Commonwealth v. Arnold

reasons, foregoing A.2d at 489. For the satisfy

we conclude that failed to Withrow necessary

the threshold test to overcome qualified privilege.

the Commonwealth’s Accordingly,

See id. the trial court erred ordering identity. disclosure of the CI’s id. reasons, foregoing For the we re- directing

verse the trial court’s order dis-

closure and remand matter for further

proceedings Opinion. consistent with this

¶ 13 Order RE- REVERSED. Case

MANDED for farther proceedings consis-

tent with this RE- Opinion. Jurisdiction

LINQUISHED. Pennsylvania,

COMMONWEALTH of

Appellee ARNOLD, Appellant.

Lee

Superior Pennsylvania. Court of

Argued Nov. Aug.

Filed Jr., Palermo, Carlisle,

Michael for O. appellant. Stern, Atty.,

Daniel Asst. Dist. N. W. Bloomfield, Com., appellee. for the are as of this case ELLIOTT, P.J., The relevant facts BEFORE: FORD morning hours on early In the JOHNSON, follows. and JJ. LALLY-GREEN 28, 2005, received a noise the August building at apartment complaint from an JOHNSON, BY J.: OPINION Borough, Newport Market Street case, 1 In this we consider whether County. of a downstairs Perry Residents of a may justify the search police officers coming complained about noise apartment upon apartment casual visitor to based troop- apartment. Two upstairs from an individual searched the claim that the ers, Trooper Fultz and Kline with Trooper lacked reasonable Police, responded Pennsylvania State Here, officers, in the speaking After with complaint. complaint, en- solely investigate residents, a noise Trooper Fultz went downstairs a warrant and apartment separate tered the without upstairs approached and apart- probable cause and door from the downstairs and without distinct on the door Trooper Fultz knocked apartment, in the ment. circumstances. While no re- rang the doorbell but received Lee Appellant, observed the the officers unlocked, finding the door sponse. Arnold, another marijuana pipe pass it, opened Fultz entered Trooper jus- seeks to person. The Commonwealth of a and went to the bottom apartment, of Arnold’s tify subsequent search Fultz testified flight Trooper stairs. lack of a rea- person solely upon based in a common that he was that he believed in the sonable building at apartment area of the contends apartment. The Commonwealth Fultz then saw a female Trooper point. reason, it would not need to that for this steps, po- see the halfway come down officers’ warrantless support lice, steps yelling the up and run back exigent circumstances. Trooper Fultz followed police are here. ¶2 circum- Following a review of the reaching steps upon up the female intrusion, at the moment of the stances Arnold steps, he observed top law, prevailing case we applying marijuana to David Amtower. pass pipe Ar- reliance on find the Commonwealth’s and Amtow- arrested Arnold troopers persons subsequent nold’s A search of their er. offi- men had small amounts apartment misplaced. that both revealed marijuana. apartment not but cers did search to find person searched Arnold’s instead charged Arnold 114The Commonwealth officers did the contraband. As possession of a complaint with by criminal warrant, failed to demonstrate not have a marijuana possession amount of small situation, and did exigency See 35 P.S. drug paraphernalia. necessary to ar- form the cause 113(a)(31)(i), (respectively). §§ 780— Arnold, entry into we find the officers’ rest 30, 2005, a mo- Arnold filed November On subsequent search apartment evidence, and the arguing suppress tion to Hence, we con- illegal. of Arnold to be entered the the officers denying exi- trial court erred articulable clude that the and without a warrant court, drug evi- The trial motion to circumstances. gent Arnold’s P.J., de- Joseph Rehkamp, reverse the order C. Accordingly, dence. Honorable cir- motion, finding the case nied the denying and remand faith good and the officers’ consis- cumstances proceedings court for to the trial in a common area they were belief that Opinion. tent with when observed the pipe prisonment aggravated range justified the intrusion. February On without placing the reasons there- 2006, President Judge Rehkamp presided immediately fore the rec- [sic] over a bench trial guilty and found Arnold ord: of one count possession of a small 1. where the prior defendant had a marijuana amount of and one count of (0) record score of zero and rea- possession drug paraphernalia. Imme- sons for ag- the sentence thereafter, diately President Judge Reh- gravated range not placed were kamp sentenced forty Arnold to hours to upon the record? thirty days’ incarceration possession for 2. where defendant was sentenced small amount year and one accordance 41st Judicial

probation along with a fine of for $250.00 District De sentencing policy facto possession drug paraphernalia. giving all those convicted of sentences were to be concurrently. served Possession of a Small Amount of 23, 2006, February On Arnold a post- filed Marijuana forty-eight hours motion, sentence arguing the trial court of incarceration? abused its discretion imposed when it Brief for Appellant at 8 (formatting edit- aggravated sentence range because ed). it did not specifically state reasons on

the record for such a sentence. The trial his first ap on court denied this motion on March peal, Arnold contends that trial court erred in failing suppress the fruits of

