COMMONWEALTH оf Pennsylvania, Appellee, v. Larry SELL, Appellant.
Supreme Court of Pennsylvania.
470 A.2d 457
Decided Dec. 30, 1983.
Argued Oct. 27, 1983.
Accordingly, I dissent to the vacation of appellant‘s death sentence and would hold that appellant was properly and fairly sentenced under the Act of September 13, 1978. I concur in the affirmance of appellant‘s convictions.
Robert L. Steinberg, Asst. Dist. Atty., for appellee.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON and ZAPPALA, JJ.
OPINION OF THE COURT
NIX, Justice.
In this appeal we have agreed to decide whether, under
I.
On December 11, 1978 the Allentown Police Department executed a search warrant at an amusement arcade known as Games Galore located in the city of Allentown. The items set forth in the search warrant included firearms stolen in a recent burglary. As a result of the search, the police retrieved a number of firearms. These firearms were located on open shelves beneath the cоunter in the arcade. It was later established that this area was one to which all of the employees had access.
Appellant, who was a partner in the business, was not present at the time that the search was conducted.1 Subsequent to the search appellant was arrested and charged with the crimes of receiving stolen property and criminal conspiracy. The firearms recovered during the search formed the basis for the charge of receiving stolen property. Appellant, through his counsel in a pre-trial motion, sought to suppress the use of the fruits derived from the search, contending that the search warrant was defective. The court of common pleas determined that appellant had “automatic standing” to assert the illegality of the search and, further concluding that the warrant was defective
In undertaking our interpretation of that section of the state constitution, we find guidance in the admonitions of Mr. Justice Brennan of the United States Supreme Court:
[T]he decisions of the Court are not, and should nоt be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.
Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 502 (1977). Accordingly, we shall begin our discussion by analyzing the federal case law in the area of Fourth Amendment standing.
II
It is appropriate to begin by tracing the historical development of the concept of Fourth Amendment2 standing.
The federal courts’ early Fourth Amendment standing tests, known collectively as the “trespass doctrine“, were based solely on the relative strength of the defendant‘s possessory interest in the items seized or the property searched. See White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 33 (1970); Edwards, Standing to Suppress Unreasonably Seized Evidence, supra; Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings, and the Reasonable Expectation of Privacy, supra. In essence, these rules found that the “personal” requirement was satisfied by a showing of a property or possessory right in the object seized or the place searched. Accordingly, the federal courts of appeals generally required an affirmative claim of ownership or possession of the seized property or a substantial possessory interest in the premises searched to establish Fourth Amendment standing. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); see generally Annot., 4 L.Ed.2d 1999 (1960); Annot., 96 L.Ed. 66 (1952).
As the term “trespass doctrine” implies, the federal courts relied on the common law of property in determining the question of standing:
The requirement of a showing of ownership or possession of the property seized created a dilemma for defendants accused of crimes of which possession is itself an element. Judge Learned Hand articulated the position of such defendants in Connolly v. Medalie, 58 F.2d 629 (2d Cir.1932):
Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma. Id. at 630 (emphasis added).
Under the “trespass doctrine‘s” formulation of standing, therefore, a defendant charged with a possessory crime who sought to suppress seized evidence was obligated to
[T]he “unreasonable searches and seizures” condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man “in a criminal case to be a witness against himself,” which is condemned in the Fifth Amendment, throws light on the question as to what is an “unreasonable search and seizure” within the meaning of the Fourth Amendment. Id. at 633, 6 S.Ct. at 533.
These questions relating to the efficacy of the “trespass doctrine” and the Judge Hand “dilemma” were first squarely addressed by the United States Supreme Court in 1960 in Jones v. United States, supra. Prior to that time, the law had evolved through lower federal court decisions.4
In Jones, the defendant, charged with drug offenses, had been denied standing to object to the search of an apartment in which he was present as an invitee and in which narcotics were found. The government had challenged his standing on the grounds that he “alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an ‘invitee or guest‘“. Id. 362 U.S. at 259, 80 S.Ct. at 730. After noting the lower federal courts’ rеquirement that a defendant allege ownership or possession of the seized property or a substantial possessory
Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding, but also with the encouragement that he perjure himself if he seeks to establish “standing” while maintaining a defense to the charge of possession. Id. at 261-262, 80 S.Ct. at 731.
The Jones Court rejected the inevitability of Judge Hand‘s “dilemma,” concluding that the charge of possession itself “eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized....” Id. at 263, 80 S.Ct. at 732. The Court reasoned that to hold to the contrary would permit the government to benefit from contradictory positions in obtaining a conviction:
Petitioner‘s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government.
