COMMONWEALTH of Pennsylvania, Appellee, v. Frank J. FERRETTI, Appellant.
Superior Court of Pennsylvania.
July 10, 1990.
577 A.2d 1375
Argued March 6, 1990.
Order vacated. Case remanded to the trial court for further proceedings consistent with this Opinion. Jurisdiction relinquished.
Before WIEAND, TAMILIA and POPOVICH, JJ.
POPOVICH, Judge:
This case involves an appeal from the judgment of sentence (aggregating 5-14 years imprisonment) for burglary, simple assault and recklessly endangering another person by the appellant, Frank J. Ferretti. We affirm.
The evidence, to be viewed in a light most favorable to the Commonwealth as the verdict-winner, reveals that in October of 1987, Joanne Jennings met the appellant at her sister‘s home. The next day, the two went on a date. This relationship lasted until Thanksgiving of 1987. At that time, Ms. Jennings informed the appellant she did not want to see him anymore. The appellant refused to accept this fact, and he continued to have contact with Ms. Jennings until December 31, 1987.
At approximately 1:30 a.m. on the 31st of December, 1987, there was a knock on Ms. Jennings’ apartment door. She was in bed at the time and did not answer. Eventually, the appellant broke into the apartment by knocking the front door off its hinges and breaking the lock in the process.
The appellant called out to Ms. Jennings, and, when she saw he was carrying a sawed-off shotgun, she became frightened and did not respond. The appellant, going from room to room, made his way to the bedroom. When Ms. Jennings asked what the appellant was doing in her apartment, he “just started getting really rough” with her. He began hitting Ms. Jennings, and as she told it in court:
... he was hitting me on the head with his hand, and this was going on ... for a couple [of] hours[, i.e.,] hitting me and ripping my clothing off and pulling my hair out ... I had a lot of bald spots in my head because of that at the time....
The appellant refused to accept the termination of the relationship. To exhibit his displeasure with Ms. Jennings, the appellant placed the loaded shotgun at her neck and said: “it would be very easy ... to pull the trigger back, that [Ms. Jennings] could just be blown away.” The appellant also threatened to kill Ms. Jennings. She was very scared, and she thought the appellant was going to shoot her.
The ordeal of physical and mental abuse lasted for several hours and culminated with the appellant forcing Ms. Jennings to have sex with him. Once the appellant had fallen asleep, the victim managed to escape to a friend‘s house, who, upon the victim‘s arrival, observed that the
The police drove to the victim‘s apartment with a warrant for the appellant‘s arrest. He was not on the premises, but the police did find the appellant‘s belt on an end table and his underwear, with the initials “FF“, were found on the floor next to the victim‘s bed.
On a tip from an anonymous informant, who at trial was stipulated by the prosecution and the defense to have been the victim‘s sister, the police went to Kathy Hummel‘s apartment to look for appellant. However, at first Hummel denied that the appellant was on her premises and demanded that the police secure a search warrant before entering the apartment. The police did obtain a search warrant and executed it during the evening of January 1, 1988. When the police entered Hummel‘s apartment, the appellant was found having a beer at the kitchen table. He was arrested and placed in handcuffs. A search of the apartment produced a sawed-off shotgun under the sofa in the living room. This was seized.
Prior to trial, a hearing was conducted in which the appellant sought to suppress the evidence seized on the grounds that the search warrant was defective.1 The motion to suppress was denied, and, following a three-day trial, the appellant was found guilty as charged and sentenced. This appeal ensued.
The appellant raises nine issues for our consideration, six of which center upon the validity of the search warrant, and found by the court below not subject to attack by the appellant because he lacked standing to assail it.
We deal, first, with the question of “standing“. The
The United States Supreme Court has held that the
Given that in this jurisdiction we have turned to federal law to develop a framework upon which “standing” to contest a search and seizure has evolved, it is only logical to examine the present status of that same body of law to guide us now, for there is no case in Pennsylvania similar to the one before us. Having said that, we observe that in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court had occasion to re-examine Jones in the context of a warrantless search of an automobile, and the seizure of a sawed-off shotgun and shells from its interior.
