“For one thing, ... the pretrial motion requirement is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.”
How later courts described this case
- “For one thing, ... the pretrial motion requirement is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.”
Written by the judges who cited it.
The opinion
MANDERINO, Justice,
dissenting.
I dissent. The majority concludes that when a new trial is ordered an accused is not entitled to another suppression opportunity. I cannot agree. As I have previously stated in my dissenting opinion in Commonwealth v. Harmon, 469 Pa. 490, 498 , 366 A.2d 895, 899, 900 (1976), that conclusion is unwarranted. In Harmon , I said:
“The majority concludes that the nature of the ‘pretrial’ suppression hearing is such that it should not be considered a part of the ‘trial,’ and that therefore the de novo ‘trial’ should be limited to a re-litigation of guilt or innocence only. The suppression hearing itself, however, is nothing more than a determination of the admissibility of trial evidence, and is held outside the presence of the jury pursuant to Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). The purpose for holding a hearing on the admissibility of certain evidence prior to trial rather than during the course of the jury proceedings *314 is to prevent the uneconomical use of the jury’s time, and as a matter of convenience to the court and to the litigants. The hearing, however, need not necessarily be held ‘pre-trial.’ Cf. Swenson v. Stidham, 409 U.S. 224 , 93 S.Ct. 359 , 34 L.Ed.2d 431 (1972). Questions as to the admissibility of evidence have traditionally been, and remain, an integral part of a trial. The timing of admissibility hearings as to certain evidence does not make them any less a part of the trial.
In a different context, the federal courts have been called upon to define the parameters of a ‘trial’ as that word is used in the Sixth Amendment’s guarantee of a ‘public trial.’ In United States v. Kobli, 172 F.2d 919 (3d Cir. 1949) the selection of a jury was held to be part of a public ‘trial.’ In United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969), the court recognized that ‘[a] Jackson v. Denno hearing has more of the characteristics of a testimonial hearing, which is the essence of a trial proceeding, than does the selection, of a jury . . . ’, and held that for the purposes of the Sixth Amendment’s requirement that an accused be afforded a ‘public trial,’ the ‘pretrial’ suppression hearing was an integral part of the ‘trial’ and must be open to the public also. This requirement was recognized by our Court in Commonwealth v. Bennett, 445 Pa. 8 , 282 A.2d 276 (1971). See also United States v. Clark, 475 F.2d 240, 247 (2d Cir. 1973). (‘In many criminal prosecutions the disposition of the motion to suppress is as important as the trial itself, since granting of the motion may require entry of a judgment of acquittal for lack of other proof sufficient to convict.’)
A ‘pretrial’ hearing on the admissibility of the evidence which the prosecution seeks to present to the fact finder is as much a part of the ‘trial’ as a hearing on the admissibility of such evidence would be had it taken place subsequent to the swearing of the jury or to the calling of the first witness.” (Emphasis in original.)
Even assuming the Harmon view, however, the prosecution’s reliance on Commonwealth v. Harmon, 469 Pa. 490 , 366 A.2d 895 (1976), is misplaced. That case involved the *315 Municipal Court system of Philadelphia County. After conferring jurisdiction in certain criminal cases to the Municipal Court, Pa.Const. Schedule to the Judiciary Article, art. V, § 16(r)(iii), provided that a defendant shall “have the right of appeal for trial de novo including the right to a trial by jury to the trial division of the court of common pleas.” Appellant in Harmon challenged the constitutionality of a local court rule which provided that pre-trial suppression motions would be heard by a judge sitting as a common pleas judge, but that “the motion may not be reinstated as part of the appeal [to common pleas court].”
A majority of this Court held that the above right to a de novo trial, “was not intended to encompass recognized pretrial proceedings.” 469 Pa. at 495 , 366 A.2d at 898 . Therefore, a defendant could not relitigate at the trial de novo issues raised, or which could have been raised, at the Municipal Court suppression hearing.
The purpose of the Municipal Court system was “ . to relieve the congestion and backlog that was plaguing the existing system within the County. . . . It is obvious that if the Municipal Court proceeding becomes a mere dress rehearsal for further proceedings in the Common Pleas Courts, then the new system has defeated the very purpose for which it was conceived.” (Footnotes omitted.) Id. at 496-497 , 366 A.2d at 898-899 . These factors are not present when an appellate court orders a new trial, and Harmon is therefore inapplicable here. The guide for the issue before this Court is more appropriately Commonwealth v. Hart, 479 Pa. 84 , 387 A.2d 845 (1978).
“When a court grants a new trial, the necessary effect thereof is to set aside the prior judgment and leave the case as though no trial had been held. ... By the operation of an order granting a new trial, the cause, in contemplation of law, is precisely in the same condition as if no previous trial had been held.
“[U]pon grant of a new trial, the prior judgment is set aside and the case, including all matters raised by the pleadings, is restored to the status it had before any trial *316 took place as though no trial had been held.” (Citations omitted.) (Emphasis added.)
Appellant was granted a new trial by this Court. Commonwealth v. Dobson, 465 Pa. 91 , 348 A.2d 123 (1975). Therefore, any issue may be raised regardless of whether or not it was raised during the original proceedings, and it cannot be said that appellant has waived any issue simply because it was not raised at the first trial.
As to the merits of appellant’s claim, that the search of his mother’s house was illegal, the prosecution contends that appellant lacks “standing” to contest the search of his mother’s house because he alleged no proprietary interest in the premises.
The United States Supreme Court has recently addressed itself to the analysis to be employed when confronted with an alleged violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. In Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), the court considered a situation where the appellants challenged the legality of a police search of an automobile in which they were present as passengers, alleging no possessory rights to the vehicle or to the goods seized from it. The Court took the occasion to reaffirm the principle that the
“rights assured by the Fourth Amendment are personal rights [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.”
