Commonwealth v. Black

aide, a teacher’s lence toward constituted the correctly

trial held There- bodily injury.

reckless infliction

fore, suffi- find that the evidence was we prove simple

cient assault. disposition affirmed. Order Pennsylvania,

COMMONWEALTH of (At 732)

Appellant, BLACK, Appellee.

Christopher Pennsylvania, 733) (At

Appellant, Diorio, Appellee.

Vincent Pennsylvania.

Superior Court

Argued March Aug.

Filed Erlich, Atty.,

Michael Asst. Dist. Phila- delphia, Com., for appellant.

Joseph Santaguida, Philadelphia, C. for Black, appellee.

Robert Gamburg, Philadelphia, for Dior- io, appellee. ELLIOTT,

Before: FORD MONTEMURO*, CIRILLO, JJ. and Judge President Emeritus.

CIRILLO, Judge President Emeritus: ¶ 1 The of Pennsylvania Commonwealth appeals from an granting suppres- order sion motion entered in the Court of Com- mon County.1 Pleas of Philadelphia We reverse.

¶ 2 Appellees, Christopher Black and Diorio2, Vincent with know- * (1985) assigned Superior Retired Justice (holding Court. suppressing an order evi- appealable only apparent dence is when it is complied The Commonwealth has the record that the order terminates or from Appellate Rule of Procedure substantially handicaps prosecution). 311(d): Appellate 2. Pursuant to Rule of case, aIn criminal circumstances appeals Procedure these have been con- law, provided by may the pertinent part: solidated. Rule 513 states in appeal take an as of from an order that does not end the case appeal [w]here entire where there is more than one order, certifies notice same or where the same appeal that the order appeals will terminate or sub- involved in two or in differ- more cases, stantially handicap prosecution. appellate may, ent discretion, in its 311(d). Dug Pa. R.A.P. See argued togeth- Commonwealth v. order to be them ger, 506 Pa. particulars single appeal. er in all if but methamphet- positive for a con- stance tested possession and intentional existence The whereabouts with the amines. possession trolled substance be obtained. Barsh could not a controlled substance. of Barbara intent to deliver pre-trial Diorio each filed a Black and for Officer arranged Jeitner Officer evidence, suppress physical motion Express the Federal Doran to deliver 22, 1999. granted January which was apartment. floor Offi- package to the first claiming appeals, The Commonwealth between the package left the cer Doran granted it Black trial court erred when of the front door and the screen door suppress. and Diorio’s motions the door knocked on apartment after she Philadelphia September 3 On an Officer not receive answer. and did the Nar- William Jeitner of Police Officer maintained surveillance Nicoletti telephone conver- cotics Field Unit had during time. Nico- Officer property Payton the Los Detective sation with or exit the anyone see enter letti did not re- Angeles County Department Police later, minutes forty-five until Express package ad- garding a Federal apart- Diorio enter when he observed Torrey Barbara Barsh dressed to Approxi- parcel inside. ment and take the Road, Floor, Philadelphia, Pennsyl- First later, Jeitner thirty minutes Officer mately vania, Payton Detective informed apart- door of the on the front knocked he had infor- that received Officer Jeitner officers announced that ment and mation a reliable informant from and that he property were on the present Express package, Federal apartment. for warrant a search Barsh, Barbara contained cocaine. Detec- made several knocks Again, Jeitner Officer also Officer Jeitner Payton tive informed announcements, when he did not and and in- provided prior informant had occupants in- response hear from the any which arrests in formation led several side, forcibly premises he entered Moreover, Payton in- past. Detective the search warrant. execute the Federal formed Officer Jeitner entering apartment, Upon Express intercepted had been package saw Black and Diorio seated the Officers California, opened without a is- large living on a room with couch warrant, and found to sued search bags glass table front them. Several contain numerous hand lotion containers glass ta were seized from the cocaine bags with of cocaine stuffed inside Express package was bletop. The Federal reseated and containers. the door against a wall between Express leaning sent to Bob Brown of the Federal Bristol, also Pennsylvania. rear of the couch. The search Security office and the money, drugs, in the resulted seizure ¶4 Donna Officer Jeitner Officer indicating drug items paraphernalia, Bristol, Doran met with Bob Brown prop in the possessionary Black’s Pennsylvania. and Doran Officers Jeitner erty. and Diorio were Black Express possession took of the Federal intentionally possessing knowingly or Richard Nicoletti package. Officer substance, possessing con controlled Field Unit Police Narcotics Philadelphia with an intent intent trolled substance for the obtained search warrants it, possessing drug parapherna to deliver floor A search of and the first lia, conspiracy. and criminal was conducted at the Narcot- which suppress Diorio filed motions Unit, revealed that ics Field This were the trial court. granted eight contained bottles Suave rais appeal followed. The Commonwealth hand lotion. Four bottles for following es issue our consider surgical tape wrapped gauze ation: a white substance. sub- contained stipulation may Pa.R.A.P.