The petitioners in Rakas were passengers in the vehicle stopped and searched because it matched a get-away vehicle used in the robbery of a clothing store. Neither petitioner claimed ownership of the vehicle or the weapon and the shells seized. When the petitioners attempted to exclude such evidence from trial, the court denied the motion to
Before the United States Supreme Court, the petitioners argued, in the alternative, that they had standing to object to the search under Jones because they were “legitimately on [the] premises” at the time of the search. In analyzing this argument, the Court made it clear that the label we affix to our right to challenge (i.e., “standing“,) in a motion to suppress is not of paramount importance. Rather, the substantive question was one of whether the proponent of the motion to suppress had his/her own
Since “’
To effectuate the true intent of the
The reassessment of the concerns of one‘s rights, to be free from unwarranted government intrusion, by excising certain phraseology from the triggering mechanism permitting
... the Jones statement that a person need only be “legitimately on premises” in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), provides guidance in defining the scope of the interest protected by the
Fourth Amendment . * * * the Court in Katz held that capacity to claim the protection of theFourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.... the phrase “legitimately on premises” has not been shown to be an easily applicable measure of
Fourth Amendment rights so much as it has proved to be simply a label placed by the courts on results which have not been subjected to careful analysis. We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one‘s expectation of privacy, but it cannot be deemed controlling.
439 U.S. at 143, 147-148, 99 S.Ct. at 430, 432-433 (Citations omitted; Footnotes omitted; Emphasis added).
In light of the meaningful exegesis of the
The means by which we traverse the contours of the
Sell in no sense, however, sounded the death knell for the “reasonable expectation of privacy” criterion, which is to be used in tandem with “whether that expectation is one that society is prepared to recognize as reasonable“, in deciding whether one‘s privacy has been violated in all other instances. See, e.g., Commonwealth v. Blystone, 519 Pa. 450, 456, 549 A.2d 81, 87 (1988) (Conversation electronically recorded between the defendant and a police informant was assessed as to its suppressibility under
We have been presented with no persuasive argument to expand Sell‘s discontinuance of the “reasonable expectation of privacy” in a possessory offense context to one where “unreasonable” government intrusion is the focal point of inquiry once “standing” is established.3 See Minnesota v. Olson, — U.S. —, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990) (Defendant‘s status as an overnight guest was alone sufficient to show that he had an expectation of privacy in the home of a friend that society was prepared to recognize as reasonable, and, thus, accorded him standing to challenge successfully evidence seized and introduced against him at trial so as to warrant the awarding of a new trial); Evans, supra.
At bar, we had testimony that the appellant arrived at Kathy Hummel‘s apartment between 5:00-5:30 p.m. on January 1, 1988, with two six packs of beer, but no shotgun
It was Ms. Hummel‘s testimony that the appellant, albeit he did not have a key to her premises, had been found, on occasion, in her apartment upon her arrival home. She did not object to this because, as she stated, “he‘s allowed to come in“. They were friends, the appellant knew her daughter and Hummel and the appellant had a brother/sister relationship. Yet, Ms. Hummel did remark that when she left the apartment complex, as compared to just going to do her laundry one-half block away from the building where she lived, she would lock her door.
Based on the record before this Court, we can state that the appellant had no interest in connection with the searched premises that gave rise to ” ‘a reasonable expectation [on his part] of freedom from government intrusion’ upon those premises.” Compare Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972), quoting Mancusi, supra, 392 U.S. at 368, 88 S.Ct. at 2123; see also State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979). We have been presented with no case law by the appellant requiring us to hold otherwise. As such, we find that the court below was correct in concluding that it was unnecessary to decide whether the search of Ms. Hummel‘s apartment might have violated the rights secured to the appellant, be they via the
Judgment of sentence affirmed.
WIEAND, J., files a concurring opinion.
WIEAND, Judge, concurring.