Thus Jones developed a rule, known as “automatic standing“, that the mere charge of a defendant with a possessory offense conferred standing to assert an alleged Fourth Amendment violation. See, e.g., United States v. Colacurcio, 499 F.2d 1401 (9th Cir.1974); United States v. Hearn, 496 F.2d 236 (6th Cir.1974), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974); United States v. Smith, 495 F.2d 668 (10th Cir.1974); United States v. Moody, 485 F.2d 531 (3d Cir.1973); United States v. Pui Kan Lam, 483 F.2d 1202 (2nd Cir.1973); United States v. Price, 447 F.2d 23 (2nd Cir.1971), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971).
In an equally important development the Jones Court found as a second ground for the defendant‘s Fourth Amendment standing the mere fact that he was lawfully on the premises. In doing so the Court rejected earlier requirements of property ownership:
[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.... Distinctions such as those between “lessee,” “licensee,” “invitee” and “guest,” often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards. Id. 362 U.S. at 266, 80 S.Ct. at 733.
Instead, the court expressed the view that “anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are
The Jones decision represents the high-water mark of access in the context of capacity to challenge an asserted Fourth Amendment violation. Defendants charged with possessory offenses were provided “automatic” standing on the strength of the charge itself. Even where actual proof of standing was required it could be satisfied by the very liberal test of showing that the defendant was legitimately on the premises where the search occurred.6
III.
The concept of a “legitimate expectation of privacy,” ultimately employed by the Unitеd States Supreme Court to circumscribe Fourth Amendment protection and to render the standing inquiry ineffectual under the resulting Fourth
This holding was immensely significant in the area of electronic surveillance, because it provided Fourth Amendment coverage in an area where protection was previously not afforded. However, in what proved to be an even more far-reaching consequence, Justice Harlan, in а concurring opinion in Katz, first began the articulation of the “reasonable expectation of privacy” concept, and suggested its applicability beyond merely electronic surveillance cases.
As the Court‘s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “rеasonable.” Katz v. United States, supra at 361, 88 S.Ct. at 516 (Harlan, J., concurring).
In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), which followed Katz, Justice Harlan, writing for six members of the Court, replaced the Jones “legitimately on the premises” test with his “reasonable expectation of privacy” rule.9 Implicit in the DeForte decision was that the two tests were not inconsistent.
must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and
The impact of the Rakas Court‘s pronouncements upon Fourth Amendment jurisprudence cannot be minimized. Whereas that Amendment declares that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,”
The distinctions the Court would draw are based on relationships between private parties, but the Fourth Amendment is concerned with the relationship of one of those parties to the government. Id. at 167-168, 99 S.Ct. at 443-444 (White, J., dissenting).
The Rakas “legitimate expectation of privacy” concept was subsequently employed by the United States Supreme Court to abolish the other aspect of Jones, “automatic standing,” in Salvucci v. United States, supra.11 In Salvucci, the Court held that “defendants charged with crimes
On the same day the opinion in Salvucci was filed, the Supreme Court, again speaking through Justice Rehnquist, further refined its Rakas standard and the manner in which it is to be applied in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).13 In Rawlings, it became clear that the right to assert Fourth Amendment violations
Had petitioner placed his drugs in plain view, he would still havе owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given “standing” in such a case to challenge a “search” that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner. Id. at 106, 100 S.Ct. at 2562.
Thus after Rakas, Salvucci, and Rawlings the ability to prove a “legitimate expectation of privacy” by the “totality of the circumstances” is the sole determinant of the scope of protection afforded under the Fourth Amendment to the United States Constitution. The United States Supreme Court has chosen to limit the availability of relief by significantly narrowing the substantive scope of the protection provided by the Fourth Amendment. See Slobogin, Capacity to Contest a Search and Seizure: the Passing of Old Rule and Some Suggestions for New Ones, 18 Am.Crim.L.Rev. 387 (1981). Critical to the enjoyment of the protection is the demonstration of the exclusivity of the control of the defendant and the diminution of the concern as to unlawful and unreasonable governmental intrusion.
IV.
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Pa. Const. Art. I, § 8 .
While minimum federal constitutional guarantees are “equally applicable to the [analogous] state constitutional provision,” see, e.g., Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), the state has the power to provide broader standards than those mandated by the federal Constitution:
It is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. PruneYard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), cert. granted sub nom. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453, subsequently vacated and denied,
406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972) (“it appearing that the judgment below rests upon an adequate state ground“). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See, e.g. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n. 3 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). Commonwealth v. Tate, 495 Pa. 158, 169-170, 432 A.2d 1382, 1387-1388 (1981).
This Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. See, e.g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). In Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980), this Court declined to follow the United States Supreme Court‘s Fourth Amendment decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), in construing
Our task of interpretation is furthеr facilitated by the existence of prior decisions of this Court construing the protection afforded by
In Jones, the Supreme Court of the United States held, inter alia, that in order to have standing to assert a Fourth Amendment violation, one accused of a possessory crime is not required to assert an interest in the premises searched or the property seized. This Court has not hesitated to give effect to Jones. See, e.g., Commonwealth v. Weeden, 457 Pa. 436, 448-451, 322 A.2d 343, 349-351 (1974); Commonwealth v. Dembo, 451 Pa. 1, 7, 301 A.2d 689, 693 (1973); Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969) (Opinion in Support of Affirmance) (Eagan, J., joined by O‘Brien & Roberts, JJ.); cf. Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). Id., 459 Pa. at 76, 327 A.2d at 21-22.
After examining the Jones Court‘s governmental-contradiction rationale for conferring “automatic standing“, discussed in Part II, supra, we found the reasoning “compel-
Like the Supreme Court of our sister state, New Jersey, we find the United States Supreme Court‘s grounds for abandoning the Jones “automatic standing” rule unpersuasive. See State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981). Rather we are convinced, as is the New Jersey Supreme Court, that
[t]he automatic standing rule is a salutary one which protects the rights of defendants and eliminates the wаsteful requirement of making a preliminary showing of standing in pretrial proceedings involving possessory offenses, where the charge itself alleges an interest sufficient to support a Fourth Amendment claim. [Salvucci, supra, 448 U.S. at 97, 100 S.Ct. at 2556, 65 L.Ed.2d at 632 (Marshall, J., dissenting).]
We decline to undermine the clear language of
An individual‘s effects and possessions are constitutionally protected from unreasonable search and seizure as well as his person.
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
Since we regard ownership or possession of the seized property as sufficient to confer standing to challenge a search and seizure under
V.
In the instant case, appеllant was charged with receiving stolen property,
(a) Offense defined.—A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition.—As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.
From the definition of “receiving” in section 3925(b), it is clear that possession is an essential element of the crime charged herein. See also Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978). We therefore conclude that appellant is entitled to “automatic standing” under
Accordingly, the Order of the Superior Court is reversed and the case is remanded to the Superior Court.
MCDERMOTT and HUTCHINSON, JJ., file dissenting opinions.
MCDERMOTT, Justice, dissenting.
Since we are bound by the United States Supreme Court‘s decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), I see no reason to adhere to the legal fiction of automatic standing. Both the Sim-
I wish to emphasize, however, that this protection, in whatever form it takes, should not be construed as a license to lie, for this Court has previously held that a defendant‘s suppression court testimony may be used by the Commonwealth in cross-examination. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).1
HUTCHINSON, Justice, dissenting.
I respectfully dissent. It is of course true that we may provide through our state constitution independent guarantees of procedural rights more expansive than their federal counterparts. PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). I would decline to exercise that power in the present case, and would adopt the reasoning of the United States Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), abolishing the doctrine of “automatic standing” to raise Fourth Amendment challenges to searches in cases involving possessory crimes, first enunciated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
The majority has not shown, nor can I discern, a textual distinction between
The “dilemma” identified in Jones, that a defendant charged with a possessory offense might only be able to establish his standing to challenge a search and seizure by giving self-incriminating testimony admissible as evidence of his guilt, was eliminated by our decision in Simmons v. United States, [390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)].
..
This Court has identified the self-incrimination rationale as the cornerstone of the Jones opinion. See Brown v. United States, [411 U.S. 223,] at 228, 36 L ED 2d 208, 93 S Ct 1565 [at 1568] [1975]. We need not belabor the question of whether the “vice” of prosecutorial contradiction could alone support a rule countenancing the exclusion of probative evidence on the grounds that someone other than the defendant was denied a Fourth Amendment right. The simple answer is that the decisions of this Court, especially our most recent decision in Rakas v. Illinois, 439 US 128, 58 L Ed 2d 387, 99 S Ct 421 (1978), clearly establish that a prosecutor may simultaneously maintаin that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction.
448 U.S. at 89-90, 100 S.Ct. at 2551-2552.
The reasons for the “automatic standing” rule having lost their vitality, I would hold that the rule itself “has outlived its usefulness.” Id. at 95, 100 S.Ct. at 2554. Moreover, absent compelling reason, textual or otherwise, I believe the interests of this nation are best served by maintaining common standards of constitutional law throughout its separate jurisdictions. I would adopt the reasoning of Salvucci, overrule Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974), to the extent inconsistent herewith and affirm Superior Court.