Appeals be consolidated appeals. parties to the several the lower granting Did court err in de- the admission of suppression fendant’s (at motion based on Knowles, hearing). speculation that a package of contraband 76[, supra at 327 A.2d 19]. may addressed to a party third ¶ 8 In standing, addition to howev improperly been opened in California er, we find that a defendant must also defendant, apart where having no expectation demonstrate reasonable issue, standing to clearly raise the searched. Follow lacked pri- reasonable Knowles, held in this court vacy in the package at time of Rodriquez, Commonwealth v. 385 Pa.Su search? per. a person Our standard of review in this case is must expecta demonstrate well settled. tion of to In standing. establish In reviewing an order a granting motion Rodriquez, this court suppress, stated: to an appellate may court con- only sider the evidence of the defen- Sell, Supreme interpreted our Court dant’s witnesses and so much of the I, section Article 8 of the that, Commonwealth’s read in evidence giving scope Constitution as broader whole, context of the record as a protection regard standing to to Furthermore, remains uncontradicted. challenge a search than and seizure scope our of appellate is limited review Supreme United States has Court con primarily questions to of law. We are strued fourth N1 amendment. bound the suppression court’s find- The Sell Court elected to continue the if ings findings fact are sup- those standing” “automatic it rule first ported the record. findings Factual Knowles, adopted Commonwealth v. wholly evidence, however, lacking in 70, (1974). Here, 459 Pa. 327 A.2d 19 rejected. may Commonwealth v. appellee with one count Torres, 228, 319, 429 Pa.Super. 632 A.2d knowing possess each of or intentionally 320 substance, ing a controlled manufacture Blee, Commonwealth v. 695 A.2d 802 to with intent manufacture or deliver (Pa.Super.1997). substance, controlled and criminal con ¶ The 7 Commonwealth introduced and spiracy. charges Because the first two admitted into evidence the search war- two offenses, possessory initial appellee in question rants along respec- with their ly standing has to search challenge the tive affidavits of cause. The seizure, however, law, and a matter asserts appellee we property find abandoned the challenge lack standing Diorio to the valid- seized, she has not standing ity of the search warrants and that of the house and conse search warrant Federal Ex- issued for the quent seizure narcotics. press package opinion, In its lawful. the trial held Black and Diorio: 128, Illinois, e.g. automatic [h]ave N1 See Rakas v. U.S. 439 421, (1978) 99 58 L.Ed.2d S.Ct. 387 of the search warrants and DeForte, 364, Mancusi v. 392 88 S.Ct. U.S. admissibility derived 2120, (1968) (reevaluating 20 L.Ed.2d 1154 Knowles, v. therefrom. Commonwealth standing” applied al- the "automatic rule 70, (1974); Pa. 459 Com- leged Fourth Amendment in Jones violations' States, 257, 725, 362 4 Sell, 46, v. United U.S. v. 470 monwealth 504 Pa. A.2d L.Ed.2d 697 the mere held (1979)[1983]. If possession 457 charge possessory of a defendant of- with a evidence is ele- seized itself an essential alleged fense conferred to assert an ment the offense the defen- [when] violation). Amendment Fourth is charged, government pre- dant is Rodriquez, supra at 948. Defendant denying cluded that the Furthermore, requisite possessory Rodriquez

has court held:

1257 Constitution, see Common- one has It is that “no well-established 46, 66-68, 470 Pa. complain 504 wealth (1983); volun- that he has also Peter- seizure of see 468-69 A.2d tarily abandoned.” Commonwealth A.2d son, Pa. at Shoatz, 469 Pa. 366 A.2d that the recognized these decisions (1976); Cihylik, Commonwealth v. a defendant is to entitle effect essential 221, 226-28, A.2d Pa.Super. aof of the merits adjudication to an (1985). “The test for abandonment id. motion. See could complaining party is whether the prevail In order to at 617. A.2d priva- expectation retain a reasonable motion, however, a defendant such incy property allegedly abandoned.” separately required demonstrate Sero, personal privacy interest in the area (1978); Cihylik, A.2d seized, or effects searched 226-28, Pa.Superior Ct. societally “actual, interest was such well-stat- principles at 990. These reasonable, justifi- sanctioned as ed Sell: Peterson, 535 at able.” constitu- possessions remain “[P]ersonal legitimate of' 617. Such tionally ... until their owner protected owner or where an absent control, meaningfully abdicates his own- possessor meaningfully his abdicates ership possessory interest therein.” or control, ownership possessory in- or Id., 67, at 504 Pa. 470 A.2d at 469. 67, 470 at 504 at A.2d terest. Rodriquez, supra 469.... must maintain [A] Pennsylvania The Supreme 9 Court in such fash- possession of his placing addressed the issue of the burden his of expectations ion that freedom seeking defendant to are as reason- recognized from intrusion priva- legitimate expectation establish a of able. an cy as essential of his case in element added). Hawkins, supra (emphasis 267 Hawkins, 76, v. Pa. Commonwealth 553 Supreme further Pennsylvania Court (1998). Pennsylvania 718 A.2d 265 to to “[i]n held that order obtain has Supreme that stand- Court determined search, [a ing requires a to defendant demonstrate he, rather establish that defendant] must following one of the elements: [another], of inva- than was the victim an (1) presence premises on the at the Hawkins, 269 supra sion privacy.” (2) seizure; time of the search and added). (emphasis possessory interest the evidence im- recently, Pennsylvania Su- (3) 10 Most seized; the offense of consti- preme Court the issue charged includes an essential element case, tutionally protected privacy interests prosecution’s the element of 216, Johnson, 556 Pa. possession at time of the contested Commonwealth v. (4) seizure; 234-35, 1089,1098 or proprietary holding search and 727 A.2d possessory interest the searched that: premises. constitutionally pro An individual whose Hawkins, Pa. Commonwealth 553 rights tected are violated cannot (1998) (citing Common- any injury by claim warrantless Peterkin, Pa. wealth v. 511 309 513 In to claim a seizure. order [FN7] (1986)). A.2d right in an constitutionally protected seized, Hawkins, item the defendant must show: (1) subjective expectation opined: that he had (cid:127) (2) privacy; Court has stated that auto- While this recog society prepared is one that matic maintains continued vi- legitimate. See tality Section 8 of the nize as reasonable and under Article Gordon, 546 Pa. package, they themselves each We consid failed to respective demonstrate how their totality er of the circumstances and privacy interests had been violated under carefully weigh the in societal interests either the Fourth Amendment of the Unit- volved determining when the legitimacy ed States Constitution or Article Section such expectation. an Id. at Constitution. A.2d at 257. regard appellees’ With Fourth Amendment prosecutions, the trial principle FN7. We have divided this into (1) concepts: litigate sup- two court held: claim; (2) pression the existence of a parcel is first mail class legitimate expectation pri- (state vacy and is from inspection by thing free See seized. Peterson, actors), except federal in the manner provided by 4th Amendment. “Let Johnson, 234-35, supra A.2d at ters packages and sealed kind in the mail as fully guarded from ex ¶ 11 agree We with the trial court amination and inspection, except as to find and Diorio have stand their form and weight, outward as if ing legality of the search they by parties were retained forward warrants admissibility and the evi ing them in their own domiciles. The However, dence therefrom. unlike derived guarantee Constitutional court, the trial granted standing people papers be secure and their appellees because their possessory against unreasonable sei searches and seized, the evidence we find zures papers, extends to their thus that the appellees must be accorded stand against inspection, closed where ever presence due to their on the premises mail, they may be. they Whilst at the time of the search and seizure. can only opened be and examined under Hawkins, supra. warrant, like issued similar open ¶ Despite finding, this we are affirmation, particularly describing the compelled to reverse the suppression seized, thing to required as is when court’s order to beyond which failed look subject papers are to search in one’s Knowles and apply the second prong own household. law of [CJongress No requires Johnson test that the defendant can place in the hands of officials con to establish the of a existence any nected with the au postal service legitimate expectation privacy in thority secrecy to invade of. letters Johnson, the item seized. supra at mail; and such in packages sealed 727 A.2d at Black 