¶ 5 Arnold now appeals, raising illegal the fol- search. Brief for Appellant at lowing questions for our review: reviewing Our standard when a trial

A. Did court’s denial of a Suppression motion to Court err in

denying well-established: pretrial the omnibus mo- tion to suppress all evidence seized In reviewing the denial of a motion to appellant from and the residence in suppress, responsibility our is to deter- violation of rights under mine whether the supports record Constitutions of the Commonwealth suppression findings court’s factual Pennsylvania and the United legitimacy of the inferences and le- States of America: gal conclusions drawn from those find- . 1. where there was no ings. If court held for cause to enter the residence with- prosecution, we consider out a warrant and where no exi- prosecution’s evidence of the witnesses gent circumstances existed? and so much of the evidence for the as, fairly defense read in the context of 2. where the presented officer con- whole, the record as a remains uncontra- tradictory testimony as to the ba- findings dicted. When the factual of the entry sis of his into the residence suppression court supported by are and relied upon “good faith” evidence, the appellate court re- exception to warrant re- [the] verse if there legal is an error quirement excep- where no such conclusions drawn from those factual tion Pennsylva- exists under the findings. nia Constitution? Cornelius,

B. Did the sentencing Court err in sen- Commonwealth v. (citation omitted). tencing Defendant to a term of im- (Pa.Super.2004) felon, fleeing of a a likelihood argues drug pursuit 7 Arnold evi- suppressed destroyed dence should be because be that evidence will entry warrant, danger officers’ time to or take obtain illegal as it was done without a war- or persons inside out- other rant and circumstances. Nevertheless, police dwelling. side Appellant Brief for at 17. Arnold con- heavy attempting when bear cludes that because the was unlaw- might urgent demonstrate an need ful, illegal the fruits of the search must be or arrests. justify warrantless searches wealth suppressed. disposition (1994), study, Roland, Court’s and Brief this case agree this for decision Court’s decision is controlled Appellant and find that Common- at 17-18. ing that Where factors should be minor one, balancing exigent offense circumstances ^[*] weighted against find- being investigated * * * exist. foregoing is a Demshock, 854 A.2d 553 warrant- It is difficult to conceive of a (Pa.Super.2004). that not less home arrest would be the Fourth unreasonable under

