*1 A.2d 1246 Pennsylvania COMMONWEALTH Appellant. LATSHAW, A. Bruce Pennsylvania. Superior Sept. *2 appellant. College, for Donovan, F. State
William ap- Atty., College, for State Price, C. Kent Asst. Dist. pellee. JACOBS, Judge, WATKINS, President and
Before VOORT, PRICE, and HOFFMAN, CERCONE, der VAN SPAETH, JJ. VOORT, Judge:
VAN der judgment of sen- Appeal to our Court from is taken September 5,1974, following a trial before tence rendered Appellant jury. had Judge Campbell, Paul without R. of charged With, indicted for Violation arrested, been Drug, Substance, Device and Cosmetic “The Controlled suppress 13(a) (30).1 evidence Act”, A motion section prior filed and criminality to arrest had béen seized of adjudged guilty Appellant prior was denied trial. $2,500.00 to un- fine of pay and a sentenced to costs 780.113(a)(30> § § April 35 P.S. P.L. Act of County jail for not less dergo imprisonment in the Centre twenty-three months. more than than one nor on or about November facts show Mr. portion her house tо rented a Miss Minnie Bubb husband. Hinds, niece and who are her Mrs. Robert per month oral, in an amount The lease was $100.00 uncon- Hinds’ including It is both her and Mr. utilities. Hinds permitted the testimony that Miss Bubb tradicted gratuitous nearby barn, such was but thаt the use of her as fact, Hinds only of the lease. and not a be- this gratuitously made use of barn well others as fore of 1972. November arrangement him between Hinds testified to an
Mr. appellant apрellant whereby permitted use Hinds storage items, and bulk the loft of certain permission shipment. paid per It Hinds’ was $75.00 appellant operated. alone under which *3 having July Bubb, noticed Miss On or about inquiry, strangers making no in the barn but and about building and vicinity of that went to the immediate Subsequently, spotted greenish quantity of “weeds”. bag paper sister, barn, found a with her she entered “weeds”, Miss Police. of these and called State permission them to search gave Police for her to State proved (later pounds marijuana barn, wherein footlockers. so) in to be was found seven cartons and two pаckaging curing of mari- Other material used and juana was found and seized.
Appellant argues that now warrantless proscribed for consequent the bam seizure should be permission from use the bam cаme the reason that his expectation structure, which lessee had an lessee of building protected from war- that his use of the would be argues rights, Appellant as that his rantless searches. seizurе, stem well to contest the search and as interest guest rights, he himself a from lessee calls Hinds’ Appellant argues that further or invitee of the lessee. “joint opining control in lower court erred аpplies Bubb and part, e., Miss doctrine” i. both that Miss Bubb to the end Hinds had control of the barn argues grant Appellant permission could to search. thereby re- had Miss Bubb never used structure authority consequеntly no linquished control of it had permission grant to search. testimony case thorough study of this A of the only gratuitous leads to the conclusion that Hinds us Bubb, own license use Miss Minnie er, custody control relinquished any nеver indicia rights clearly her to al within barn. She ar to make individuals to use the whatever low only rangements did she'liave she to that Not chose end. joint user of ownership she was a but also structure, of Cоmmonwealth and under the joint Pa. 343, (1971), the A.2d consent to a search. Whatever user or custodian can protection of tights Amendment Hinds had to the Fourth subject to his goods barn, goods or of the there his аs custody, may the consent to search be lost means of DeForte, 392 U.S. given by joint user. Mancusi (1968). The as facts 20 L.Ed.2d S.Ct. inwas may give the conclusion that the barn rise to well having leased Bubb, not the exclusive control of Miss she property her thus anyone. Her consent to search The hold requirement waives the of a search Platon, ing of Commonwealth v. know inapposite (1973), in that Miss Bubb did *4 footlockers, cartons, might the
who
be
owner
it is un
knowledgе
lacking,
is
such
materiel. Where
frame a search
expect
to be able
reasonable to
valid,
to the search
The consent of
owner
Pa.Super.
Anderson, 208
in Commonwealth v.
as was
323,
(1966).
Hоlding Bubb’s consent that Miss proper, we find valid, and the seizure contraband
237 Hinds’ use of the bam give was not such as to rise to a protection against Fourth Amendment unreasonable search thus, in seizure him alоne. Holding we need argument address the further toas stand- ing allegedly to raise issue of invalid search and seizure.