1098. Neither nor Dior- and all regulations as to mail matters of io a privacy established interest in the must be in time subordination to the Express package Federal to addressed great 4th principle embodied in the Barbara Barsh. Neither Black nor Diorio Amendment of the Constitution.” they alleged that were Barbara or Barsh Jackson, parte Ex that Barbara Barsh was an alias used L.Ed. 877 Furthermore, sup either them. at the parte We find that Ex Jackson hearing, Black pression both and Diorio inapplicable is the present Appel- case. attempted to disassociate themselves trial all posi lees base the Black package. testified that he had they assumption tions advance on an that all, no recollection of the while package addressed to Barbara Barsh that term Diorio admitted he was short opened unlawfully was California au pack to where visitor Therefore, argument contin sent, thorities. age actually “kicked” it aside ues, conveyed by the information Califor way through on his the door. Because Pennsylvania police to attempted Diorio disassociate nia authorities to the appellant on whether position take probable to not be used could privacy warrant in Penn- to cause had a reasonable Sanchez, sylvania. Commonwealth was never a decision Such package. which holds re- procedure necessary as that law- only foreign searches conducted that under probable cause or warrant no quired particular fully precepts to law; appellant’s challenge California supply foreign jurisdiction may foreclos- prioñ would be a validity thus its warrant, cited for a is cause of law Accordingly, principle ed there. support. here, but inapplicable is it enunciates necessary point 15 It to out that of the par- because nonetheless instructive following suppression its remarks Moreover, presents. allel it to be hearing, the trial court- considered it ap- to actually addressed Sanchez on unclear the evidence which whether so whatever determination pellant, been warrants were based had obtained interest might be made of Sanchez’ how- “legally illegally.” opinion, In its or him, the founda- in a ever, unequivocally the court states here- Appellees of whether tional illegal parte on Ex the search was based question the in would have kind is Jackson. No reference search, given complete their California made to law. California with the at that lack of connection the trial court Significantly, negative. must point, be answered neglects also that Fourth mention personal, protections Amendment Although ap protection persons inure to the differently standing issue proaches the Carter, things. Minnesota v. U.S. California, result remains than does L.Ed.2d 873 As state, an auto previously same. As demonstrating the violation predicate a defendant to matic conferred on is, rights, Fourth Amendment mo adjudicate merits of a law, standing, establish like fed “In such a mo prevail order to tion. law, requires eral defendant show tion, however, required to a defendant is he has a legitimate expectation personal privacy separately demonstrate Witkin, place. in the invaded or the effects the area searched B.E., Summary Law of California ‘actual, seized, and that such interest (1996). § People 9th Ed. See also as societally sanctioned Badgett, 41 Cal.Rptr.2d 10 Cal.4th ” Hawkins, at justifiable.’ supra 635, 895 P.2d 877 A disclaimer of Peterson, supra at (quoting at 267 interest, Appellees such as here have 617). at The rationale un made, or absence evidence of owner of had no derlying finding Appellees ship, possession or control of the item Pennsyl in package in the privacy interest preclude challenge to the searched will equally serves same vania Dees, legality People the search. it package while regarding conclusion Cal.App.3d Cal.Rptr. 554 case, in California, remained California. Thus, in their given disavowal person was to a whose package knowledge all contents or package, ascertained, addressee, been Appellees identity would was never argue permitted knowledge. both denied Appellees whom Accordingly, there. here, search conducted none Lacking such interest could presuming in trial court erred status argument there. Thus the demonstrated search. California search warrant was that the by le unsupported invalid because it Sanchez, 17 In which involved probable cause cannot California, gitimately obtained in dog sniff a sealed Court declined be sustained. Pennsylvania Supreme addition, 19 In ELLIOTT, J., we note that sealed FORD concurring: packages deserve protection constitutional ¶ 11 concur the result by reached appropriate circumstances, however, majority. Although I agree that the trial courts “entertain presumption that the reversed, court should be I arrive at this addressee is the true and sole until owner conclusion traveling very down a differ- the opposite LaFave, is shown.” 5 W. ent path of I reasoning. would find that 11.3(f) § Search and Seizure at 205 3d appellees possess both and a rea- cases). Here, (collecting ed.1996 sonable to pursue and Diorio did not present evidence that their claims. they sent the package or were person ¶ 2 begin I by reviewing procedural addressed; therefore, whom it was posture of this pivotal case because it is Black and Diorio cannot assert a claim for my analysis. Appellees filed motions to privacy. invasion of suppress evidence during seized a search ¶ Moreover, it is well set Black’s police conduct- tled law that: ed the pursuant anticipatory an warrant,3 which provided that the order to qualify