¶ Pennsylvania, 8 The Court of underlying the of- Amendment when Roland, principles forth and set the extremely fense is minor. expressed in the considerations United Pennsylvania States and Constitutions (internal Roland, 270-71 cita- 637 A.2d at the governing warrantless searches of omitted, empha- quotation and marks tions home: added). sis home, private In a and searches seizures Roland, received a police 9 In officers presumptively without a warrant are un- perpe- indicating call assault had been probable Absent cause reasonable^] against nineteen-year-old trated a male. circumstances, entry the exigent Roland, at The victim See prohibited home a without warrant he had assaulted police told the been under the Fourth Amendment. In de- See party while at a at Roland’s home. id. circum- termining whether was under- The victim indicated there exist, a number of factors are to stances age marijuana use at drinking as well as (1) the gravity be the considered[:] Based party. See id. infor- the offense, (2) suspect the is rea- whether mation, police proceeded the to Roland’s (3) armed, sonably to wheth- believed be the See home and knocked on door. id. beyond above a clear er there is police opened,' the was the When door (4) cause, showing whether open minors next to cans observed several strong there is reason to believe that the Believing underage See beer. id. suspect premises being is within the en- drinking taking place, police con- was tered, (5) is a whether there likelihood See ducted a search of home. id. swiftly suspect escape will not opened and un- They found numerous (6) entry was apprehended, whether beer, opened bag cans of a small of mari- peacéably, made the time of the seeds, juana, marijuana contain- pipe and a i.e., night. made entry, whether it was police The marijuana residue. See id. ing against These are to factors be balanced admit- subsequently arrested Roland who determining one whether another alcohol. See providing minors with justified. ted was warrantless intrusion Roland a motion to into id. filed factors also be taken Other by police; however the account, as there is hot evidence found such whether denied id. See id. at entering trial court this motion. See denial, holding affirmed concluded that Our Court This since the Court offense, removal of cans potential underage the beer was drinking, observed justi- police get one, before the a warrant police should ob- minor have fied the without a See id. warrant. entering prior warrant tained search at 271-72. Our reversed Court Fur- See id. at 557-58. residence. Court, had no concluding ther, concluded that the Com- this Court entering circumstances war- proffered reason for the monwealth’s home warrant. at 271. See id. entry, prevent rantless the need to drinking stated that underage evidence, sup- drug destruction of was not violence, grave “is crime such as not ported by the record as the Common- might justified entry” have warrantless provide justifica- wealth cannot retroactive proper and that action illegal entry. tions for an at 557. id. been prior would have to obtain a warrant drugs only found the after searching Roland’s home. Id. illegally entered the Demshock, Similarly, therefore, presence drugs offi- patrolling parking cers were lots of part reasoning entering of their apartment buildings (“It due increase of to an apartment. See id. is well estab- theft and automobile vandalism. See 854 cannot police rely upon lished that A.2d During patrol, at 554. Detective justify to en- circumstances warrantless Hopple walking apart- was between two try exigency the their where derives from buildings observed, ment when through he actions.”). own window, to individuals he believed be Demshock, po- 11 In Roland and both consuming teens beer. Detective See id. intru- lice officers conducted warrantless Hopple other proceeded and officers to the occupants in a upon sions home whose first front door and knocked while on the door police with the after the encounter was peephole. the In covering See re- id. front the home had in opened door of been the sponse knocking, to an occupant asked response a knock. these to each of Hop- “who was there” to which Detective cases, marijuana police the observed ple “[h]ey man, replied it is me.” Id. (Demshock) (Ro- and underage drinking (citation omitted). The person opened the land) However, upon entering. officers, seeing door and after police the that the found Courts determined evidence away backed the id. The from door. See suppressed in should as the the homes be doorway proceeded through officers the police any exigent not cite circum- could marijuana plain sight. observed in allowing the stances the initial See id. at 554-55. The told officers then Roland, at 271-72 home. See marijua- teenagers anyone the that if (finding underage teens could have the na, they put should it on the See id. table. consumption apprehended illegal been for marijua- at Demshock a bag 555. threw to they prior had left the home alcohol police na onto the table. See id. The warrant); Demshock, A.2d obtaining a charged posses- him and him arrested (finding entry by at the officers drinking. underage sion of solely at- into home based was sup- Demshock to See id. filed a motion underage drinking). teens for tempt to cite court press the evidence which the trial in not 12 The facts the case at bar do denied. id. This Court reversed the See summary court, gravity the finding that did not reach even police trial any exigent when Roland and Demshock. articulate circumstances offenses found cases, police entered While those observing- underage premises after apartment, the fact that were case,

