Com. v. Bennett

• Decision Date: 03 March 1992
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Garland J. BENNETT, Appellee.
• Court: Pennsylvania Superior Court

Page 276

604 A.2d 276

412 Pa.Super. 603

COMMONWEALTH of Pennsylvania, Appellant, v. Garland J. BENNETT, Appellee.

Superior Court of Pennsylvania.

Submitted Aug. 22, 1991.

Filed March 3, 1992.

Kemal A. Mericli, James R. Gilmore, Asst. Dist. Attys., Pittsburgh, for the Com., appellant.

Norma Chase, Pittsburgh, for appellee.

Before WIEAND, CIRILLO and JOHNSON, JJ.

WIEAND, Judge:

The Commonwealth appeals from an order of the trial court suppressing in excess of one hundred (100) grams of cocaine seized by police from a duffle bag carried by Garland J. Bennett upon arrival at the Greater Pittsburgh International Airport. The bag was seized after Bennett had placed it against a wall outside the main terminal. When confronted and questioned by police, Bennett denied ownership of it. The Commonwealth asserted at the suppression hearing that Bennett, by his denial of ownership, had abandoned any reasonable expectation of privacy which he would otherwise have had in the duffle bag. The suppression court determined, however, that Bennett's denial of ownership had been coerced and did not constitute a voluntary abandonment. ¹ This appeal followed. ²

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court's findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988); Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985). "We will also affirm the decision of the suppression court 'if it can be sustained for any reason whatsoever, even if the [suppression] court offered an erroneous reason to support its action.' " Commonwealth v. Bowers, 400 Pa.Super. 377, 381, 583 A.2d 1165, 1167 (1990), quoting Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See also: Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493, 467 A.2d 638, 641 (1983).

The suppression court has briefly described the factual scenario giving rise to the legal issues in this appeal as follows:

On [July 17, 1989], the Defendant, at Greater Pittsburgh International Airport, deplaned from Flight 597 from New York City and became the focus of an investigation pursuant to a drug courier profile utilized by the Allegheny County Police [Drug] Interdiction Team. Defendant was followed through the concourse to the outside of the airport terminal, observed carrying a green duffle bag throughout the pertinent time period, including a rest room stop.

While waiting for a bus outside the airport terminal, testimony at the Suppression Hearing indicated that the Defendant placed the duffle bag against the wall and walked from 6 to 15 feet away from the duffle bag but remained within a 15 foot radius of the bag. It was at this point that two Allegheny County police officers confronted the Defendant and inquired into several of the aspects which were itemized on the Drug Courier Profile: air line ticket, lack of baggage, identification, destination. When asked if the duffle bag leaning against the wall belonged to Defendant, Defendant answered in the negative. The officer testified that he immediately went to the duffle bag, opened it, examined the contents and discovered the suspected controlled substance. Defendant was then placed under arrest.

In light of the suppression court's determination in this case, the essential issues to be resolved on appeal are: (1) whether appellee's denial of ownership of the duffle bag was sufficient to constitute an abandonment of a possessory interest therein; and (2) if, in fact, an abandonment of the duffle bag occurred, was it coerced by unlawful police conduct.

"It is axiomatic that a defendant has no standing to contest the search or seizure of items which he has voluntarily abandoned." Commonwealth v. Windell, 365 Pa.Super. 392, 398, 529 A.2d 1115, 1117 (1987). See also: Commonwealth v. Rodriguez, 385 Pa.Super. 1, 4, 559 A.2d 947, 948 (1989); Commonwealth v. Cihylik, 337 Pa.Super. 221, 228, 486 A.2d 987, 990 (1985). The applicable law with respect to the issue of abandonment has been stated by the Superior Court as follows:

It is hornbook law that abandoned property may be obtained and used for evidentiary purposes without regard to the existence of probable cause or a search warrant. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possessed. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976). Personal belongings, such as [a] suitcase, "retain their constitutional protection until their owner meaningfully abdicates control or responsibility." Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). 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. Commonwealth v. Shoatz, supra [469 Pa.] at 553, 366 A.2d at 1220 citing U.S. v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). Although abandoned property is admissible evidence, such property may not be utilized where the abandonment is coerced by unlawful police action. Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).

Commonwealth v. Vecchione, 327 Pa.Super. 548, 557-558, 476 A.2d 403, 408 (1984). See also: Commonwealth v. Williams, 380 Pa.Super. 227, 231-232, 551 A.2d 313, 315 (1988); Commonwealth v. Bulling, 331 Pa.Super. 84, 103-104, 480 A.2d 254, 264 (1984); Commonwealth v. Williams, 269 Pa.Super. 544, 547, 410 A.2d 835, 836 (1979).

The Pennsylvania Supreme Court has observed also that:

'Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir.1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra [362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ]; United States v. Edwards, 5th Cir.1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir.1970, 431 F.2d 330.'

Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976), quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc). See also: Commonwealth v. Anderl, 329 Pa.Super. 69, 82, 477 A.2d 1356, 1362 (1984).

The Commonwealth argues that the decision of the Superior Court in Commonwealth v. Anderl, supra, is controlling of the abandonment issue in this case. In Anderl, the defendant, who had been involved in an automobile accident, removed a satchel from the trunk of his car and concealed it behind a hedge on the property of a third person. When the satchel was found by a police officer, the defendant responded to the officer's inquiry by denying that the satchel belonged to him. The Superior Court held that, under these circumstances, the defendant had abandoned any reasonable expectation of privacy in the satchel. In so holding, however, the Anderl Court specifically noted that the defendant's expectation of privacy in the contents of the satchel had been "measurably decreased by his action of hiding it on the property on an unknown third party." Id., 329 Pa. Superior Ct. at 84, 477 A.2d at 1363. Thus, the Court did not consider whether the subsequent denial of ownership would alone have been determinative. In the instant case, the defendant's prior conduct did not evidence a clear intent to relinquish his expectation of privacy in the duffle bag, for he merely had placed the bag against the terminal wall while waiting for a bus and at all times remained within a 6 to 15 foot radius of the bag. The issue clearly presented in this case, therefore, is whether defendant's denial of ownership of the duffle bag, standing alone, was sufficient to constitute an abandonment.

Although our research has disclosed no appellate decisions in this Commonwealth which are directly on point, we are guided by federal appellate court decisions which have held generally that abandonment may be found where, in response to police questioning, a defendant denies ownership of the property in question. See: United States v. Carrasquillo, 877 F.2d 73 (D.C.Cir.1989) (where train passenger denied ownership of garment bag under his feet and no other person claimed it, bag was legally abandoned and could be searched without warrant); United States v. McBean, 861 F.2d 1570 (11th Cir.1988) (defendant had no reasonable expectation of privacy in luggage in trunk of his car where he told police that it was not his luggage and that he knew nothing of its contents); United States v. Roman, 849 F.2d 920 (5th Cir.1988) (defendant abandoned suitcases which he had checked at airport, where he told agents that he had not checked any luggage...