“[I]n as a ‘person ag- apartment could be only searched if a grieved by an unlawful search and sei- pursuant searched to warrant no. zure’ one must have been a victim of a 87969 contained cocaine or another con- seizure, search or one against whom the substance, if, trolled after being deliv- directed, search was as distinguished address, ered to Black’s from one prejudice who claims only (R.R. taken inside the occupants. through the use of gathered 6a.) a consequence of a search or seizure directed at someone else.” See also ¶ 3 The affidavit cause sup- Rawlings Kentucky, porting warrant no. 87969 stated that a 65 L.Ed.2d 633 California, confidential informant who (1980): Illinois, Rakas v. 439 U.S. 128 past proven had reliable in providing 133-34, 99 S.Ct. 421 at police California tips officers with leading L.Ed.2d 387. arrests, apprised California Detec- Hawkins, Peyton tive that the supra package, By at 268. which was same token, being shipped from we find that a California to a “Bar- does not have bara Pennsyl- Barsh” Black’s address in interest mail that has not been vania, 4a.) contained either cocaine. {Id. sent or person. received affidavit Because further stated that the neither Black nor Diorio asserted ownership intercepted an Califor- package ad- did, fact, nia Barsh, and found that it dressed to Barbara contain and because cocaine, provided and also Pennsyl- neither can that a rights assert of Barbara Barsh, vania search of DMV and other we find that records they did not revealed that “Barbara proba- Barsh” was package. the There- {Id.) fore, bly a fictitious name. Black and Diorio’s motions to sup- Blee, press should have been denied. su- ¶ affidavit, 4 As a result of this the pra. Pennsylvania police obtained a warrant to ¶ 21 Order package, reversed. Jurisdiction relin- search the which revealed the (R.R. quished. presence a methamphetamine. at 24a-25a.) Officer Donna Doran then de- ¶ ELLIOTT, J., 22 FORD files a livered the package apartment, to Black’s Concurring Opinion. leaving it between the front and screen Glass, supreme recently 3. Our court ratified the use wealth v. 562 Pa. anticipatory (2000). search warrants in Common- 2000 Pa. Lexis 1523 cause the apart- provide nia could not After at the Diorio arrived doors. (Id.) inside, Pennsylvania warrants. the the package and the ment moved officers, acting pursuant to the anti- police ¶ in- Procedurally, this case therefore warrant, apartment entered the cipatory prob- challenge to the affidavit of volves a force, having response received no the a search of supporting able cause police The their “knock and announce.” ap- Pennsylvania: according to package in living sitting found and Diorio supported not pellees, if that search was room with various controlled substances cause, anticipatory by probable then the drug paraphernalia the table in on not flowing from that search was warrant persons. front of them and on their The cause; therefore, supported by probable leaning against was a wall near illegal. the was apartment the search of (Id. 31a-33a.) at the front door. majority’s the disagreement with My arrest, Black Following their the before us resolution of suppress, challeng- Diorio filed motions to of Com on part application based in its the based apartment the search of on Sell, monwealth 504 Pa. four corners of the two search war- facts case. to the of this police rants and also based on the officers’ reaffirmed the supreme our court to “knock announce” alleged failure automatic rule as enunciated (Id. entering before 8a- in Jones v. Unit the U.S. Court 9a.) grounded The States, ed 362 U.S. 80 S.Ct. Fourth and Fourteenth Amendments to Jones simply, Put L.Ed.2d (Id.) suppres- The the U.S. Constitution. standing on defen conferred automatic court, having sion concluded that possessory dants with offenses invalid, search warrants were did ad- charge itself. The strength of the of the dress execution rule gravamen of automatic (Trial anticipatory opinion, court warrant. charging posses defendant 7-8.) 10/13/99 him precluding sion of contraband conduct which challenging from writing opinion, suppres- 6 In its he claimed owner led to the seizure unless sion court framed the as “whether issue ship put of the Fourth and protections in a evidence obtained warrantless search Fifth Amendments in conflict. The Sell parcel jurisdiction mail in a foreign of a upon to re-examine the court was called may provide probable for the issu- cause rule because the Jones automatic ance of search warrant this Common- been the Su (Trial repudiated decision had opinion, wealth.” court 10/13/99 in favor “rea preme threshold Court 4.) The court concluded both the for a privacy” sonable test violation. Rakas Fourth Amendment subsequent of the Illinois, 439 U.S. 99 S.Ct. poisonous tree: were the fruits of the Sell court L.Ed.2d 387 As in Cali- warrantless search (Id. observed: citing Wong Sun Unit- fornia. States, Rakas Court shifted the focus