drinking, present premises prohibit not illegally on the does independent reason to on the had no be Appellee and seizure. Brief for search report a sum premises other than Commonwealth, princi- relying at 5-6. mary offense of a noise violation. See pally ruling in upon our Court’s Roland, (finding 637 A.2d at 271 “[a]n Commonwealth to be considered when important factor (2005), argues that Arnold determining any exigency exists whether must had a reasonable prove first he of gravity underlying is the fense[.]”). Fultz did not observe Trooper to the burden shifts searched before any illegal activity prior to entering prove to evidence apartment. Following reasoning found properly Appellee seized. Brief for at Demshock, summary in Roland and reasoning agree 6. with the While violation, of a offense noise facts of applies Millner as it activity, illegal not other would case, factually inapposite it we hold that to enter an apartment allow officers at the case bar. warrant or cause absent Since officers exigent circumstances. ¶ 14 a defendant who Millner involved not have did a warrant suppress weapon found in attempted at circumstances articulate plain in a vehicle. See 888 view they the entry, legally time of were not There, officers were on rou- to be Fur entitled inside patrol tine gunshots. when heard thermore, the extent trial court dispatch hearing id. at from justified found that the intrusion was gunshots reported had been there upon good officers’ faith belief based the area, police their the came two men they entering were a common area of vehicle, a one of whom standing outside apartment building, the we conclude that police holding gun. a id. As the See finding Our Supreme is in error. men, they approached the two saw one specifically ruled is Court has that there bag man gun open the the exclusionary faith to the good exception no The of the vehicle. id. offi- backseat See See, Ed e.g., rule. cers and saw Millner identified themselves munds, A.2d 526 Pa. compan- the his close the trunk of car and “good that a ex (concluding faith” the plastic bag ground. ion clear to throw exclusionary the rule in ception to Penn police See The officers found the id. sylvania privacy guar would frustrate the drugs. See plastic bag contained id. in Article Section 8 of antees embodied Constitution). They down and found Pennsylvania patted then Millner As after the offi police packets search occurred crack id. After cocaine. See unlawfully apartment cers entered arrest, under placing Millner cir probable exigent cause and on person in cash sub- found $449 cumstances, subsequent seizure of the gun out of the vehicle. sequently seized marijuana should marijuana pipe attempted gun See Millner to have id. as the of an suppressed have been fruits however, suppressed; Supreme Court illegal search. that he failed meet his found establishing contends, reasonable how- visitor, and that the ever, Arnold, parked no vehicle as a since reasons, gun suppressed. should not be 16 For these we conclude that See id. the fact that Arnold was not a resident of dispo apartment relevant ¶ 15 Millner involved seizure evi Indeed, apply matter. sition dence from a vehicle after the offi reasoning of Millner under the facts found cers had arrested suspect. Our Su permit police pro here would officers to preme premised its allowance of the justifications vide and random retroactive seizure on the fact Millner did not have a ly pretense any homes on the invade However, seizure, prior vehicle. person found to be a non-resident after gunshots, officers had heard observed the the fact could be searched. See Dem companion gun, defendant and his awith shock, (finding police 854 A.2d at 556-57 defendant, drugs found on the and arrest exigent must articulate circumstances at ed the defendant. Significantly, the offi time of and cannot provide retroac street, cers gun public observed the from a justifications tive to demonstrate vantage point legally where were circumstances). Allowing the Common By contrast, here, entitled to po be. justifications provide wealth to such fol lice were inside the illegally. lowing a random invasion into a home did not observe unlawful probable without warrant or cause and activity and had no reason to enter the exigent circumstances would trivialize the apartment apart alleged from an vio noise protections by afforded States United lation. The officers had not secured Pennsylvania Constitutions. warrant and were not able to articulate Davis, (reiterating 743 A.2d at 953 cause and circumstances allowing illegal to observe activi enter the As the officers by ties their own unlawful means “emascu unlawfully were apartment, inside the protections lates the to appellant afforded their observation of the pipe and all citizens the United States and plain view would not allow the seizure of Constitutions.”). Pennsylvania As po Davis, pipe. See Commonwealth v. legally apart lice officers did not enter the 952 (Pa.Super.1999) (citing Com ment, drug we conclude that the Graham, monwealth v. paraphernalia sup should have been (1998)) (“[E]vidence pressed illegal entry as the fruits of an by be seized when it in ‘plain Demshock, and search. See 854 A.2d at view3 observe evi (concluding 559 that the and search dence from a vantage point which [at] was unconstitutional and be.”) legally are entitled to (emphasis hence the fruits of the search should have original). Moreover, subsequent suppressed). been search and seizure of from person illegal Arnold’s was as the ¶ 17 As we find the evidence should have unlawfully premises, were on the suppressed, been we find no need to ad- articulate a conducting reason for dress Arnold’s second related to search, importantly, and most Arnold had sentencing. expectation reasonable of in his privacy ¶ reasons, For re- (“The foregoing 18 I, person. § Const. art. 8 Pa. judgment of verse the sentence re- people persons, shall be secure their trial in- houses, mand the case court with papers possessions from un seizures[.]”) (em struction to the evidence seized reasonable searches and added). phasis by the officers.