I concur in the decision of the majority to affirm the judgment of sentence. However, I am unable to agree that appellant lacked standing to contest the seizure by police of a sawed-off shotgun which was lying beneath a sofa in the
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), on which the majority relies, the Supreme Court of the United States appears to have limited the requirements for standing where one is lawfully present in property of another. The Court there said:
In Jones [v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960),] petitioner was present at the time of the search of an apartment which was owned by a friend. The friend had given Jones permission to use the apartment and a key to it, with which Jones had admitted himself on the day of the search. He had a suit and shirt at the apartment and had slept there “maybe at night,” but his home was elsewhere. At the time of the search, Jones was the only occupant of the apartment because the lessee was away for a period of several days. 362 U.S., at 259, 4 L.Ed. 2d 697, 80 S.Ct. 725 [730], 78 A.L.R.2d 233. Under these circumstances, this Court stated that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them, “anyone legitimately on premises where a search occurs may challenge its legality.” Id., at 267, 4 L.Ed.2d 697, 80 S.Ct. 725 [734], 78 A.L.R.2d 233. Petitioners argue that their occupancy of the automobile in question was comparable to that of Jones in the apartment and that they therefore have standing to contest the legality of the search—or as we have rephrased the inquiry, that they, like Jones, had their
Fourth Amendment rights violated by the search.We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal
Fourth Amendment rights if the search in question was unlawful. Nonetheless, we believe that the phrase “legitimately on premises” coined in Jones creates too broad a gauge for measurement ofFourth Amendment rights.
For example, applied literally, this statement would permit a casual visitor who has never seen, or been permitted to visit the basement of another‘s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search. Likewise, a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search. The first visitor would have absolutely no interest or legitimate expectation of privacy in the basement, the second would have none in the house, and it advances no purpose served by the
Fourth Amendment to permit either of them to object to the lawfulness of the search.We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the
Fourth Amendment protects him from unreasonable governmental intrusion into that place. See 362 U.S., at 263, 265, 4 L.Ed.2d 697, 80 S.Ct. 725 [732], 78 A.L.R.2d 233. In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control. Id., at 266, 4 L.Ed. 2d 697, 80 S.Ct. 725 [733], 78 A.L.R.2d 233; see Mancusi v. DeForte, 392 U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968); Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967); Silverman v. United States, 365 U.S. 505, 5 L.Ed.2d 734, 81 S.Ct. 679, 97 A.L.R.2d 1277 (1961). But the Jones statement that a person need only be “legitimately on premises” in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.....
Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expecta-
tion of privacy in the premises he was using and therefore could claim the protection of the
Fourth Amendment with respect to a governmental invasion of those premises, even though his “interest” in those premises might not have been a recognized property interest at common law. See Jones v. United States, 362 U.S., at 261, 4 L.Ed.2d 697, 80 S.Ct. 725 [731], 78 A.L.R.2d 233.
Id. 439 U.S. at 141-143, 99 S.Ct. at 429-430, 58 L.Ed.2d at 399-402 (footnotes omitted). See generally: 4 W. LaFave, Search and Seizure, §§ 11.3(b) and (c) (1987).
Instantly, Kathy Hummel testified that she and appellant were close friends and that they had “like a brother/sister relationship for the five years we‘ve known each other.” Her testimony also disclosed that appellant had been a frequent visitor in her apartment and was allowed to enter the apartment even when she was not at home. On the night when the police searched the apartment, appellant had arrived at or about 5:30 p.m., and he and Hummel had been sitting at the kitchen table talking, drinking beer and listening to music. The police search of the apartment was not made until 11:00 p.m., approximately five and one-half (5 1/2) hours after appellant‘s arrival. Under these circumstances, I would hold that appellant had a legitimate expectation of privacy in the apartment of Kathy Hummel so as to confer upon him standing to contest the police seizure of the sawed-off shotgun as a violation of the
Appellant‘s lawful presence on the premises was also sufficient to confer upon him standing pursuant to
Id., 465 Pa. at 621-622, 351 A.2d at 268 (footnotes omitted) (emphasis added). See also: Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Commonwealth v. Peterkin, 511 Pa. 299, 309-310, 513 A.2d 373, 378 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987).