ed (1963).)5 ‘standing’ merits L.Ed.2d 441 The Rakas illegal underlying then that the war- claim. concluded of the interest scope held that rantless search of Califor- Pennsylva- suppression hearing, suppression hearing, evidence at 4. At the 323(h), spoke police who with the Califor- nia officer the trial court R.Crim.P. police testified he assumed the nia officer could found the search in California have police had a to search the warrant warrant. was conducted without a prior frequent on his contacts based police, he admitted he with the California but Wong decided under federal 5. Sun is case 50a.) (R.R. at Because the did not ask. law. producing Commonwealth bore burden protected by the Fourth governmental Amendment ment unreasonable by is to be determined ‘whether the intrusion. protection who claims the a legitimate Amendment has ex- Sell, 66, (citation supra at pectation of privacy the invaded omitted) added). (emphasis Rakas, place.’ supra 439 U.S. at Peterson, 9 In Commonwealth v. 430. The Court further supreme our that, declared to ‘legiti- be considered court revisited the automatic mate,’ an expectation of privacy must in a involving case the warrant- have a source outside of the Fourth less drugs search and seizure of from an Amendment, either reference to abandoned building. The court deter- of real or concepts personal property Sell, mined that under Peterson understandings law or to rec- are had automatic standing to ognized permitted by society. search; however, he lacked One rights main attaching to expectation privacy the premises to exclude oth- an building. abandoned As the Peterson ers. court stated:

Id. at 143 n. at 430 S.Ct. n. However, having had his standing ac- Thus, supra at 470 A.2d at 468. knowledged, appellant then required the Sell court concluded: establish that he has question legitimately

We decline to undermine the without clear raised is I, so, language of itself In legitimate. Article section 8 order to do he must making the Fourth demonstrate that he held such a Amendment’s actual, privacy interest amorphous ‘legitimate which was socie- expectation of reasonable, tally justi- sanctioned as privacy5 standard a of our part state place fiable in the guarantee invaded the war- against unreasonable entry of rantless violated searches and seizures. We do so not right under the Constitution of this only because we find the United Commonwealth, Section Article Supreme analytical States Court’s dis- against be ‘secure ... unreasonable ‘standing’ tinction between searches and seizures.’ question,’ ‘threshold substantive see Rakas, supra (citation 139 n. Id. at 636 A.2d at 617 omit- unhelpful ted). S.Ct. 428 n. short, to our In Peterson’s automatic I, interpretation of Article section 8’s not relieve him of -did his eviden- protection, but also because we be- tiary burden on the merits of his claim: lieve United States that the warrantless into entry the' store- Court’s current the ‘legitimate use of front law enforcement officials violated privacy’ concept legitimate expectation need- reasonable and lessly privacy.6 detracts from critical ele- merits, I be they they would less than candid if I did can succeed on are re- supreme (cid:127) authority concede that court since quired ownership to claim an interest in the including Peterson has blurred the line drugs in order establish reasonable ex- between ing and federal stand- pectation in them. This would emphasized although rules. Peterson appear exactly majority what has may defendant file a mo- precisely reject- Sell done and what the court suppress, tion to he still must establish standing. ed in its establishment of automatic personal place thing interest in apparent Based on the confusion in this area precedent seized as a condition chal- appears and what to be a movement closer to lenge of of the the reasonableness search and cases, through standard recent federal our effect, charged seizure. defendants with supreme may to re-examine the wish may possessory offenses file mo- vitality concept continuing of automatic challenging drugs they tions seizure standing. however, possessing; before

