March 6, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
ZONTE L. REDMOND, Appellant
Appeal from the Judgment of Sentence Entered April 18, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0011387-2008.
BEFORE: SHOGAN, OTT and PLATT [*] , JJ.
Appellant, Zonte L. Redmond, appeals from the judgment of sentence entered on April 18, 2012, and challenges the ruling denying his motion to suppress. We affirm.
The suppression court set forth the relevant facts of this case as follows:
On October 5, 2007, Sergeant Robert Fril, badge number 578, received information from Drug Enforcement Administration ("DEA") agents pertaining to a forecasted narcotics transaction. N.T. 6/21/2011 at 7-8. Sergeant Fril was informed that an individual named Zonte Redmond was expected to sell 4.5 ounces of cocaine at 73rd and Elmwood Street next to a bowling alley. Id. at 8. Additionally, Mr. Redmond would be operating a gray Ford Explorer. Id. The DEA agents received the specific information from an individual in custody who was cooperating. Id.
Based upon the information received, Sergeant Fril, along with fellow officers, traveled to 7300 Elmwood Street at approximately 12:30 p.m. Id. at 9. Upon arrival Sergeant Fril observed a gray Ford Explorer parked on Elmwood Street on the side of a bowling alley. Id. Police Officer Wade immediately identified the driver as Zonte Redmond, with whom he was familiar. N.T. 6/21/2011 at 15. Sergeant Fril then maneuvered his vehicle in front of the Appellant's Ford Explorer. Id. at 9. Sergeant Fril and Officer Wade exited their vehicle and identified themselves to the Appellant as they approached him. Id. The Appellant then executed a U-Turn and drove across oncoming traffic, onto a sidewalk at a high rate of speed. Id. 11. Sergeant Fril and Officer Wade pursued the Appellant by vehicle. Id. at 12. Sergeant Fril received information from back-up officers that the Appellant discarded a white object from his vehicle into a field. Id. at 12. Sergeant Fril traveled to the described area and recovered a clear plastic bag containing cocaine. N.T. 6/21/2011 at 12.
Trial Court Opinion, 3/19/13, at 1-2. Appellant evaded the police on that date, but was subsequently arrested on a warrant on October 23, 2007 at his home in Sharon Hill, Pennsylvania.
Prior to trial, Appellant filed a motion to suppress the physical evidence thrown from the vehicle. Following a hearing, Appellant's motion to suppress was denied on June 21, 2011. Appellant proceeded to trial on June 22, 2011, during which a jury deadlock resulted in the declaration of a mistrial on June 23, 2011. On March 29, 2012, following a jury retrial, Appellant was found guilty of possession with intent to deliver a controlled substance and fleeing or attempting to elude officers. On April 18, 2012, Appellant was sentenced to seven and one-half to fifteen years of incarceration. Appellant filed a post-sentence motion that was denied on June 22, 2012. On July 23, 2012, Appellant timely filed an appeal. Appellant filed a statement pursuant to Pa.R.A.P. 1925(b), and the trial court filed a Pa.R.A.P. 1925(a) opinion.
Appellant presents the following issue for our review:
I. Did the lower court err when it found that there was an "investigative detention" based on the facts presented instead of finding that there was an arrest which required probable cause thus making the discarding of the evidence a result of coerced abandonment?
Appellant's Brief at 3.
Appellant argues that the suppression court wrongfully found that the stop of Appellant was an investigative detention and not an arrest. Appellant's Brief at 12. Appellant maintains that the police actions constituted an arrest or seizure and, thus, required probable cause. Id. at 13. It is Appellant's position that the information upon which police acted was equivalent to an anonymous tip and, thus, did not provide officers with reasonable suspicion to stop Appellant. Id. at 19. When the officers arrived and observed the vehicle, there was no other indication that criminal activity was afoot. Id. Therefore, Appellant asserts, police had no basis to conduct an investigatory detention and lacked probable cause to arrest. Id. Appellant further argues that since the police did not have probable cause when they arrested him, Appellant's "throwing of the drugs" was a "coerced abandonment." Id. at 22.
We begin by setting forth our standard and scope of review over the denial of a motion to suppress. This Court is to determine:
whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Wormley, 949 A.2d 946, 948 (Pa.Super. 2008) (quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002) (en banc)).
