Lead
OPINION
Dоes a motion to suppress evidence demand proof by the accused of a reasonable expectation of privacy in the area in which the evidence is found before the Commonwealth’s
Appellee was a passenger in a car stopped by police; he was asked to step out of the vehicle, and as he did so, a plastic bag fell from his lap. The driver consented to a search of the car and police seized the bag, which contained cocaine; naturally, all occupants denied knowledge of the bag, but appellee was charged. He moved to suppress, challenging the constitutionality of the detention that led to the search. At the suppression hearing, the prosecutor refused to offer evidence until appellee met the “threshold” stated above. After much debate, the trial court informed the prosecutor it would be obliged to grant the motion if she failed to present any evidence. The prosecutor maintained her position, stating, “If I’m wrong[,] the [a]ppellate courts will tell me that[;] then I will respect that decision.” N.T. Suppression Hearing, 1/4/12, at 13.
The Superior Court noted Pa.R.Crim.P. 581 requires a defendant to plead a suppression motion with sufficient particularity to frame the issue(s). The court noted our decision in Commonwealth v. Millner,
Moreover, the court emphasized that Pennsylvania’s automatic standing rule involves a defendant’s “right to have the merits of his suppression motion adjudicated without a preliminary showing of ownership or possession in the premises or effects seized.” Id. (citation, emphasis, and internal quotation marks omitted). Thus, the court affirmed the suppression order, holding that when a defendant properly presents a suppression motion, “it is not enough for the Commonwealth to simply sit on its hands as it did here, but rather it must meet a burden of production, and bring its evidence before the suppression court, which can then make a fully informed decision.” Id., at 1033.
The Commonwealth sought allowance of appeal; we granted review to consider when the Commonwealth’s burden of production is triggered. The Commonwealth acknоwledges that these are possessory offenses, giving appellee automatic standing, and further concedes it bears both the burden of production and the burden of persuasion. However, the Commonwealth contends that “[a]bsent a showing of a reasonable expectation of privacy in an area searched or items seized, the burden never shifts to the Commonwealth to establish the lawfulness of the police conduct.” Commonwealth’s Brief, at 15 (citations omitted).
The Commonwealth observes Millner at one point characterized the defendant’s burden to show a legitimate privacy interest as a “preliminary” one, a term it then defines as “ ‘coming before and usually forming a necessary prelude to something
Appellee concedes he must establish he had a reasonable expectation of privacy to ultimately succeed but contends it is not a threshold issue that must be established befоre the Commonwealth’s burden of production is triggered. Rather, he argues the “reasonable expectation of privacy” issue is part of the merits analysis conducted after the parties have presented their evidence. Appellee’s Brief, at 9 (noting Millner concluded expectation of privacy must be proven to “prevail” on suppression motion). He suggests Millner and Boulware are distinguishable because in those cases, the Commonwealth actually presented evidence, allowing the suppression court to reach the merits of the privacy expectation inquiry.
Furthеr, appellee maintains that adopting the Commonwealth’s interpretation would, in many cases, conflict with a defendant’s right to remain silent under the Pennsylvania and United States Constitutions. He contests the Commonwealth’s argument that a defendant can establish a reasonable expectation of privacy through the testimony of others, noting this argument, while not inconceivable, would not apply in all scenarios. Appellee suggests the burden on the Commonwealth “is not great or overly burdensome,” and notes the trial court gave the prosecutor repeated notice that he would suppress the evidence if she failed to call any witnesses. Id., at 12-13.
Generally, to have standing to pursue a suppression motion under Pa.R.Crim.P. 581, the defendant’s own constitutional rights must have been infringed. However, it is well settled that a defendant charged with a possessory offense in this Commonwealth has “automatic standing” because “the charge itself alleges an interest sufficient to support a[ ] claim [under Article I, § 8].” Commonwealth v. Sell,
While cursorily similar, standing and privacy interest are different concepts serving different functions. Standing is a
As noted supra, the Commonwealth relies on the Superior Court’s decision in Boulware to support its contention that the defendant’s burden to establish his privacy interest temporally precedes its burden of production. It maintains the result here must be the same as the situation is “exactly like” that in Boulware. Commonwealth’s Brief, at 21. This argument is without merit, and we of course are not bound by precedent from a panel of the Superior Court. In Boulware, the defendant was charged with robbеry and filed a motion to suppress evidence, which included a sweatshirt seized from his home. At the suppression hearing, he presented no evidence, and had no automatic standing as robbery was not a possessory crime. The Commonwealth presented no evidence pertaining to his arrest or seizure of the sweatshirt — accordingly, the trial court suppressed the evidence, and the Superior Court reversed, noting, inter alia, the defendant had not shown standing.