1263 were premises and both found on the majority agrees The that Sell still 10 drugs What of found possession law this Commonwealth. good rationale, majority’s me including package. concerns about apartment, however, is that I believe it mirrors that of appellees analysis, Under Peterson’s not of the Rakas court and Sell. expectation a reasonable also established majority, referencing analysis the Peterson evidence place in the where the privacy of stating appellees have automatic private a resi- because it is was seized couple standing, proceeds appel- then go dence. Therefore we must forward expectation of lees’ reasonable that the warrant appellees’ address claim requirement ownership of with a some apartment was invalid be- to search the in the seized possessory interest sup- cause probable cause the affidavit of apartment. To Appellees in the wit: can- ille- included evidence porting the warrant expectation priva- have a of not gally during obtained does cy something they which claim not search. This, I belong respectfully sug- to them.7 hearing, a defen 12 At a very purpose of auto- gest, eliminates who articu standing dant who has has Rather, standing. matic the reasonable expectation privacy, lated a reasonable of privacy analysis would more indicating necessity for a war thereby whether the appropriately be addressed to rant, always challenge veracity can police conduct was it unreasonable because in the information contained affidavit legitimate expectation a violated probable supporting cause warrant. in Black’s Miller, v. 513 Pa. end, I analyze 11 To this would 1187, (1986); Common A.2d as case follows: Both Hall, wealth v. 451 Pa. governed in this searches issue case (1973); v. Mejia-Arias, law, which, indicated, by Pennsylvania 870, (Pa.Super.1999). confers automatic a standing on defendant “ the truthfulness ‘[T]he of a possessory accused offense to move to of recitals in a warrant follows from suppress against him. introduced Aguilar-Spinelli8 command Peterson, Sell, Thus, supra; supra. un- objective magistrate make “detached and authority der had appellees ” Mil determination” cause.’ automatic the search ler, Black’s A.2d at drugs supra quoting seizure of Hall, appellees found therein because both A.2d at 344. When supra al., Wayne majority 7. The also LaFave relies statements R. et Criminal Procedure 9.1, ed.1992) added). (2d (emphasis § appellees made at the time of the search at 463 Moreover, purpose denying ownership of automatic decide whole charge possessory that a appellees package. abandoned the If I issue, ownership not defendant does have to claim had to I reach this would find better I believe would be expressed by the contraband. we view Professor LaFave. many pressed very hard to find defendants aIf defendant claims derived illegal during ownership drugs who claim searched, premises from search. prevail appears will if it that he he not U.S., Spinelli 393 U.S. 89 S.Ct. premises prior abandoned the to the time Texas, (1969); Aguilar 21 L.Ed.2d 637 being objected the search to occurred. But U.S. S.Ct. L.Ed.2d expectation-of-privacy under the modem approach the abandonment must expec- subsequently terms aban- be examined in of reasonable flowing Aguilar-Spinelli test tation from conduct rather than in doned the in Illinois technical, event, Gates; sense. however, (1983); distinguished test abandonment must be L.Ed.2d 527 the Gates requires interest made still information contained mere disclaimer of search, police prior totality to the under a affidavit reliable standing. the better view does circumstances. defeat challenged, so (discussing Sun, Wong Commonwealth then in which producing bears the burden of evidence the police'unlawfully Toy’s premis- entered establishing the validity of the warrant by him, es and after illegally arrested showing that the evidence underlying the Toy his but implicated claimed innocence probable affidavit of cause is reliable. police Yee. The then Yee’s premis- entered Commonwealth v. Ryan, Pa.Super. there, es drugs and found which Yee said 407 A.2d citing he Toy Wong obtained Sun. The Hall, supra. See also Pa.R.Crim.P. Toy Court found stand- 323(h). object to the seizure of evidence case, 13 In this appellees challenged illegal from Yee entry because the into probable affidavit cause as defective Toy’s premises, arrest, by followed led because the evidence relied was al to the seizure evidence from Yee. The legedly obtained in an unconstitutional found, however, Wong Sun did manner, not because the affidavit con not have he could because tained unreliable As information. the ma object illegal to an search of another’s notes, jority correctly Fourth Amendment premises). protections, only which are protections ¶ According majority, Califor invoked, are, however, appellees personal nia federal law follows on issue of only and can asserted one who has standing. (Majority opinion at 1259-60 (Majority suffered the opinion violation. (citations omitted).) Furthermore, our su citing Carter, Minnesota preme recently in a case held such as U.S. 119 S.Ct. 142 L.Ed.2d 373 (1998).) foreign jurisdiction this that the law of the Additionally, Fourth Amendment necessarily applies violations do not legality render evi to determine the of a merely dence unreliable because it was Sanchez, search. obtained as result violation. , 716 A.2d Un 570 LaFave, Wayne al., R. et Criminal Proce law, der California and federal Barbara nd(2 ed.1992). 9.1, § dure at 461 only person Barsh was the with standing legality to raise explains of the California Professor LaFave the dis- illegally tinction between evidence seized search of Barbara based on a constitutional violation and evi- Barsh. If there is a standing question dence that is A per- unreliable as follows. case, therefore, presented it is that son may confess to a crime and implicate law, under California do not appellees another in crime as a result of a raise standing to a violation of Barbara the protections violation of afforded rights Barsh’s constitutional based on a Arizona, Miranda v. search that occurred in California. This is 1602, 16 L.Ed.2d 694 The confes- appellees’ standing distinct from to chal sion would therefore have been obtained lenge Philadelphia po the conduct implicated illegally. person by the searching lice in Philadelphia Black’s confession, who subjected to an arrest or evidence, seizing including confession, will, on based how- the package, therefrom. ever, lack the legali- found, however, 16 The trial court confession, ty of obtained violation attacking addition to the truthfulness of rights. another’s constitutional affidavit, in. an our facts recited su- implicated may, the confession court has also a defendant preme allowed however, raise his own Fourth Amendment to attack that led the search claim that the warrant arrest or to the the affidavit of supporting him is invalid because based unreliable Sanchez, supra at cause. See evidence if the the' obtained confes- (“The result of a using sion by physically psychologically LaFave, canine sniff constitutes admissible evidence coercive Criminal tactics. Proce- id., 9.1, 9.1, Pennsylvania, § § dure 461. See also both California and opinion “on whether no ically expressed a search warrant can be used long [Sanchez, the addressee sniff appellants so added); []”) legally (emphasis who two co-defendants package, conducted Bennett, Pa.Super. in at the time the present were (1976) (“the in A.2d use any reason- conducted] the search of information secured this Commonwealth in the able valid, legal, properly authorized through Express in a Federal sitting in jurisdiction in a not wiretap foreign is n. 716 A.2d at 1225 Id. at 579 n. office.” Pennsylvania anti- contravention of upon relied for cannot be 4. Sanchez not al wiretapping statutes would [which holding, its narrow proposition than other and ... wiretap], low such case. inapplicable and therefore in under a war Pennsylvania seized such ¶ conclusion, I In would reverse ]”). rant is admissible! its incorrect reliance trial court because of 17 The issue of that the warrants determine on Sanchez jurisdiction’s foreign legality invalid be- in issued Sanchez, not, however, in did arise in the search of the Califor- cause Bennett, supra, majority illegal. To the extent the nia was Corbo, Pa.Super. these lacked appellees finds that the cases which the Sanchez search, I legality of that Sanchez, supra, pack- relied. In court however, me, For agree. therefore would age searched in California was addressed peradventure that beyond appellees it is Sanchez, supra to one of defendants. ex- standing and possessed (appellant A.2d at Sanchez pectation was the to whom the testing This is sufficient to allow addressed). Bennett, supra, In the wire- warrants, and cause to secure in- tap Jersey was conducted New but appellees’ basis of this test that it is on the telephone cluded calls received from fail. claim must in Pennsylvania. to Bennett’s home made Bennett, Finally, 369 A.2d at 493. ¶21 respectfully I therefore concur legality court did not address the Corbo majority. result reached wiretap at in that because issue case parties argue illegality. did not its Corbo, 440 1214. A.2d at Furthermore, court supreme

Sanchez, supra, limited its re- specifically solely to

view the conflict laws to whether or California of a evaluating applied law Appellant, BAUER, Dennis pack- canine sniff. The canine sniff of was used age California Pennsyl- AREA EMERGENCY POTTSVILLE warrant to search SERVICES, INC., “if the decided that vania. court MEDICAL a/k/a Service, Appellee. that a of a sister state determine courts Lions Ambulance state, a search in that canine sniff Pennsylvania. Superior by of a sniff initiated propriety conducted within state’s officers and Argued June borders must be evaluated state’s 25, 2000. Aug. Filed Id. at the law of state.” suppres- remanding for further specif- proceedings, the Sanchez sion

Case Details

Case Name: Commonwealth v. Black

Court Name: Superior Court of Pennsylvania

Date Published: Aug 25, 2000

Citation: 758 A.2d 1253

Court Abbreviation: Pa. Super. Ct.