150

¶ an unlawful of RE- was fruit of Judgment sentence its auto seizure. The Sell Court viewed REMANDED for fur- VERSED. Case standing holding significantly as Opin- with matic proceedings ther consistent RELINQUISHED. rights than more of protective ion. Jurisdiction ju Fourth Amendment then-emerging ¶ J„ LALLY-GREEN, files risprudence Supreme from the U.S. Dissenting Opinion. Court, away from a which moved preliminary standing analysis BY LALLY- DISSENTING OPINION hwhich adopted approac a substantive GREEN, J.: by Fourth claims analyzed Amendment very sets Majority While the out a challenged whether focusing on persuasive analysis, I nevertheless dissent implicated a reason search or seizure binding Supreme because I believe expectation legitimate privacy able and Appellant’s Spe precedent controls case. personal to the defendant. was cifically, I under believe that our See, Rawlings Kentucky, 448 U.S. e.g., Court’s decision in Commonwealth v. Mill 98, 2556, 65 L.Ed.2d 633 100 S.Ct. ner,1 Appellant must first demonstrate Salvucci, (1980); States v. United of 2547, 100 S.Ct. 65 L.Ed.2d U.S. where found. area the contraband was Illinois, (1980); Rakas v. 439 U.S. the record fails to reflect dem Since such (1978). 99 S.Ct. 58 L.Ed.2d 387 onstration, I affirm the conviction. would Rakas, that, noted under Sell Court judgment also I would of sen vacate deter Rawlings, Salvucci and the “sole tence, reasons, but for different as set afford scope minant of the protection forth below. Amendment ed” the Fourth under 2 In our Court en- “ability ‘legiti prove defendant’s historical, in a gaged thorough, and com- by the ‘to privacy' mate ” prehensive analysis of Court’s “reason- circumstances.’ tality of the privacy” requirement. able at 466. scope In order to illustrate the broad I, analyzing Article Section analysis, quote I here the Court’s will it authority to find recognizing this Court’s editing: minimal un- greater rights protection understanding A proper the defen- charter, der Sell Court state preliminary suppres- dant’s noted: begins with hearing sion consideration the clear decision in decline undermine Court’s seminal Com- We Sell, I, of Article section 8 language

monwealth v. (Pa.1983). Sell, that, Amendment’s making we held Fourth “legitimate expectation amorphous under 8 of the Penn- Article Section Constitution, state privacy” part of our sylvania a criminal defen- standard guarantee against unreasonable charged possessory dant with a offense do so not standing” to and seizures. We pursue has searches “automatic we find the United only because motion evidence where (most dis- Supreme analytical Court’s contraband or States typically, firearms) “standing” between very basis for the tinction forms see crime, question,” substantive and the claim is that “threshold possessory 237, (2005). 585 Pa. 1. Commonwealth v.

Rakas, 7, supra prevail at 139 n. upon suppression U.S. order mo- at unhelpful tion, S.Ct. 428 n. to our preliminary the defendant has a interpretation of Article section 8’s burden to show that challenged po- protection, but also because we be- implicated lice conduct a reasonable ex- lieve the United States pectation privacy he had in the area Court’s current use of the “legitimate or item searched seized. 596 A.2d at expectation of privacy” concept need- alia, (discussing, 174-76 & nn. 2-4 inter lessly detracts from the critical ele- Copenhefer, 526 Pa. ment of governmental unreasonable (1991); 587 A.2d 1353 Common- intrusion. Oglialoro, wealth v. (1990); A.2d 1288 and Commonwealth v.

Notwithstanding the Sell Court’s rather Blystone, 519 Pa. 549 A.2d 81 broad criticism of (1988)). the substance of the concurring opinion, howev- Rakas/Salvucci/Rawlings approach to er, differently, construed Sell arguing questions, search and seizure holding its purported that it had to establish a state very narrow. The Sell case came to constitutional rule that protec- was more this Court as an appeal Superior from a tive of than the federal reason- ruling which held that the defen- Thus, able test. dant, charged who was receiving argued the concurrence that: property, stolen pres- but who was not If the governmen- reasonableness of a ent when police executed the search tal only intrusion can be evaluated warrant which led to the seizure of the implicated when the search or seizure business, stolen firearms at particular defendant’s reasonable standing lacked challenge even to expectation of privacy, the Sell rule is constitutionality of the search. Sell held identical in all practical respects to the “automatic standing” doctrine approach. federal I find it hard to and, remained in Pennsylvania; viable believe that Sell stands for the since receiving stolen property pos- is a that, proposition court when the inevi- sessory offense, Sell remanded to the tably denies the defendant’s motion to Superior Court for consideration of the suppress, imperative it is to announce merits of challenge the defendant’s is “no expecta- there the constitutionality of the search. 470 privacy” tion of rather than no stand- A.2d at 469. ing. If the Sell Court intended this Sell, some confusion arose con- result, it would have been much easier burden, cerning what if any, the Penn- adopt simply to Salvucci sylvania standing automatic defendant (Hoffman, J., 596 A.2d at 187 concur- had in a hearing, particular- ring) (emphases original). The concur- ly light of the U.S. Court’s permitting rence thus construed Sell as focus a defendant’s reasonable ex- standing automatic defendants to vicari- pectation in assessing Fourth ously privacy rights of others assert Amendment claims. The confusion most in some instances. notably Superior manifested itself in the granted This Court further review in Court’s decision in Peterson, specifically Peterson and addressed the Pa.Super. 596 A.2d 172 (1991). Citing interplay standing principles and the to a number of this decisions, post-ReZZ Court’s the lead role of the “reasonable ex- substantive by that, opinion Judge pectation privacy” analysis. Beck noted of Our 152 denied, 576, opinion rejected Superior