Id. at 138 , 99 S.Ct. at 428 , 58 L.Ed.2d at 398 , quoting from Simmons v. United States, 390 U.S. at 389, 88 S.Ct. 967 , 19 L.Ed.2d 1247 .
The court continued by saying that,
“ . . . the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.”
Id. at 139, 99 S.Ct. at 428 , 58 L.Ed.2d at 398 .
I agree that the better analysis would be to focus on the question of whether the challenged search and seizure vio *317 lated the Fourth Amendment rights of the person seeking to exclude the evidence obtained as a result of it, rather than upon the question of whether that person has “standing” to challenge the search and seizure. The question of whether the challenged search and seizure has violated the defendant’s Fourth Amendment rights,
“ . . .in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.”.
Id. at 140 , 99 S.Ct. at 429 , 58 L.Ed.2d at 399 .
Referring to the language contained in Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), which said that to assert Fourth Amendment rights, one need show only that he or she was “legitimately on the premises” searched, the Rakas court said,
“ . . . we believe that the phrase ‘legitimately on premises’ coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights.”
Id. at 142, 99 S.Ct. at 429 , 58 L.Ed.2d at 400 .
“ . . . 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.”
Id. at 142, 99 S.Ct. at 430 , 58 L.Ed.2d at 400 .
Furthermore,
“ . . . arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control,”
“ . . . the Fourth 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.”
Id. at 143 , 99 S.Ct. at 430 , 58 L.Ed.2d at 401 .
The ultimate question, therefore, is whether the person challenging the search and seizure has a legitimate expecta *318 tion of privacy in the premises searched, even though his or her “interest” in those premises might not have been a recognized property interest at common law. Id.
The analysis of the Rakas court is the same as that made by three members of this Court in Commonwealth v. Rowe, 433 Pa. 14 , 249 A.2d 911 (1969) (Opinion in Support of Affirmance by Mr. Justice Eagen [now Chief Justice Eagen]). Rowe was remarkably similar on its facts to the case before us. The defendant contended that a search of his co-defendant’s father’s home was based on an invalid search warrant and the prosecution contended that defendant had no standing to challenge the search of that home. At the time of the search the defendant was visiting the searched premises unlike this case but the Opinion in Support of Affirmance recognized
“[t]hat the protection of the amendment depends not upon a property right in the invaded place or the property seized is also made emphatically clear in Mancusi v. DeForte, 392 U.S. 364 , 88 S.Ct. 2120 , 20 L.Ed.2d 1154 (1968), and Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Rather it depends upon whether or not the area searched ‘was one in which there was a reasonable expectation of freedom from governmental intrusion.’ [Footnote omitted.] That the [co-defendant’s father’s] home was such an area to us appears beyond doubt.”
433 Pa. at 17-18 , 249 A.2d at 912 .
With its “new” analysis in mind, the Rakas court looked in retrospect to the facts of Jones v. United States, and stated,
“the holding in Jones can best be explained by the fact that Jones had a legitimate expectation 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.”
*319 439 U.S. at 143 , 99 S.Ct. at 430 , 58 L.Ed.2d at 401 .
Rakas did not consider concepts of property law irrelevant but found them not to be controlling. The controlling factor is to be found in whether society considers a particular place as being one where a particular individual has an expectation of privacy.
“Legitimation of expectations of privacy by law 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 permitted by society.”
439 U.S. at 144, n. 12 , 99 S.Ct. at 431, n. 12 , 58 L.Ed.2d at 401 n. 12.
The prosecution bears the unshifting burden of establishing that a challenged search and seizure did not violate the defendant’s constitutional rights. Commonwealth v. Silo, 480 Pa. 15 , 389 A.2d 62 (1978); Pa.R.Cr.P. 323(h). If therefore the prosecution asserts as it does here, that a defendant’s challenge to a police search of certain premises should be denied because the defendant had no constitutionally protected interest in the premises searched, it must sustain the burden of establishing that defendant possessed no legitimate expectation of privacy in those premises. That burden has not been sustained in this case. The opinion in Rowe in considering whether the defendant had an expectation of privacy in the home of the father of his co-defendant concluded “[t]hat the . . . home was such an area to us appears beyond doubt.” 433 Pa. at pp. 17-18, 249 A.2d at 912 . Likewise, in this matter I have no doubt that a citizen has a legitimate expectation of privacy as to his mother’s home. Aside from one’s own residence, an expectation of privacy in one’s mother’s home would certainly “have a source” in the “understandings that are recognized and permitted by society.” Rakas, 439 U.S. 144 , 99 S.Ct. 431 , 58 L.Ed.2d 401 , n. 12.
Therefore, if the search warrant in this case was insufficient, appellant is correct that the fruits of that search must be suppressed.
*320 There is no dispute that the affidavit upon which the search warrant was obtained in this case does not establish probable cause for the search if the illegally obtained statements of the defendant and his co-defendant are eliminated from the warrant. The prosecution does not object to the elimination of the defendant’s statement. It argues, however, that the co-defendant’s statement should not be eliminated from the warrant because although illegally obtained, the illegality did not involve a violation of any of the defendant’s rights. This novel proposition must be rejected. To accept this argument would permit the police to engage in separate unlawful conduct as to each of two or more citizens and use the fruits, all illegally obtained, to convict all of the citizens. The deterrent purpose of procedural rules, statutory law, or constitutional guides, would be considerably weakened and in some cases totally frustrated. To condone a reciprocal use of illegally obtained statements would be to encourage, rather than to deter, illegal police conduct.
Since the search of appellant’s mother’s home was based on an invalid search warrant, all of the fruits of that search must be suppressed.
The judgment of sentence should be reversed and a new trial granted.