Judgment of sentence affirmed. J., opinion files in
HOFFMAN, dissenting which SPAETH, J., joins.
HOFFMAN, Judge (dissenting):
Majority
holds
Miss Bubb had
authorize a
on
barn located
her
Coun-
Centre
ty
agree
Cuрp,
farm.
with that
Frazier v.
conclusion.
(1969);
U.S.
S.Ct.
Com-
L.Ed.2d
(1971).
monwealth
Initially, except paper “weed” discovered police, Minnie sack Bubb which led her call to *5 way private nets
this case in no
involves a
search that
Pa.Super.
Kozak,
Commonwealth
contraband. See
v.
Eshelman,
(1975);
This conclusion is Platou, 260- decision in Commonwealth v. (1973): “At the time of the search- friend, appellant guest apartment of his was a by marijuana sale of On the basis of a Robert Wandеr. police agent, arrest for him and an warrant Wander were, premises for his obtained. a search warrant police place accom- at his of work and arrested Wander time, proceeded apartment. this panied by him to his At Ap- appellant’s police knowledge of existence. had no police apartment, proaching the informed Wander police ar- visiting he had a friend him. When rived, they entered. read warrant Wander police that the an- record does establish
[T]he they everything in the authority to search nounced appellant lying apartment two suitcases and that claimed Despite being on notice on the floor . : . were his. Wander, belong the suitcases did not initiating began searching simultaneously with their them appellant’s apаrtment. suit- one of they single marijuana. found a ounce of cases attempts justify search of its “The Commonwealth ground au- solely that was on suitcases argues It that because thorized a valid pеrson lo- separated from suitcases were apartment, they properly cated within Wander’s were disagree. We searched.
“The of search suitcase the under apartment seаrch is analo- warrant Wander’s gous those to which consent searches situations in have place been the or thing because invalidated searched possession nonconsenting exсlusive of a control party, party the consenting not did ‘an inde- have ’ pendent right of to . . his own to consent seizure. Storck, v. 275 A.2d Commonwealth Pa. (1971) by It is controlled omitted]. [citations
same The reasоning rationale. of these ‘consent’ search person cases is that cannot waive the Fourth Amend- respect rights of with property ment another owned or possessed by person.” that other view, the my case is instant controlled Platou.
Despite premises, Wander’s Platou control did lose his not privacy. fourth amendment In the case, Miss instant Bubb knew that her niece and her hus- barn band used thе their friends seen the area infer, therefore, of the barn. She could foot- lockers and cartons were not property. abandoned That is, loft, by boxes and footlockers stored in a thеir nature, expectation show pri- that their owner has an concerning vacy Further, view contents. was not unreasonable. He had entered into financial arrangement with husband, legally the niece’s on the premises, States, to store v. Katz United boxes.
U.S. (1967). 88 S.Ct. L.Ed.2d Majority attempts distinguish Platou from the instant case as holding follows: “The Commonwealth Platou, [supra], inapposite is in that Miss Bubb did not might footlockеrs, know who be the cartons, owner of the knowledge lacking, and materiel. Where such is un- expect police reasonable to to be to frame a search able 1247). (At simply warrant.” prоvided, true, This is probable search.1 cause to course, police have that the provides that: “Each 2005, Pa.R.Crim.P., Rule warrant shall: issuance;
“(a) specify date time “ seized; property identify tо be (b) person or particularity the “(c) name or describe with also, searched; place See Commonwealth be . . (1975). That Pa.Super. 102, Kaplan, despite procure the fact is, pоlice may warrant suspected contraband. they not know owner do a war- case, the obtained could have In the instant suspect boxes by showing probable cause to rant they not re- mаrijuana; were and footlockers contained the contraband. appellant owned quired to swear that *7 judgment of sentence Therefore, I would reverse trial. and order a new Opinion.
SPAETH, Dissenting J., joins in this Pennsylvania COMMONWEALTH BROWN, George Appellant. W. Pennsylvania. Superior 1, 1976. Submitted March Sept. 1976. Decided case, necessary deter- it is not Under the facts of instant probable ap- police in cause mine whether the fact had pellant’s belongings.