Commonwealth v. Ferretti

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 *641 apartment of a friend in which appellant was present as a guest. I would affirm because my review of the record fails to disclose any basis for concluding that the gun was seized as a result of an unlawful search.

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 (I960),] 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 of Fourth Amendment rights. *642 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 *643 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 (5V2) 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 Fourth Amendment. See: Commonwealth v. Evans, 488 Pa. 38, 43 , 410 A.2d 1213, 1215 (1980).

Appellant’s lawful presence on the premises was also sufficient to confer upon him standing pursuant to Article I, section 8, of the Pennsylvania Constitution. The test for standing in this Commonwealth is that adopted by the Pennsylvania Supreme Court in Commonwealth v. Treftz, 465 Pa. 614 , 351 A.2d 265 (1976), cert. denied, 426 U.S. 940 , 96 S.Ct. 2658 , 49 L.Ed.2d 392 (1976). This test requires that

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; *644 (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.

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 the Fourth 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 of Article 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.

*645 An individual’s effects and possessions are constitutionally protected from unreasonable search and seizure as well as his person. U.S. ConstAmend. 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 of Article 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 *646 announced in Commonwealth v. Treftz, supra, but merely refocusing the analysis from a “preoccupation with nomenclature (e.g., ‘legitimately on the premises’ and/or ‘standing’)” to a determination of whether the defendant had a legitimate expectation of privacy in the area searched. Such an argument, however, was expressly rejected by the Sell Court in its determination of state constitutional law. Although the issue in Sell was different, it seems clear to me that the Supreme Court has conferred standing under the Pennsylvania Constitution to challenge the admission of fruits of an allegedly illegal search upon any person who was legitimately present on the premises at the time of the search. I conclude, therefore, that appellant had standing in this case to contest the seizure of the shotgun from Kathy Hummel’s. apartment.

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.