unanimous 783 alloc. 525 Pa. (1990). Court concurrence’s construction of Superior Sell 575 A.2d 108 explicitly and made it clear that Sell’s failed to distin Court concurrence holding automatic did not ab- standing guish necessity pre between for a suppression of solve defendant his liminary proprietary demonstration of obligation to that the chal- demonstrate interest, necessity possessory or a lenged police implicated conduct rea- Pennsylvania, does not which exist expectation privacy sonable of he necessity demonstrating and the of possessed: personally the merits of claim. suppression Standing denotes the existence does Appellant’s standing automatic legal interest. In the context this him evidentiary not divest re case, specifically the term refers to to sponsibility show that the warrant- right appellant’s to have the merits of entry by less law the storefront suppression adjudicated motion personnel enforcement con [the lant is then had his standing lished the time matter contested. possessory equivocally, or effects out ership more, to or a preliminary showing appellant’s standing possession seized. existence of this offenses is required holding that confer acknowledged, appel Sell, However, having standing. to establish that sufficient, supra, charge right premises of own At estab with un no Hawkins, reaffirmed Peterson’s suppression qualification. E.g. Commonwealth Later decisions from this Court have (Pa.1998) (“essential ^[615] [Com. and duct at at 617-18 v. legitimate expectation Peterson, issue] violated defendant’s [(1993)]. 535 Pa. 76, effect” of approach, burden without 492,] A.2d a reasonable automatic 636 A.2d 265, privacy. v. standing doctrine a defen- “is to entitle challenge he has without adjudication to an of a dant of the merits legitimately legitimate. raised is itself prevail In order to motion. so, In order to do he must demon motion, however, on such a a defendant privacy strate that he held such required is demonstrate a separately actual, societally interest which was personal privacy interest in the area reasonable, justifi sanctioned as and seized, searched effects such able invaded ‘actual, societally interest was sanc- warrantless of the violat ”) reasonable, justifiable.’ as tioned right ed his under the Constitution of (citations omitted) (thoroughly discuss- Commonwealth, 1, Article Section doctrine); ing evolution Common- 8, against to be “secure unreasonable Gordon, 65, v. wealth 546 Pa. See, searches seizures.” Com (Pa.1996) 253, 256-59 em- (particularly 167, v. Brundidge, monwealth 533 Pa. phasizing prove burden to defendant’s (1993); 620 A.2d Com subjective both v. Oglialoro, monwealth (1990). subjective is one and that 1288, 1290-1 He society as must, willing respect which short, having brought his addition, claim, legitimate). this Court has demonstrate its merits rejected that Arti- specifically the notion showing legiti of his as construed mate cle Section should be See, premises. permitting vicarious assertion Cameron, to, interests in order Pa.Super. of others alia, intentional, In- expectation.”). legally protected inter “dissuade intru- Hawkins, deed, suggest sive conduct.” 718 A.2d far less of the facts bar at 268-70. the area searched than a connection with in has held other cases which In progeny, the wake of Peterson and its did not that, expectation that an notwithstanding it is clear the dicta exist, i.e., in cases where the defendant criticizing Sell the substantive federal claims, approach to Fourth inside actually physically present Amendment Gordon, under Article Section no less than area searched. Amendment, under the Fourth a defen- (presence in and use of A.2d at 258 prevail suppres- upon dant cannot Peterson, 636 property); abandoned sion motion unless he demonstrates (presence drug gate A2d at 618-19 challenged police that vi- conduct house). Accord Commonwealth Cam- own, personal privacy olated his inter- eron, Pa.Super. 561 A.2d 783 ests. denied, (Pa.Super.1989), appeal above, As we have noted in the case sub (presence 575 A.2d 108 judice, appellee offered no evidence to drug opera- abandoned house used for personal privacy demonstrate a interest (cited Peterson). tion) approval with vehicle, in the the search of which (footnote A.2d at 689-692 formed the basis for his claim that the added). omitted, emphasis bold firearm Appellee should be excluded. ¶ Thus, recently Millner Court produced no evidence that he owned the reaffirmed the broad comprehensively vehicle, nor did produce he proposition that defendants who are remotely which suggested that he had charged au- possessory offenses have any other connection to the vehicle standing suppression tomatic to file a mo- which could form the basis for so much tion, they carry but nevertheless the initial subjective as a expectation privacy. showing they a person- burden of had addition, In nothing there was privacy in right place al to be Commonwealth’s evidence which Only if searched or the items seized. Id. appellee rely prove he had initial the defendant carries this in the Cadillac does the burden then shift to the Common- in question. The police testimony estab- prove wealth to the evidence was nothing lished that was found properly seized. Id. at 692. other vehicle, on appellee’s person, through words, if prove the defendant fails to search, suggest any record lawful then the privacy, Finally, connection to the car. the fact fail it is un- suppression motion must testified to seeing appellee necessary to examine other issues. put the firearm in the vehicle—a fact Obviously, require- Id. this threshold appellee denied—alone does not estab- exist, ment did not courts could more easi- subjective lish both a and reasonable of whether the ly proceed in a vehicle to Nevertheless, unreasonably. police acted which legitimate he had no other connec- Court has held tion. Cf. Copenhefer, firmly remains requirement threshold (Pa. place for all cases. Id. 1991) (“A attempt defendant’s to secrete case, relies Appellant 4 In the instant synonymous evidence of a crime is not legally cognizable expectation solely argument with a on the that the A saw privacy. hope secrecy right mere for is not no to be where 154 home, Ap- transfer Because to the and to