At the outset, we note that there are three distinct levels of interaction between law enforcement and the general public. The first level is the mere encounter, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or respond. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa.Super. 2006). The second level is the investigative detention, which must be supported by reasonable suspicion. Id. Finally, the third level is an arrest or custodial detention, which must be supported by probable cause. Id.
In defining "reasonable suspicion, " this Court has explained:
Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate.
Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate.
Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa.Super. 2012).
In Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000), our Supreme Court explained investigative detentions as follows:
An investigatory stop, which subjects a suspect to a stop and a period of detention but does not involve such coercive conditions as to constitute an arrest, requires a reasonable suspicion that criminal activity is afoot. Reasonable suspicion depends upon both the content of the information possessed by the police and its degree of reliability. Thus, quantity and quality of information are considered when assessing the totality of the circumstances. If information has a low degree of reliability, then more information is required to establish reasonable suspicion.
Id. at 811 (internal citations omitted).
This Court has recently addressed the role of anonymous tips in providing a basis for an investigatory stop. In Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997), a police officer responded to a radio report stating that a man in a green jacket was carrying a gun at a particular location. No additional details were provided. When the officer arrived at the identified location, he saw a number of people including the defendant who was wearing a green jacket. Based solely upon the anonymous call, the officer stopped and searched the defendant. Relying upon Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), a factually similar case, the Court held in Jackson that the anonymous tip did not justify a stop and frisk of the defendant. Jackson, at 494, 698 A.2d at 576. In Hawkins, a plurality of the Court explained that when police receive an anonymous call alleging that a person of a particular description is carrying a gun at a particular location, and the police broadcast that information to patrol cars, neither the dispatcher nor the officers in their cars know whether the information is reliable. Hawkins, 547 Pa. at 656, 692 A.2d at 1070. The Court observed that an anonymous tip may be nothing more than a mere prank call. Id. At the same time, it may be based on no more than the caller's unparticularized hunch. Jackson, 548 Pa. at 490, 698 A.2d at 574; see also White, 496 U.S. at 329, 110 S.Ct. at 2415 (anonymous tips provide "virtually nothing from which one might conclude that the caller is either honest, or his information reliable"). Because of its unreliability, an anonymous radio call alone is insufficient to establish a reasonable suspicion of criminal activity. Jackson, supra; Hawkins, supra.
Id. at 811-812. The Court in Jackson further explained that "a Terry stop may be made on the basis of an anonymous tip, provided the tip is sufficiently corroborated by independent police work to give rise to a reasonable belief that the tip was correct." Jackson, 698 A.2d at 574.
In the case sub judice, DEA agents contacted Philadelphia police officers seeking assistance with an arranged narcotics purchase. N.T. Suppression Hearing, 6/21/11, at 6-7. The police were advised that the DEA agents had in custody an individual who was cooperating with the authorities and had arranged the purchase. Id. at 8.
DEA agents advised officers that a purchase of four and one-half ounces of cocaine from Appellant had been arranged. N.T. Suppression Hearing, 6/21/11, at 8. The officers were told that Appellant would be in a gray Ford Explorer next to a bowling alley at 73rd and Elmwood Street in the 12th District. Id.
The police officers proceeded to the area of 7300 Elmwood Street. N.T. Suppression Hearing, 6/21/11, at 8-9. Upon arriving, officers observed a gray Explorer parked on Elmwood Street on the side of the bowling alley. Id. at 9. Officer Wade, who knew Appellant from previous encounters, identified Appellant as the driver of the Explorer. Id. at 15. When officers approached, Appellant fled in his vehicle. Id. at 11.
We first note that it is questionable whether officers, in fact, effectuated a stop of Appellant. As mentioned, when officers approached Appellant, he fled. The suppression hearing transcript reflects that officers simply identified themselves as they approached. N.T. Suppression Hearing, at 9. While one of the officers testified at the suppression hearing that their original intent was to physically "pin in" Appellant's vehicle before approaching Appellant, officers were unable to do so. Id. at 9.
