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COMMONWEALTH PENNSYLVANIA v. RUSSELL SHOATZ (11/24/76)

decided: November 24, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL SHOATZ, APPELLANT (TWO CASES)



COUNSEL

Walter J. Collins, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Pomeroy, J., took no part in the consideration or decision of this case.

Author: Nix

[ 469 Pa. Page 550]

OPINION OF THE COURT

Appellant Russell Shoatz was convicted by a jury of murder of the first degree, assault and battery with intent to murder, aggravated robbery and conspiracy, all of which stemmed from a series of events surrounding the August 29, 1970, shootings of two Philadelphia police officers. Post-trial motions for new trial and in arrest of judgment were denied by the court en banc and Shoatz was sentenced to life imprisonment.*fn1 This direct appeal followed.

[ 469 Pa. Page 551]

Initially, appellant raises several allegations of error by the suppression court. First, he attacks the legality of his arrest and search as violative of his rights under the Fourth Amendment. We disagree.

"Our responsibility upon review is to determine whether the record supports the factual findings of the lower court and the legitimacy of the inferences and legal conclusions drawn therefrom. Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Stafford, 451 Pa. 95, 101, 301 A.2d 600, 604 (1974). Furthermore, we are to consider only the evidence of the prosecution's witnesses and that portion of the testimony offered by the defendant which is uncontradicted. See generally Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Bundy, supra." Commonwealth v. Boone, 467 Pa. 168, 173, 354 A.2d 898, 900 (1975).

The Commonwealth's evidence established that on January 19, 1972, at approximately 6:30 P.M., Officers Berry and King were in a radio patrol wagon when an unknown male approached them and stated: "There's three . . . dudes hanging around the dress shop across the street . . . I think they're going to hold the place up or either burglarize the place, because when they seen [sic] me they ran up the alley." The officers went across the street and searched the alley but their search was fruitless. As they came out onto the street a woman from the dress shop in question stated that three men had been "hanging around" outside the store and had entered the adjacent alley. The police informed her of their search and assured her they would maintain surveillance of the premises. The officers proceeded toward their patrol wagon at which point three men, two of whom were carrying suitcases, appeared on the steps of

[ 469 Pa. Page 552]

    the entrance to the alley*fn2 whereupon Officer King said, "Hold it gentlemen, I'd like to speak to you."

The two males with the suitcases dropped them and all three ran down the stairs and across the sidewalk to a car parked at the curb. With guns drawn the police ordered the men to halt and they complied. The three were then instructed to place their hands on the roof of the vehicle. Officer Berry proceeded to frisk Carter while King retrieved the suitcases. King opened the blue suitcase and discovered various automatic weapons, hand guns, explosives and ammunition. The three were placed under arrest. Additional help was summoned and a third officer arrived who "frisked" Holder and retrieved a P-38 pistol and an ammunition clip. The suspects were placed in a police vehicle and taken to the police station.

The suppression court found sufficient basis for an investigative stop and frisk by the officers. Moreover, the court concluded that the arrests occurred only after the gun was taken from Mark Holder as a result of this frisk, and the subsequent search of the suitcases was permissible as incident to the lawful arrests. However, the notes of testimony from the suppression hearing contradict these findings. The officers' testimony clearly indicated that the revolver was not recovered from Holder's waistband until after the officers had opened the suitcases and discovered their contents. Therefore the seizure of the gun could not have provided the legal basis for the search of the suitcases. At post-trial motions, the court en banc upheld the legality of the arrest on the theory that the suitcases were abandoned by the suspects and the contraband recovered therefrom provided probable cause for the arrests. We agree.

[ 469 Pa. Page 553]

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. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir. 1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra; United States v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F.2d 330. 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. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973).

Moreover, it is well settled that no one has standing to complain of a search or seizure of property that he has voluntarily abandoned. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Colbert, supra.

This Commonwealth has adopted the theory of abandonment of property only when it is shown that the seized evidence was not discarded as a result of unlawful police coercion.

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.

[ 469 Pa. Page 554]

As the Fifth Circuit noted in Fletcher v. Wainwright: "Several courts have considered this situation and have uniformly held that the initial illegality tainted the seizure of the evidence since the throwing was the direct consequence of the illegal entry. In such a situation it cannot be said that there was a 'voluntary abandonment' of the evidence. The only courts that have allowed the seizure of evidence that was thrown out the window have emphasized that 'no improper or unlawful act was committed by any of the officers' prior to the evidence being tossed out the window." 399 F.2d 62, 64 (5th Cir. 1968) (citations omitted). See also Hobson v. United States, 226 F.2d 890, 894 (8th Cir. 1955). (Footnote omitted). Commonwealth v. Jeffries, 454 Pa. 320, 326, 311 A.2d 914, 918 (1973).

See also, Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). In the instant case, the suspects dropped their suitcases and attempted to flee in an automobile. This behavior indicated a clear intent to relinquish both control of the luggage as well as any expectation of maintaining the privacy of its contents. Thus, the only question which remains is the legitimacy of the police conduct prior to the moment the bags were dropped.

A review of the record fully establishes that the officers acted in a responsible and proper manner. They had been informed by two independent sources about the suspicious behavior of three males in the vicinity of a dress shop. These men had run into an adjacent alley when observed by one of the informants. Shortly thereafter, the officers observed three men carrying suitcases descending the steps of this same alleyway. Under these circumstances, the police officers acted appropriately in attempting to make a preliminary investigation as to the identity and activity of these individuals:

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary

[ 469 Pa. Page 555]

    for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." (Citations omitted) Adams v. Williams, 407 U.S. 413, 145-46, 92 S.Ct. 1921, 1923; 32 L.Ed.2d 612 (1972).

See also, Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1975).

We therefore conclude that the police activity prior to the abandonment of the suitcases was lawful. Accordingly, the search of the suitcases was not violative of appellant's Fourth Amendment protections.

Appellant next contends that his oral statement made to police approximately 26 hours after his arrest should have been suppressed because it was the product of an unnecessary delay and thus violative of Pennsylvania Rule of Criminal Procedure 118 (now 130) and our mandate in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1971).

Appellant was arrested at 6:45 P.M. on January 19, 1972, for illegal possession of weapons. At that time he identified himself as Augustus Van Horn. He was taken to the district police station and then transported to the Police Administration Building. Appellant received his Miranda warnings at 10:00 P.M. and was questioned for the next 45 minutes. Immediately thereafter appellant was photographed and fingerprinted whereupon his true identity was ...


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