Vol. LVII Allentown, PA Friday, August 26, 2016 No. 9

60 Pages·2016·6.61 MB·English

Vol. LVII Allentown, PA Friday, August 26, 2016 No. 9
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THE COURT
The Hon. Edward D. Reibman, President Judge
The Hon. Carol K. McGinley, Judge
The Hon. Robert L. Steinberg, Judge
The Hon. J. Brian Johnson, Judge
The Hon. Kelly L. Banach, Judge
The Hon. James T. Anthony, Judge
The Hon. Maria L. Dantos, Judge
The Hon. Michele A. Varricchio, Judge
The Hon. Douglas G. Reichley, Judge
The Hon. Daniel K. McCarthy, Judge
The Hon. Alan M. Black, Senior Judge
LEHIGH LAW JOURNAL
(USPS 309560)
Owned and Published by
THE BAR ASSOCIATION OF LEHIGH COUNTY
1114 Walnut Street, Allentown, PA 18102
www.lehighbar.org
HON. WILLIAM H. PLATT, President
PATRICK J. REILLY, President-Elect
MICHELLE M. FORSELL, Vice President
JAMES J. KOzUCH, Secretary
SARAH M. JOLLY, Treasurer
SUSAN G. MAURER, Historian
THOMAS F. TRAUD, JR., Law Journal Committee
RAY BRIDGEMAN, Executive Director
GRAIG M. SCHULTz, Case Editor
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boards, links, and much more. “Like” us at
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7
86 In Re: S.B., a Juvenile
IN RE: S.B., a juvENILE
Motion to Suppress—Receiving Stolen Property—Possession of a
Firearm by a Minor—Possession of Drug Paraphernalia—
Forced or Coerced Abandonment.
The court will deny a defendant’s motion to suppress evidence when the defendant’s
decision to abandon the evidence was not unconstitutionally forced or coerced by the police.
In such situations, the act of abandoning the evidence will relinquish the defendant’s ex-
pectation of privacy with respect to the items which are abandoned.
In the Court of Common Pleas of Lehigh County, Pennsyl-
vania—Criminal Division. No. 39-jv-539-2016. In Re: S.B., a ju-
venile.
Christine Murphy, esquire, on behalf of the Commonwealth.
AndreA OlsOvsky, esquire, on behalf of the juvenile.
steinberg, J., august 9, 2016. The juvenile, Sakou Byrd, is
charged with Receiving Stolen Property (2 counts), Possession of
a Firearm by a Minor, and Possession of Drug Paraphernalia.
Prior to the adjudication hearing, a suppression hearing was held
alleging that the recovery of a stolen firearm and other stolen items
falls within the ambit of a forced or coerced abandonment by un-
lawful police action, and is subject to suppression. Following the
suppression hearing, the Motion to Suppress was denied on august
4, 2016. This opinion supports the basis for that denial.
FINDINGS OF FaCT
1. Sakou Byrd, a juvenile, is the subject of these proceedings.
He was born on December 30, 1999, and at the time of the incident
was 16 years of age.
2. On july 27, 2016, at approximately 4:08 a.M., Officer
Zulic investigated a report of two people breaking into an Rv.
3. Officer Zulic proceeded in his marked patrol vehicle to
search the surrounding area for any individuals who may have been
involved or had relevant information pertaining to the offense. He
drove to the parking lot of the Daisy Hill convenience store, which
was approximately 1/4 to 1/2 mile away from the report of the
break-in, and observed a light-skinned black male sitting on a bike,
with no shirt on and a backpack on his back.
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Lehigh 7-17 op
In Re: S.B., a Juvenile 87
4. as the officer pulled into the lot in an attempt to speak
with the male, the male took off on the bike at a high rate of speed
away from the officer.
5. Officer Zulic proceeded to follow this male south on union
Street. The male took a path through a wooded area that the of-
ficer could not follow in his patrol vehicle. at this point, the officer
activated his emergency lights and yelled to the juvenile to “Stop.”
6. Officer Zulic followed on foot until he lost sight of him in
a wooded area. He testified that at the time he lost sight of the
male, he was still wearing the backpack.
7. Officer Zulic returned to his patrol vehicle and drove back
up to the Daisy Hill, where his attention was drawn to the store
clerk, who was standing outside the convenience store. Officer
Zulic testified that the clerk was looking at him, then looking back
in the store. She did this a few times, and when Officer Zulic ap-
proached the clerk, she explained to the officer that she saw the
male he was chasing go back into the store.
8. Officer Zulic, along with two officers from Fountain Hill
Police Department, searched the store and located the male in a
storage closet. He was found facing the wall, with the hood of a
sweatshirt over his head and covering his face. Officer Zulic posi-
tively identified this male, the juvenile, as the suspect he had been
chasing.
9. In the sink in the storage closet, Officer Zulic found a
pocket knife, a black bandana, and a spent .380 caliber bullet cas-
ing. The backpack was not in the storage closet. The juvenile
stated that he had done nothing wrong, and that he was not wear-
ing a backpack when the pursuit began.
10. Officer Zulic proceeded to search the nearby area for the
backpack. He returned to the wooded area where he last saw the
juvenile, and after a short time was able to locate the backpack.
The backpack was found to contain knives, electronics, change,
drugs and drug paraphernalia, a Coach purse, and a loaded .380
Smith and Wesson Bodyguard firearm.
11. The Coach purse and the Smith and Wesson handgun
were later determined to be stolen.
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Lehigh 7-17 op
88 In Re: S.B., a Juvenile
12. The bullet located in the sink of the closet was the same
caliber and brand as the rounds that were loaded into the handgun.
DISCuSSION aND CONCLuSIONS OF LaW
It has long been held that in order to have standing to contest
a search and seizure, the items may not have been voluntarily
abandoned. Commonwealth v. Wilson, 2014 WL 10936624, at *3
(Pa. Super. May 28, 2014); Commonwealth v. Byrd, 987 a.2d 786,
790 (Pa. Super. 2009) (quoting Commonwealth v. Tillman, 423 Pa.
Superior Ct. 343, 621 a.2d 148, 150 (1993)). See also, Common-
wealth v. Pizarro, 723 a.2d 675, 679 (Pa. Super. 1998) (“a criminal
defendant has no privacy expectation in property that he ha[d]
voluntarily abandoned or relinquished.”). Before this juvenile can
challenge the seizure of physical evidence, he must demonstrate
that he had both a possessory interest in the evidence and a le-
gally cognizable expectation of privacy in the area from which the
evidence was seized. See Commonwealth v. Clark, 746 a.2d 1128,
1133 (Pa. Super. 2000). The Supreme Court, in Commonwealth
v. Shoatz, 469 Pa. 545, 366 a.2d 1216 (1976) delineated the test
for determining whether an abandonment has occurred:
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.
Id. at 553, 366 a.2d at 1220 (citations omitted).
“In other words, ‘[a]bandonment can be established where
an individual’s surrender of possession of property constitutes such
relinquishment of interest in the property that a reasonable expec-
tation of privacy may no longer be asserted.’ ” Byrd, supra at 791
(citation omitted). While police may normally gather and use
abandoned property for evidentiary purposes, such property may
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Lehigh 7-17 op