Appellant pipe. people nection pellant’s argument is on the notion the home itself. Commonwealth v. based 474, Rodriguez, Pa.Super. had to be in 451 A.2d police right that no a 679 cases), 1320, (collecting place, certain ask whether must first 1325-1326 denied, 681, expectation had 704 637 Appellant appeal reasonable 550 Pa. A.2d (1997). Thus, place. of in that a mere visitor to a privacy casual may expecta- home not a reasonable have ¶ single no 5 There is test for determin- privacy, person greater tion of while a with ing person a a whether has reasonable may have a personal connections reason- expectation privacy place. of in a General- expectation. able Id. ly» legitimate of expectation privacy “[a] ¶ Here, subjective reflects requires privacy expectation 6 the record no evi- objective coupled Appellant subjec- with reasonableness.” dence that held even Torres, 86, expectation privacy 564 Pa. 764 tive Mr. Shull’s (2001) (citation omitted) 532, 542 n. 11 apartment. suppression The record also (defendant apartment, Appellant who co-leased an no evidence that reflects. there, subjective anything but not live no other visitor to Mr. did had than casual privacy Fultz expectation Trooper and thus testified Shull’s motion). prevail apartment. Ap- on a The that Mr. Shull rented the Supreme pellant United States has did not there. He Court held live lived overnight guest eight away, that an in a home has differ- least nine blocks expectation Minne- I privacy. municipality. reasonable ent would conclude Olson, 1684, initial Appellant carry sota v. 495 U.S. 110 S.Ct. failed to (1990); showing 109 L.Ed.2d 85 accord Common- of that he had a reasonable ex- Cruz, in Mr. pectation apart- wealth v. Shull’s (2004) (citing approv- n. I hold it is Accordingly, Olson ment. would al); Winfield, unnecessary see also v. whether the seizure Commonwealth decide (Pa.Super.2003) plain 835 A.2d doc- 368-369 was warranted under view (person carries a trine2 or the doc- circumstances room, uphold I the con- a rented hotel but not trine.3 Millner. would permit Supreme the rental term ended and viction and Court to after has lapsed). checkout time has An decide whether to reconsider Millner degree is related of con- rule. police recently forth took after the had Our Court set four-prong Appellant test must be met in order for cause with re- to arrest First, plain apply. view doctrine to spect pipe. marijua- The seizure view the Appellant’s justified must person was as a na from Second, legal vantage point. from a item incident search to arrest. Third, plain be in view. the in itself must Majority criminating be Commonwealth v. Dem nature the item must imme 3. The cites shock, Finally, (Pa.Super.2004), sup diately apparent. must 854 A.2d right position port have a lawful of access to item. of its lacked McCree, (Pa. Respectfully, A.2d 621 Dem- circumstances. 2007). appear It would that under it does not because did not shock control come plain expecta view doctrine would not "reasonable examine threshold issue, play until the defendant shows a reasonable privacy” tion of as our privacy. expectation of requires. precedent I also note that Dem- heavily v. Ro Appellant shock relied on Commonwealth Majority observes land, (1994). privacy” person, "expectation of in his marijuana. Court did not examine "reason where the found the While Roland issue, true, privacy” either. I the seizure of the able be note that conviction, I uphold opinion, 7 While would 9 In its Rule 1925 the trial Perry I highly regarded judges would conclude that the court stated that trial long-standing poli- trial Juniata Counties have a court abused its discretion sen- cy sentencing Appel- defendants such as tencing Appellant aggravated-range to an (first-time guilty posses- lant offenders prison stating any term without reasons on marijuana) sion of a small amount of Here, sentencing guide- the record.4 days. term of hours to 30 Trial prison lines themselves state that “when the court 5/1/2006, Opinion, Court at 1. This inflexi- imposes aggravated mitigated or sen- ble, policy sentencing non-individualized tence, it shall state the reasons on the all aggravated offenders same sen- 303.13(c); § record[.]” Pa.Code see impermissible. tence is 9721(b) (“In See Common- every § also Pa.C.S.A. Walls, 957, 962-64, wealth v. 966- imposes case which the court a sentence 1431, **12-16, 2007 Pa. Lexis 24-30 misdemeanor, felony for a the court (Pa.2007).5 Thus, I would affirm the con- record, shall make part as of the and dis- viction, resentencing. but remand for in open close court at the time of sentenc- ing, a statement of the reason or reasons

