,” and did not raise the issue of whether Banks had been seized at the outset of the conversation on his porch. Id. at 14-15. Thus, the Commonwealth asserts that Banks waived this issue by failing to include it in his motion to suppress.6 We agree.
Without raising this issue in any form of objection or motion, Whiting effectively waived his challenge tо the search of the car. We have been unable to find any evidence of an oral motion to amend Whiting‘s pre-trial suppression order, nor do the docket sheets refer to such a filing.
Accordingly, it was improper, and therefore an abuse of discretion for the trial court to voluntarily raise this issue and rule upon it in Whiting‘s favor where he never raised the issue in any suppression motion, let alone with specificity and particularity. Moreover, it was improper for the reason that the court never took any testimony or evidence at the suppression hearing on this issue and, therefore, could not make an informed decision under
Pa.R.Crim.[P.] 323(i) .7 Finally, the Commonwealth was not able to fulfill its burden of presenting evidence on the issue and establishing that such challenged evidence was not obtained in violation of the defendant‘s rights. In fact, the transcribed testimony of the suppression hearing only touches upon the consent to search Whiting‘s cаr.
Id. at 1087-88 (citations and footnote omitted) (emphasis added).
Here, Banks did not argue that he was illegally seized in his motion to suppress;
Order reversed.
MOULTON, J.
SUPERIOR COURT JUDGE
Notes
Section 6153(d)(6) provides:
The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordanсe with such case law, the following factors, where applicable, may be taken into account:
- The observations of agents.
- Information provided by others.
- The activities of the offender.
- Information provided by the offender.
- The experience of agents with the offender.
- The experience of agents in similar circumstances.
- The prior criminal and supervisory history of the offender.
- The need to verify compliance with the conditions of supervision.