Commonwealth v. Perel

• Decision Date: 23 December 2014
• Docket Number: No. 704 WDA 2013,704 WDA 2013
• Citation: 2014 PA Super 283,107 A.3d 185
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Delano E. PEREL, Appellant.

107 A.3d 185

2014 PA Super 283

COMMONWEALTH of Pennsylvania, Appellee

v.Delano E. PEREL, Appellant.

No. 704 WDA 2013

Superior Court of Pennsylvania.

Argued Nov. 18, 2013.

Filed Dec. 23, 2014.

Stanley T. Booker, New Castle, for appellant.

Cynthia A. Gilkey, Assistant District Attorney, West Middlesex, for Commonwealth, appellee.

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

Opinion

OPINION BY WECHT, J.:

Delano Perel appeals the judgment of sentence entered on March 27, 2013. We vacate Perel's judgment of sentence, and we remand for additional proceedings consistent with this opinion.

On April 21, 2011, Officer Louis Squatrito of the Hermitage Police Department responded to a report of an armed robbery. When he arrived at the scene, Officer Squatrito found Darius Holcomb hiding in the woods behind an apartment building. According to Holcomb, he and his former cellmate, Perel, departed together for an overnight trip on that evening.

While traveling together (with Perel driving and Holcomb in the passenger seat), Perel announced that he needed to stop at his girlfriend's apartment. Perel pulled into an apartment complex, shut off the engine, and pulled a small brown leather bag from underneath the driver's seat.

Perel told Holcomb to “run it,”¹ and Holcomb observed a handgun protruding from the leather bag. After Holcomb handed Perel approximately $100, Perel exited the vehicle and walked into one of the apartments, taking the leather bag with him. Holcomb ran into a wooded area that was adjacent to the apartment complex and called the police. Before Officer Squatrito arrived at the scene, Holcomb saw Perel—now accompanied by a black female—drive away in a tan Chevrolet.

Chad Nych, another officer with the Hermitage Police Department, received a Mercer County 9–1–1 radio dispatch describing Perel, the unknown black female, and the tan Chevrolet. Officer Nych subsequently observed a tan Chevy Impala parked in front of the Sheetz convenience store on Route 18 in Hermitage. When Officer Nych approached the vehicle, he observed a black male matching Holcomb's description of Perel and a black female in the passenger seat. Officer Nych ordered Perel to exit the vehicle. Thereafter, Officer Nych searched Perel and discovered a bag of marijuana, currency, and a marijuana cigarette in Perel's pockets. Officer Nych then took Perel into custody.

Sergeant Donald Ott spoke with the female passenger, who he identified as Tony Smith, Perel's girlfriend. Sergeant Ott sought Smith's consent to search her apartment located at 1420 Parke Drive. Smith initially refused to consent to the search but later agreed. Smith signed a written consent form specifying that the police were searching for a black handgun, ammunition, and a “black or brown leather bag similar to a hygiene/shaving kit bag.” Notes of Testimony Suppression (“N.T.S.”), 11/9/2011, at 48.

In the rear bedroom of Smith's apartment, officers observed a small brown leather bag/shaving kit on the foot of the bed, which was consistent with Holcomb's description. Upon opening the bag, Captain Paul Jewell discovered marijuana, a handgun, ammunition, and condoms. Captain Jewell showed these items to Smith, who denied having any knowledge of them. Captain Jewell also searched two pieces of luggage that were beside the shaving kit. Therein, he found men's clothing and a receipt with Perel's name on it.

As a result of these events, Officer Squatrito filed a criminal complaint charging Perel with robbery, persons not to possess a firearm, forgery, firearms not to be carried without a license, theft by unlawful taking, receiving stolen property, delivery of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia.² On October 14, 2011, Perel filed an omnibus pretrial motion to suppress evidence. Therein, Perel argued that the warrantless search of his shaving kit and luggage was unconstitutional because Smith lacked the authority to consent to the search of his personal effects. Omnibus Motion for Pre-trial Relief, 10/14/2011, at 3 (unnumbered). On November 9, 2011, following a hearing, the trial court denied Perel's motion to suppress by opinion and order.

After the trial court, sua sponte, severed the persons not to possess a firearm count from the information, Perel proceeded to a jury trial on that charge alone on November 14, 2012. On November 16, 2012, the jury found Perel guilty of persons not to possess a firearm. On March 25, 2013, Perel pleaded guilty to possession with intent to deliver, and the Commonwealth nolle prossed the remaining charges. On March 25, 2013, the trial court sentenced Perel to five to ten years' imprisonment for persons not to possess a firearm with a consecutive term of one to five years' imprisonment for possession with the intent to deliver.

On April 23, 2013, Perel timely filed a notice of appeal. On May 1, 2013, the trial court ordered Perel to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Perel timely complied. On May 31, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Perel presents one issue for our consideration: “Did the trial court abuse its discretion in denying [Perel's] motion to suppress evidence where [Perel's] personal belongings were searched without a search warrant?” Brief for Perel at 4 (capitalization modified).

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (citations omitted).

“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This is so because “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Id. at 133–34, 99 S.Ct. 421 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ). Thus, before a defendant may challenge a search or seizure on Fourth Amendment grounds, he or she must demonstrate a reasonable expectation of privacy in the place that was searched.

As articulated by Justice John Marshall Harlan in his oft-quoted concurrence in Katz v. United States, a person who challenges a search or seizure on Fourth Amendment grounds must demonstrate (1) that he or she had a subjective expectation of privacy, and (2) that his or her subjective expectation of privacy is one that society is prepared to recognize as reasonable and legitimate. 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

With regard to Perel's subjective expectation of privacy in the contents of his luggage and shaving bag, it is well established that the key inquiry is whether Perel “took normal precautions to maintain his privacy.” Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) ; Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (explaining that an individual exhibits a subjective expectation of privacy if he or she sought to preserve something as private). Instantly, Perel placed his possessions in an opaque leather bag. He then zippered that bag closed and stored it in the “back bedroom” of his girlfriend's apartment (specifically “on the foot of the bed”). N.T.S. at 49. Moreover, Perel did not inform Smith of the contents of the bag. Id. at 50.³

The United States Supreme Court has held that searches of closed containers (i.e., personal luggage) intrude upon protected privacy interests as a matter of law. See New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” (quoting United States v. Ross, 456 U.S. 798, 822–23, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) )). Hence, the search of Perel's luggage and shaving kit violated Perel's subjective expectation of privacy.

Turning to the second prong of the Katz test, Perel's subjective expectation of privacy must be one that society is prepared to recognize as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. 507. No single factor determines the legitimacy of an individual's claim that a particular area should be free from warrantless government intrusion. Rakas, 439 U.S. at 152–53, 99 S.Ct. 421 (Powell, J., concurring). Our analysis may turn on factors such as (1) the intention of the Framers of the Fourth Amendment, Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ; (2) the uses to which an individual has put a particular location, Jones v. United States, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; and (3) society's understanding that certain areas deserve “the most scrupulous protection from government invasion.” Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

The United States Supreme Court applied...