The Commonwealth is correct that the Boulware panel opined that a defendant must prove his privacy interest before the Commonwealth’s burden of production is triggered — for the reasons discussed infra, that hоlding is disapproved. Regardless, the error was harmless, as the defendant was not entitled to reach the merits of his suppression claim because he failed to establish standing. Thus, this case is not “exactly like” or analogous to Boulware. Moreover, Boulware preceded our decision in Millner,
In Millner, the defendant filed a motion to suppress the evidence behind possessory charges involving cocaine and a firearm. The arresting officer, investigating reports of gunfire, saw the defendant place a handgun in a car, and saw an accomplice throw a bag on the ground containing what was determined to be drugs. After finding the drugs, the officers searched the defendant, discovering 41 packets of cocaine. An officer
The Commonwealth argued the defendant failed to demonstrate a reasonable expectation of privacy in the vehicle, but the trial court granted the suppression motion. The Superior Court affirmed, finding the defendant’s testimony credibly showed police had no probable cause or reasonable suspicion to arrest or search him, his cohort, or the vehicle. Millner, at 685. While it conceded the defendant had no reasonable expectation of privacy, the court opined it need not address that argument because the Commonwealth failed to show a possessory connection between the defendant and the firearm.
On appeal, we noted it was undisputed that the gun came from the vehicle and the defendant offered no evidence to establish a reasonable expectation of privacy therein:
[Ijnstead, he stated that the vehicle was not his, but was owned by Kenny Parker. [The defendant] did not claim that he had a right to use or access the vehicle, or to exclude others (such as the policе) from it. Moreover, the Commonwealth’s uncontradicted evidence demonstrated that the vehicle was registered to someone other than [the defendant] (or Parker) and that no key, papers or other identification were found which would have indicated that [the defendant] had any legitimate connection to the vehicle.
Id., at 686. We observed that “a defendant cannot prevail upon a suppression motion unless he demonstrates that the challenged police conduct violated his own, personal privacy interests.” Id., at 692. Accordingly, we found the Superiоr Court erred in deeming it unnecessary to assess whether the defendant had a protected privacy interest. Id., at 693-94.
The Commonwealth contends the Millner Court’s characterization of the burden as “preliminary” signifies it must precede the presentation of other evidence. See id., at 686, 689 (referring to “defendant’s preliminary burden” (citations omitted)). At first blush, without proper context, the word “preliminary” might support the Commonwealth’s position. See id., at 692 (noting that where there was no evidence establishing defendant’s privacy interest, “there was no need for the Commonwealth to establish the lawfulness of the police entry into the vehicle and the seizure of the firearm, and there was no basis upon which the lower courts could properly order its suppression” (citation omitted)); Hawkins, at 268 n. 3 (“[0]ur cases place the burden squarely upon the defendant seeking suppression to establish a legitimate expectation of privacy as an essential element of his case[.]”); Peterson, at 618 (“Without such expectation of privacy, police entry into the store front would have constituted no intrusion, and the exigent circumstances which are posited to justify police action need not be advanced.”).
However, “preliminary” in context refers to analytical order, not a temporal order of proof. Privacy expectations are “preliminary” in the sense that their absence renders all that follows irrelevant. Indeed, in all of these cases, the Commonwealth
Unlike these cases, there was no evidence presented whatsoever — here, neither party called a single witness. Consequently, the court was forced to decide the motion based solely on which party borе the burden of production, the burden of “going forward with the evidence,” which, as the Superior Court noted, are basically synonymous terms. The allocation of that burden is clear — the Commonwealth must prove the constitutional rights of the accused were not violated by the search. The allegation is that unlawful detention led to the search, but if the evidence shows there was no expectation of privacy in the area searched, the prosecution has met its burden and need not go further. The lawfulness of the detention becomes irrelevant, as constitutional error cannot inure to the benefit of the expectation-less accused. To overcome that result, the accused has the burden of showing such an expectation did exist. If the accused does so, the search is again at issue, and the prosecution must prove its constitutionality.
To be sure, under our jurisprudence, the defendant bears the burden of persuasion with respect to his privacy interest. See Commonwealth v. Gordon,
While we reject the Commonwealth’s interpretation of the “preliminary” nature of this burden, it is worth noting that in analyzing the merits of a suppression motion, the trial court may, indeed, treat the
Our decision today is consistent with our reasoning in Sell. There, we refused to follow the United States Supreme Court’s abandonment of the automatic standing doctrine in United States v. Salvucci,
not only because we f[ound] the United States Supreme Court’s analytical distinction between “standing” and “threshold substantive question,” unhelpful to our interpretation of Article I, [S]ection 8’s protection, but also because we believe[d] the United States Supreme Court’s current use of the “legitimate expectation of privacy” concept needlessly detracts from the critical element of unreasonable governmental intrusion.
Id. (internal citation omitted).
In this case, we are not asked to review the propriety of requiring defendants to establish a “legitimate expectation of privacy” before they can succeed on a motion to suppress that has been properly contested by the Commonwealth. Appellee concedes this point and does not ask us to revisit it.