for the sentence imposed.”) (emphasis add-

ed). requirement This is satisfied where record,

the court states the reasons on the presence, the defendant’s sentencing. Littlehales, Pennsylvania, COMMONWEALTH of Appellee (Pa.Super.2007).

¶8 Here, the record reflects that W.H.M., JR., Appellant. trial court any did not state reasons on the record for the imposed sentence when it Superior Pennsylvania. Court announced the sentence. the trial While 7,May Submitted 2007. attempted court to justify the sentence in Aug. Filed its Rule 1925 opinion, explanation, its re- spectfully, is comply not sufficient to

the rule. Id. at 666 n. 6. aggravated range Roland Court not have examined the of 48 was within the hours obvious, issue guidelines. because it was conceded and of the insofar as the entered the defendant’s Walls, Supreme recently our Court set own home. legal principles governing appellate forth the properly

4. The Appellant record reflects that review sentences that exceed the Sentenc- preserved this issue and raised substantial ing Notably, Guidelines. inappropriate. that the sentence was rejected suggestion this Court’s that the trial Sentencing court must follow the Guidelines § 780-113(g), posses- Pursuant to 35 P.S. compelling unless the court can articulate sion of a small amount of is a did, reason to deviate therefrom. The Court statutory pris- misdemeanor with a maximum however, Pennsyl- reaffirm that sentences in days. sentencing on term of 30 Under the guidelines, cir- gravity vania must be tailored to needs and the offense score is 1. 204 defendant. A guidelines provide § cumstances of individual Pa.Code 303.15. The single, public standard-range sentence based on a inflexible sentence of restorative sanc- standard, aggravated policy § tions. 204 Pa.Code 303.16. would fail under includ- range guidelines prison ing authorizes the standards articulated Appellant’s prison term. Id. minimum term Court in Walls.

Case Details

Case Name: Commonwealth v. Arnold

Court Name: Superior Court of Pennsylvania

Date Published: Aug 21, 2007

Citation: 932 A.2d 143

Court Abbreviation: Pa. Super. Ct.