In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), the Supreme Court held, as a matter of state constitutional law, that a person having a possessory interest has automatic standing to contest a search and seizure of evidence. In reaching this decision, the Sell Court refused to adopt the rationale of the United States Supreme Court in Rakas v. Illinois, supra, and instead, elected to afford citizens greater protection under the Pennsylvania Constitution, explaining as follows:
We decline to undermine the clear language of
Article I, section 8 by making theFourth Amendment‘s amorphous “legitimate expectation of privacy” standard a part of our state guarantee against unreasonable searches and seizures. We do so not only because we find the United States Supreme Court‘s analytical distinction between “standing” and “threshold substantive question,” see Rakas, supra 439 U.S. at 139 n. 7, 99 S.Ct. at 428 n. 7, unhelpful to our interpretation ofArticle I, section 8‘s protection, but also because we believe 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.
Article I, section 8 of the Pennsylvania Constitution , as consistently interpreted by this Court, mandates greater recognition of the need for protection from illegal governmental conduct offensive to the right of privacy.
An individual‘s effects and possessions are constitutionally protected from unreasonable search and seizure as well as his person.
U.S. Const.Amend. IV ,Pa. Const. art. I, § 8 . This protection does not depend on the physical presence or physical absence of the individual owner. ‘So long as a person seeks to preserve his effects as private, even if they are accessible to ... others, they are constitutionally protected. Stated differently, a person must maintain the privacy of his possessions in such a fashion that his “expectations of freedom from intrusion are recognized as reasonable.“’ Commonwealth v. Platou, 455 Pa. 258, 266-267, 312 A.2d 29, 34 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). (Emphasis in original). Commonwealth v. White, 459 Pa. 84, 89-90, 327 A.2d 40, 42 (1974).Moreover, we have held that personal possessions remain constitutionally protected under
Article I, section 8 until their owner meaningfully abdicates his control, ownership or possessory interest therein. Commonwealth v. White, supra; see Commonwealth v. Platou, supra. We remain convinced that ownership or possession of the seized property is adequate to entitle the owner or possessor thereof to invoke the constitutional protection ofArticle I, section 8 by way of a motion to suppress its use as evidence. See also, State v. Alston [88 N.J. 211, 440 A.2d 1311 (1981)], supra.Since we regard ownership or possession of the seized property as sufficient to confer standing to challenge a search and seizure under
Article I, section 8 , it necessarily follows that a person charged with a possessory offense must be accorded “automatic standing” adopted by this Court in Commonwealth v. Knowles [459 Pa. 70, 327 A.2d 19 (1974)], supra.
Commonwealth v. Sell, supra 504 Pa. at 66-68, 470 A.2d at 468-469.
In following the rationale of Rakas, the majority in this case suggests that it is not abandoning the test for standing
Notwithstanding my disagreement with the majority on the issue of standing, I concur in the decision to affirm the judgment of sentence. After carefully reviewing the record and testimony at the suppression hearing, I am satisfied that the warrant authorizing the search of Hummel‘s apartment was validly issued, under seal, upon probable cause, sufficiently named the shotgun as an item to be seized, and was properly executed by police. Because there was no basis for suppressing the shotgun which was seized, therefore, I agree that the judgment of sentence must be affirmed.
Notes
The United States Supreme Court in Brown [v. U.S., 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)], supra, has outlined the perimeters of what shall be deemed essential to a finding that the criminal defendant‘s own personal rights lay at the core of the improper and proscribed governmental action, thereby justifying the invocation of the exclusionary rule. In the instant case, appellant Treftz fails to meet any of the Brown standards.
Under Brown, a defendant must allege one of the following “personal” interests in order to establish standing: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged include as an essential element of the prosecution‘s case, the element of possession at the time of the contested search and seizure; or (4) a proprietory or possessory interest in the searched premises.
465 Pa. at 617, 351 A.2d at 268 (Footnotes omitted).
Instantly, the defendant was neither charged with a crime of which possession was an element, nor did he claim ownership or possession of the seized evidence. Thus, even under Sell, the appellant does not have “standing“, be it “automatic” or otherwise, to contest the evidence seized at Hummel‘s apartment. Accordingly, we will not permit the appellant to secure “standing” under a distorted reading of Sell by extending its perimeters to encompass facts not involving a possessory offense. We are not convinced to do so at this time in light of the continuing reference and use of the “reasonable expectation of privacy” as a viable prong in this Commonwealth to preserve one‘s right to challenge searches and seizures under