A criminal defendant with standing to pursue a motion to suppress in this Commonwealth has a right to compel the prosecution to prove its evidence was not obtained in violation of his constitutional rights, without having to present evidence of his own. If the Commonwealth shows he lacks a reasonable expectation of privacy, it need do no more, absent proof to the contrary from the accused himself. Where the Commonwealth cannot, or will not, present any evidence at all, the defendant’s motion must be granted, regardless of whether he could ultimately establish a reasonable еxpectation of privacy.
Accordingly, we affirm the ruling of the Superior Court.
Order affirmed; case remanded; jurisdiction relinquished.
Notes
. Though Peterson made clear that the defendant’s privacy interest involved the merits of a suppression claim, the Superior Court did not find this fact significant to the allocation of burdens and the presentation of evidence until our decision in Millner.
. The court also reasoned, " ‘But for the illegal detention and search of [the defendant,] the police would never have sеarched the vehicle at all. The search of the vehicle was a mere extension of the already illegal search.’ ” Id.
. In fact, this Court has characterized the situation presently before us as "virtually inconceivable.” Commonwealth ex rel. Butler v. Rundle,
. For example, in Millner, given the Commonwealth's uncontradicted evidence showing the defendant had no expectation of privacy in the vehicle, we concluded the defendant could not prevail on the merits of his motion and, as a result, "there was no need for the Commonwealth to establish the lawfulness of the police [conduct,]” Millner, at 692 (citation omitted), i.e., it did not matter whether the Commonwealth had ultimately proven that its evidence was obtained through legal means.
. This is a judicially created exception to the general rule that the burden of persuasion is on the Commonwealth, and appellee does not argue for its abandonment.
. Although the defendant will typically present his own evidence to satisfy this burden, he is not required to do so. Indeed, he may succeed without presenting any evidence at all. See 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at 50 (5th ed.2012) (noting “even if the burden of proof is on one party, it may happen that the burden is actually met in a partiсular case by evidence given by the other party”).
. A concurrence in Commonwealth v. Peterson,
. See Ronald J. Allen, Burdens of Proof, Uncertainty, and Ambiguity in Modem Legal Discourse, 17 Harv. J.L. & Pub. Pol'y 627, 640 (1994) ("Assume that party A has the burden of production and persuasion on some fact X, and that neither party has any evidence relevant to that fact. If the burden of persuasion on fact X is shifted to party B, party A still has the burden of production. But party A has no evidence of X. Consequently, party A cannot meet its burden of production and will lose, even though party B could not possibly meet its burden of persuasion.").
Concurrence Opinion
concurring.
I agree with the majority’s conclusion that the burden of production at a suppression hearing is on the Commonwealth (as premised on Rule of Criminal Procedure 581(H)), and that the Commonwealth failed to carry its burden in this case. I write separately, however, to express my reservations about some of the majority’s rationale, in particular, the manner in which the Court expresses the burden imposed upon defendants concerning privacy expectations.
Initially, I have difficulty to the extent that the majority portrays the inquiries into a defendant’s standing to challenge a search and into the defendant’s reasonable expectations of privacy as substantively distinct. See Majority Opinion, at 364,
Additionally, while I support the majority’s conclusion that the burden of production is with the Commonwealth, which resolves this case, I am more circumspect about the comments referencing the defendant’s burden to demonstrate privacy expectations. In this regard, I would note that courts are often imprecise when addressing burdens of proof. See generally John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in Criminal Law, 88 Yale L.J. 1325, 1329 n. 8 (1979) (commenting that the term “burdens of proof’ is sometimes used indiscriminately to refer either to burdens of production or persuasion and that, sometimes, unfortunately, burdens are misaligned on account of such loose usage). Thus, this Court’s previous depictions of a burden upon defendants to “prove” a legitimate expectation of privacy should not necessarily be regarded as a fully realized elaboration of the nature and extent of that burden, particularly in the absence of a developed explanation. Certainly, it would be more consistent with this Court’s admonition that the burden of persuasion rests on the Commonwealth, In re L.J.,
. As the majority observes, it may be the case that the Commonwealth’s evidence demonstrates a defendant’s privacy interest, for example, where an officer testifies that he removed contraband from the defendant’s person. See Majority Opinion, at 369 n. 6,
. I would also note that there is a good argument to be made that a threshold focus, before assessing hearing burdens, should be on the sufficiency of the suppression motion in the first instance. See generally William E. Ringel, Searches and Seizures Arrests and Confessions § 20:12 (2d ed.2014) (discussing hearing burdens allocated ‘‘[i]f the moving papers provide sufficient information to require a suppression hearing”). Additionally, most jurisdictions distinguish between warrant-based searches and warrantless ones, in terms of burden allocation. See id. ("A defendant generally has the burden of showing a constitutional infirmity if a search or seizure was carried out pursuant to a warrant, while the burden of proof is on the prosecution if the police acted without a warrant.”). It is an unfortunate consequence of the nature of the adjudicatory process that the Court is most often unable to assess regimes with interrelated facets in a comprehensive fashion, toward the end of enhancing fairness and efficiency. To the degree that burdens of proof are an appropriate subject of rulemaking, perhaps that forum might offer a better change for a broader assessment of available options.