Com. v. Barnette

• Decision Date: 04 October 2000
• Citation: 760 A.2d 1166
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Devon A. BARNETTE, Appellant.
• Court: Pennsylvania Superior Court

760 A.2d 1166

COMMONWEALTH of Pennsylvania, Appellee, v. Devon A. BARNETTE, Appellant.

Superior Court of Pennsylvania.

Submitted August 14, 2000.

Filed October 4, 2000.

Joseph P. Burt, Erie, for appellant.

Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.

BEFORE: HUDOCK, STEVENS and BROSKY, JJ.

BROSKY, J.

¶ 1 Appellant Devon A. Barnette appeals from the judgment of sentence imposed after he was convicted by a jury of possession with intent to deliver marijuana, criminal conspiracy to commit possession with intent to deliver marijuana, and corruption of minors. We affirm. ¶ 2 The charges against Barnette arose out of a police search and seizure of a package that contained 2.2. kilograms of marijuana. The facts, as described by the trial court, are as follows.

The package was shipped from Yonkers, New York to a Mike Costonis of 1404 East Lake Road, Erie Pennsylvania. The package was received at the Griswold Plaza Branch of the United States Post Office. While at the post office a Postal Inspector noticed that the package emitted a strong odor of deodorizer, which raised the Inspector's suspicions as deodorizer is often used as a masking agent for illegal drugs. The Inspector contacted the City of Erie Police Department. Detective Mike Nolan and Detective Matthew Fischer responded to the call by the Inspector. As the package had already been delivered, the two detectives went to 1404 East Lake Road to further investigate. At the residence, the Detectives met a juvenile, Aaron Ferrara, who stated that he had just signed for a package, which had been delivered for "Mike." The Detectives asked permission to enter the house to see the package, which was granted by Aaron Ferrara. Aaron Ferrara told the Detectives that "Mike" had told him to sign for the package and that it contained knick-knacks. When the Defendant and co-Defendant, Shane Ferrara[,] arrived at the house, Aaron Ferrara identified the Defendant as the person known as "Mike" who had instructed him to sign for the package. Detective Nolan asked Defendant if the package was his and, if so, whether Defendant minded if the Detective opened the package. Defendant denied he was Mike Costonis and denied any ownership interest in the package. Defendant stated that, since the package was not his package, therefore, he did not care if Detective Nolan opened the package.

Trial Court Opinion, 10/29/99, at 1-2.

¶ 3 After the package was opened, Barnette was arrested and charged with the foregoing charges. Prior to trial, Barnette unsuccessfully sought to have the package and its contents suppressed because the package was opened and searched without a search warrant. He also unsuccessfully sought a writ of habeas corpus with regard to the corruption of minors charge on the basis that there was no evidence that tended to show that he corrupted the morals of Aaron Ferrara.

¶ 4 After trial, Barnette was sentenced to serve 52 to 104 months' incarceration for the possession with intent to deliver conviction, 16 to 32 months' incarceration for the criminal conspiracy conviction, to be served consecutively, and 14 to 28 months' incarceration for the corruption of minors conviction, to be served consecutively. The total sentence was 82 to 164 months' incarceration. No post-trial motions were filed. This appeal followed.

¶ 5 Barnette first challenges the trial court's refusal to grant his motion to suppress the evidence. Barnette argues that the police detectives' opening the United States Mail without a warrant and in the absence of any exigent circumstances was an unreasonable search and seizure under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Barnette does not dispute that the package that was delivered to the residence of Aaron Ferrara was in fact for him. See Appellant's Brief at 11. He challenges the validity of Aaron Ferrara's consent to the police entry into the home and consent to the examination of the package. Barnette also contends that, since the package actually was his, he had a possessory interest in it sufficient to confer standing on him to request suppression of the package and its contents. To rebut the trial court's conclusion that Barnette had abandoned the package, Barnette relies on Commonwealth v. Houston, 456 Pa.Super. 105, 689 A.2d 935 (1997), asserting that his denials of ownership of the package and its contents, as well as his denial of being Mike Costonis, were based on police misconduct. ¶ 6 If there is sufficient evidence of record to support the suppression court's ruling, and the court has not misapplied the law, then we will not disturb the court's decision, particularly with respect to credibility determinations. Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443 (1994). Since Barnette did not present any witnesses during the suppression hearing, we only look to the Commonwealth's evidence. Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 339 (1997).

