# Commonwealth v. Johnson > Superior Court of Pennsylvania · January 24, 1994 · 431 Pa. Super. 291 URL: https://www.frixlaw.com/law-library/cases/9736887 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. John JOHNSON - **Court:** Superior Court of Pennsylvania - **Decided:** January 24, 1994 - **Citations:** 431 Pa. Super. 291; 636 A.2d 656; 1994 Pa. Super. LEXIS 17 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Popovich, Johnson, Hoffman - **Cited by:** 15 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/9736887 ## How later opinions describe it (automated extraction) - holding that the defendant abandoned his bag when he ”placed the bag in a tree which was in a public park . . . and, therefore, accessible to anyone frequenting the park[, and the defendant] . . . stood 10-12 feet away from the tree and approached the bag only to show potentia… - finding that defendant’s placement of a bag of crack cocaine in a tree on public property and standing 10-12 feet away constituted a conscious attempt to distance himself from the bag in the event of police intervention, and accordingly resulted in the loss of a reasonable exp… - concluding that Johnson made “a conscious effort to disassociate himself” from a bag, and thus had no reasonable expectation of privacy in its contents, when he placed it behind a tree to obscure it from passers-by and walked ten to twelve feet away from it - finding abandonment where the defendant had placed a plastic bag containing crack cocaine “up into [a] tree” in a public park where a police officer seized it - finding abandonment where the defendant placed a bag in a tree in a public park ## Opinion text *298 JOHNSON, Judge, dissenting: I agree with my distinguished colleagues that abandonment is primarily a question of intent. I also agree with the assertion by my colleagues “that appellee did have a subjective intent to retain possession of the bag [containing drugs].” Majority opinion at 658. It is because of my agreement on these key points that I must respectfully disagree with the conclusion of my colleagues and, accordingly, dissent. All three cases cited by the Majority on the issue of abandonment stand for the principle that there must be an observable act by a party which clearly evidences an intention to dissociate from certain property before abandonment can be found. Commonwealth v. Bennett, 412 Pa.Super. 603 , 604 A.2d 276 (1992); Commonwealth v. Sanders, 407 Pa.Super. 270 , 595 A.2d 635 (1991); Commonwealth v. Williams, 380 Pa.Super. 227 , 551 A.2d 313 (1988). In a footnote, the Majority sets forth the case for the non-abandonment of the property in the appeal now before us as follows: While we agree that appellee did have a subjective intent to retain possession of the bag, 3 .... Majority opinion at 658 (emphasis added). This is clearly correct. The Majority then proceeds, however, to characterize the defendant’s assumed future conduct with these words: Clearly, appellee’s placement of the bag constituted a conscious effort to dissociate himself from the bag in the event there was police intervention. Id. at 659 (emphasis added). With this sentence, the Majority would seemingly accomplish what could not be accomplished in Bennett, Sanders, or Williams, supra. By speculating as to the purpose or reason *299 for defendant’s conduct prior to police intervention, the Majority would manufacture a “future abandonment” which is triggered “in the event there was police intervention.” Not surprisingly, my colleagues concede that there are no Pennsylvania cases directly on point, but would liken the facts in the present appeal to the situation obtained in Commonwealth v. Rodriguez, 385 Pa.Super. 1 , 559 A.2d 947 (1989); appeal denied, 524 Pa. 619 , 571 A.2d 381 (1989). I am unable to agree with my colleagues’ conclusions for several reasons. First, Rodriguez is inapposite. There, on a pretrial appeal by the Commonwealth, we held that the defendant’s act of throwing away the keys to an abandoned house constituted such a relinquishment of interest in the contents of the house as to defeat the defendant’s attempt to assert a reasonable expectation of privacy in its contents. In Rodriguez , we concluded that the defendant’s lack of standing arising from her act of throwing away the house keys precluded her from even initiating a fourth amendment argument. Moreover, the Majority would ascribe two diametrically opposed intentions to the single act of the defendant. The Majority first concedes that the careful depositing of the bag in the tree manifests a clear intention by the defendant to retain possession of the bag. My colleagues then assert that the very same act of careful concealment “constituted a conscious effort to dissociate [the defendant] from the bag” assuming a future happening of police intervention. I am unable to join in this reasoning. The facts as found by the distinguished trial judge leave no doubt that the defendant did nothing and said nothing upon being approached by the uniformed officers which could by any stretch of the imagination be understood to be an act of dissociation. The Majority would hold that the mere placement of the bag in the tree constitutes abandonment where the reviewing court can foretell the actor’s intended conduct in the event of police intervention. Perhaps the greatest flaw in this construction is that, in this case, the police did openly intervene, stopping their marked police car within one foot of, and facing, the defendant’s body. Rather than dissociating himself from *300 the bag, as would be required under the theory advanced by the Majority, the defendant stood there, never once saying or doing anything that could be interpreted as dissociating himself from the brown plastic bag placed in the tree. I decline to join in formulating a rule which would permit the Commonwealth to establish a future intent to abandon property based solely upon the careful concealment of property, which concealment might support an unexpressed desire to disclaim, or throw away, the property involved. At the time the police officer removed the bag from its hiding place in the tree, probable cause for an arrest did not exist nor is there any suggestion that the bag had to be seized and searched to protect the officers’ safety. I would find the seizure to have been unlawful and conclude that the order suppressing the evidence was not in error. Hence this dissent. Although appellee deposited the bag in a tree, appellee was careful to .(situate it where it was not immediately viewable by passersby. Moreover, appellee remained in the vicinity of the bag and accessed the bag when approached by a prospective customer. Clearly, appellee intended to retain possession of the bag. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9736887. Public record. Not legal advice.