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Commonwealth v. Banks

Superior Court of Pennsylvania

June 12, 2017


         Appeal from the Order Entered May 9, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0002158-2015

          BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E. [*]


          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 physical 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 Probation and Parole Agent Kriger[1] received an anonymous tip that Banks was violating his parole. Based on this allegation, Agent Kriger and Agent Tracy Gross[2] (together, "the Agents") went to Banks' parole-approved residence and knocked 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 asked 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 firearm, which was hidden behind Banks' bedroom door, and the synthetic marijuana, which was in a bag in the living room. The Agents then called the police, who obtained a search warrant and seized the firearm, the synthetic marijuana, seven cell phones, a digital scale, and another bag containing synthetic marijuana.

         Banks was arrested and charged with possession with intent to manufacture or deliver a controlled substance ("PWID"), possession of a controlled substance, possession 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 the 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 knock 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 evidence - 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 ...

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