# Commonwealth v. Davis > Superior Court of Pennsylvania · November 24, 1999 · 1999 Pa. Super. 289 URL: https://www.frixlaw.com/law-library/cases/9629578 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Derrick DAVIS, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** November 24, 1999 - **Citations:** 1999 Pa. Super. 289; 743 A.2d 946; 1999 Pa. Super. LEXIS 4041 - **Precedential status:** Published - **Opinion:** Concurring in part by Melvin - **Judges:** Popovich, Melvin, Cirillo - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629578 ## How later opinions describe it (automated extraction) - holding that evidence was sufficient to prove constructive possession *304over drugs found in common areas of an apartment where the defendant entered the apartment using his own key, and possessed $ 800 in cash on his person, and police recovered [the] defendant's identificat… - holding that evidence was sufficient to prove constructive possession over drugs found in common areas of an apartment where the defendant entered the apartment using his own key, and possessed $800 in cash on his person, and police recovered defendant’s identification badge, … - holding evidence was sufficient to prove constructive possession of drugs found in common areas of apartment where, inter alia, defendant entered apartment using his own key, possessed $800 in cash on his person, and police recovered defendant’s identification badge, size-appr… ## Opinion text Concurring and Dissenting Opinion by ORIE MELVIN, J. ¶ 1 I agree with the majority that the evidence was sufficient to sustain the Appellant’s conviction for possession of a controlled substance. However, I respectfully dissent from the majority’s conclusion that the police’s entry into apartment 401 violated the Appellant’s constitutional rights of privacy. ¶ 2 “[A] warrantless search may be made with the consent of a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Commonwealth v. Gibbons, 379 Pa.Super. 285 , 549 A.2d 1296, 1300 (1988), appeal denied, 522 Pa. 601 , 562 A.2d 825 (1989). However, absent abandonment, a landlord’s consent to a search of leased premises is generally not effective against a tenant. Commonwealth v. Berry, 265 Pa.Super. 319 , 401 A.2d 1230 , 1232 n. 3 (1979); Commonwealth v. Lowery, 305 Pa.Super. 66 , 451 A.2d 245 (1982). ¶ 3 I believe the facts of this particular case present an exception to the general rule prohibiting a landlord from consenting to a search of a tenant’s premises. Clearly, this is not a case where a landlord who retains a general right to inspect and has no knowledge of any illegal activity consents to the search of a tenant’s property. See Commonwealth v. Berry, supra, (holding lessor lacked authority to consent to police search of garages leased by defendant when lessor’s inspection right was narrow in scope and did not rise to the level of joint control which is necessary for valid consent by a joint possessor). In such a case, the consent would undoubtedly be invalid. In this case, the Appellant had notice Mr. Taylor would be entering his premises. In spite of this notice, the Appellant permitted illegal substances and drug paraphernalia to be displayed in plain view. Upon these facts, I find the Appellant “assumed the risk” that Mr. Taylor might permit the premises to be entered and searched. United States v. Matlock, 415 U.S. 164, 172, n. 7 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974). ¶ 4 The majority relies on Chapman v. United States, 365 U.S. 610 , 81 S.Ct. 776 , 5 L.Ed.2d 828 (1961), to support its finding Mr. Taylor did not have the authority to consent to the search. I find Chapman is distinguishable. In Chapman , the landlord smelled a strong odor of “whiskey mash” coming from his tenant’s home. Although he had no first hand knowledge of illegal activity taking place on the premises, he informed the police of his observations and consented to their forcible entry into the premises through an unlocked bathroom window. Upon entry, the police found an illegal distillery, which they subsequently seized without a warrant. ¶ 5 Unlike Chapman , Mr. Taylor was authorized to enter the Appellant’s premises. In compliance with the terms of the lease, the landlord posted notices throughout the apartment complex providing he would be making inspections and repairs on a given date. While conducting an inspection of apartment 401, Mr. Taylor observed illegal contraband on the kitchen *955 table. Thus, contrary to the landlord in Chapman , Mr. Taylor had first hand knowledge illegal activity was occurring in the apartment when he reported his findings to the police. When the police arrived, Mr. Taylor led them to the apartment where they observed the drugs and drug paraphernalia on the kitchen table. Shortly thereafter, one officer left the scene to obtain a search warrant and the remaining officers secured the premises. Approximately ten minutes later, the Appellant attempted to enter the apartment. Upon his arrest, the officers waited in the apartment until the search warrant had been obtained. ¶ 6 Upon my review of the record, I find Mr. Taylor had a sufficient relationship to the premises to provide the police with the necessary consent to enter apartment 401. While therein, the police did not conduct a search of the premises. Instead, they secured the premises and waited until a search warrant could be obtained. Under the particular facts of this case, I find that if a motion to suppress had been filed, it would have been properly denied. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629578. Public record. Not legal advice.