¶ 7 Regarding Barnette's standing, a defendant charged with a possessory offense has automatic standing to litigate a suppression motion asserting a violation of Article I, Section 8. See Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143, 145 (1997). However, to successfully have the seized evidence suppressed, the defendant must demonstrate a privacy interest that was "actual, societally sanctioned as reasonable, and justifiable in the place invaded." Id. Under the Fourth Amendment, the defendant has to prove by the totality of the circumstances that he had a legitimate expectation of privacy in the place invaded. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 464-465 (1983). To be considered a "legitimate", an expectation of privacy:

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. One of the main rights attaching to property is the right to exclude others.

Sell, 470 A.2d at 465 (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978)).

¶ 8 Barnette had no privacy interest in the place invaded, i.e., the inside of Aaron Ferrara's residence where the package was searched and seized, that would have been protected by either Article I, Section 8 or the Fourth Amendment. There is no allegation that Barnette was a resident or even a guest at the Ferrara home where the package was delivered. A search warrant is not required if the search has been with voluntary consent. Commonwealth v. Blasioli, 454 Pa. Super. 207, 685 A.2d 151, 156 (1996), aff'd 552 Pa. 149, 713 A.2d 1117 (1998). In order for the consent to be valid, it must be unequivocal, specific, and voluntary. Id. Moreover, the consent must be given free from coercion, duress, or deception. Id. The question of whether consent was voluntarily given depends upon the circumstances and a consideration of: the setting in which the consent was obtained; what was said and done by the parties present; and the age, intelligence, and intellectual background of the person consenting. Id.

¶ 9 The testimony by Detective Michael Nolan at the Omnibus Pre-Trial hearing, accepted by the trial judge, was that Aaron Ferrara was sixteen years old and perhaps mentally retarded. N.T., 10/18/99, at 16, 32. However, the testimony of the detective demonstrated that he had a conversation with Aaron Ferrara that showed Aaron understood why the police wanted to see the package. N.T., 10/18/99, at 37. The detective spent more than an hour speaking with the boy. N.T., 10/18/99, at 34. There is nothing in the record before us to suggest that Aaron Ferrara's consent to the police entry into his home to examine the package was involuntary.

¶ 10 Moreover, a criminal defendant has no privacy expectation in property that he has abandoned. Commonwealth v. Pizarro, 723 A.2d 675, 679 (Pa.Super. 1998). "No improper or unlawful act can be committed by the officers prior to the evidence being abandoned or relinquished." Id.

¶ 11 This Court recently explained in Commonwealth v. Clark, 746 A.2d 1128 (Pa.Super.2000):

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. The issue is not abandonment in the strict property-right sense but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.

Id., 746 A.2d at 1133-34 (quoting Commonwealth v. Johnson, 431 Pa.Super. 291, 636 A.2d 656, 658 (1994)).

¶ 12 In Houston, police were dispatched to a scene where they found a vehicle with one man inside of it on the passenger's side and another outside, near the driver's side door. The police arrested the passenger and placed him in a police cruiser. While they were doing so, they noticed on the floor of the front seat plastic baggies with the corners cut off. The officer who observed the baggies in the car returned to it and removed two jackets from the back seat. One of the jackets had a bag of cocaine in its front pocket, which was hanging open. When asked whether the jacket belonged to either of them, both men initially stated that it did not, but they later stated that it belonged to an individual they had previously dropped off. Based on the contents of the jacket, both men were charged and convicted with possession with the intent to deliver the cocaine.

¶ 13 This Court found that the police officer's intrusion into the vehicle was unlawful because the police were not authorized by either of the men or by operation of law to enter the car. Importantly, the panel in Houston distinguished the factual scenario in that case...