However, we need not decide whether this was simply a mere encounter versus an investigative stop because, as explained below, officers had the requisite reasonable suspicion to conduct an investigative stop. Here, the DEA made arrangements for a drug purchase and requested assistance from the Philadelphia police to execute the purchase. The officers received the information directly from DEA agents. The information providing the basis for the arranged purchase was provided to DEA agents by a known informant in DEA custody. Thus, DEA agents had reasonable suspicion to perform an investigative stop of Appellant. In re J.E., 907 A.2d 1114, 1120 (Pa.Super. 2006) ("A known informant can form the basis for reasonable suspicion as the police would know the identity of the person providing the tip and the basis of the knowledge.") Additionally, because DEA agents had reasonable suspicion, the police had the requisite reasonable suspicion to make the investigative stop. Commonwealth v. Washington, 63 A.3d 797, 802 (Pa.Super. 2013) (Even where the officer who performs the stop does not have reasonable suspicion, the stop is nonetheless valid if another officer requesting the stop has reasonable suspicion). Accordingly, we cannot agree with Appellant's argument that the facts of this case are analogous to those in cases where officers receive an anonymous tip that alone is insufficient to establish reasonable suspicion.
Moreover, there were significant corroborating factors that supported a determination of reasonable suspicion on the officers' part, thus justifying the officers' attempted investigational detention of Appellant. The officers were given specific information regarding the individual with whom the purchase was arranged, the pre-arranged location where the individual would be waiting to execute the sale, and the vehicle in which the individual would be travelling. Officers proceeded to the pre-identified location where they observed Appellant in the afore-described vehicle.
The totality of these circumstances wholly supports the suppression court's conclusion that the officers had a reasonable suspicion that Appellant was engaged in criminal activity. Thus, the initial attempted stop was lawful.
After Appellant fled, officers pursued Appellant. While officers had reasonable suspicion initially to stop Appellant, Appellant's unprovoked flight served as another factor supporting the officers' reasonable suspicion that Appellant was involved in criminal activity. See In re D.M., 781 A.2d 1161, 1165 (Pa. 2001). Thus, police possessed the requisite reasonable suspicion to pursue Appellant. Id. at 1164 (the pursuit of an individual by police officers amounts to a seizure; thus, police must possess probable cause or reasonable suspicion to pursue a fleeing suspect).
While fleeing from officers, Appellant threw a white object out of the vehicle. N.T., 6/21/14, at 12. This object was subsequently recovered by officers and identified as a bag containing a large amount of cocaine. Id. at 12-13.
"[C]ontraband discarded by a person fleeing a police officer are the fruits of an illegal 'seizure' where the police officer possessed neither 'probable cause' to arrest the individual nor reasonable suspicion to stop the individual and conduct a … frisk." Commonwealth v. Albert, 767 A.2d 549, 552 (Pa.Super. 2001) (quoting Commonwealth v. Matos, 672 A.2d 769, 770 (Pa. 1996)). Conversely, if the police possess reasonable suspicion at the time they observe property being discarded by a suspect during the suspect's flight from them, then the police may properly recover that property. Commonwealth v. Cook, 735 A.2d 673, 677-678 (Pa. 1999)
In the case before us, the contraband was not the fruit of an illegal seizure. As noted, the officers possessed reasonable suspicion to conduct the attempted initial investigative stop and subsequent pursuit of Appellant. As such, the contraband discarded by Appellant was voluntarily abandoned.
Additionally, after Appellant fled from the officers and voluntarily abandoned the bag of cocaine, which the officers recovered, the officers then had the requisite probable cause to arrest Appellant. This probable cause served as the basis for the arrest warrant executed approximately eighteen days later at Appellant's home. Appellant's claim that he was "arrested" when officers approached his vehicle on the date of the pre-arranged purchase at 73rd and Elmwood Streets lacks arguable merit.
In conclusion, officers had the requisite reasonable suspicion to attempt to stop Appellant and pursue him when he fled. The trial court did not err in concluding that the officers' attempted stop of Appellant was an investigative detention and not an arrest. The cocaine thrown from the vehicle and later recovered by officers was not illegally seized. Accordingly, the suppression court committed no error in denying Appellant's suppression motion. Judgment of sentence affirmed. Jurisdiction relinquished.