Com. v. Black

• Decision Date: 25 August 2000
• Citation: 758 A.2d 1253
• Parties: COMMONWEALTH of Pennsylvania, Appellant, (At 732) v. Christopher BLACK, Appellee. Commonwealth of Pennsylvania, Appellant, (At 733) v. Vincent Diorio, Appellee.
• Court: Pennsylvania Superior Court

758 A.2d 1253

COMMONWEALTH of Pennsylvania, Appellant, (At 732) v. Christopher BLACK, Appellee.

Commonwealth of Pennsylvania, Appellant, (At 733) v. Vincent Diorio, Appellee.

Superior Court of Pennsylvania.

Argued March 29, 2000.

Filed August 25, 2000.

Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Joseph C. Santaguida, Philadelphia, for Black, appellee.

Robert Gamburg, Philadelphia, for Diorio, appellee.

Before: FORD ELLIOTT, MONTEMURO¹, JJ. and CIRILLO, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

¶ 1 The Commonwealth of Pennsylvania appeals from an order granting a suppression motion entered in the Court of Common Pleas of Philadelphia County.² We reverse.

¶ 2 Appellees, Christopher Black and Vincent Diorio³, were charged with knowing and intentional possession of a controlled substance and possession with the intent to deliver a controlled substance. Black and Diorio each filed a pre-trial motion to suppress the physical evidence, which was granted on January 22, 1999. The Commonwealth appeals, claiming the trial court erred when it granted Black and Diorio's motions to suppress.

¶ 3 On September 23, 1997, Philadelphia Police Officer William Jeitner of the Narcotics Field Unit had a telephone conversation with Detective Payton of the Los Angeles County Police Department regarding a Federal Express package addressed to Barbara Barsh at 12516 Torrey Road, First Floor, Philadelphia, Pennsylvania, 19154. Detective Payton informed Officer Jeitner that he had received information from a reliable informant that the Federal Express package, addressed to Barbara Barsh, contained cocaine. Detective Payton also informed Officer Jeitner that the informant had provided prior information which led to several arrests in the past. Moreover, Detective Payton informed Officer Jeitner that the Federal Express package had been intercepted in California, opened without a properly issued search warrant, and was found to contain numerous hand lotion containers with bags of cocaine stuffed inside of the containers. The package was resealed and sent to Bob Brown of the Federal Express Security office in Bristol, Pennsylvania.

¶ 4 Officer Jeitner and Officer Donna Doran met with Bob Brown in Bristol, Pennsylvania. Officers Jeitner and Doran took possession of the Federal Express package. Officer Richard Nicoletti of the Philadelphia Police Narcotics Field Unit obtained search warrants for the package and the first floor apartment. A search of the package was conducted at the Narcotics Field Unit, which revealed that the package contained eight bottles of Suave hand lotion. Four of the bottles were wrapped in gauze and surgical tape and contained a white substance. The substance tested positive for methamphetamines. The whereabouts and existence of Barbara Barsh could not be obtained.

¶ 5 Officer Jeitner arranged for Officer Doran to deliver the Federal Express package to the first floor apartment. Officer Doran left the package between the screen door and the front door of the apartment after she knocked on the door and did not receive an answer. Officer Nicoletti maintained surveillance of the property during this time. Officer Nicoletti did not see anyone enter or exit the apartment until forty-five minutes later, when he observed Diorio enter the apartment and take the parcel inside. Approximately thirty minutes later, Officer Jeitner knocked on the front door of the apartment and announced that police officers were present on the property and that he had a search warrant for the apartment. Again, Officer Jeitner made several knocks and announcements, and when he did not hear any response from the occupants inside, he forcibly entered the premises to execute the search warrant.

¶ 6 Upon entering the apartment, the Officers saw Black and Diorio seated on a couch in the living room with a large glass table in front of them. Several bags of cocaine were seized from the glass tabletop. The Federal Express package was leaning against a wall between the door and the rear of the couch. The search also resulted in the seizure of drugs, money, drug paraphernalia, and items indicating Black's possessionary interest in the property. Black and Diorio were charged with knowingly or intentionally possessing a controlled substance, possessing a controlled substance with an intent the intent to deliver it, possessing drug paraphernalia, and criminal conspiracy. Black and Diorio filed motions to suppress which were granted by the trial court. This appeal followed. The Commonwealth raises the following issue for our consideration:

Did the lower court err in granting defendant's suppression motion based on speculation that a package of contraband addressed to a third party may have been improperly opened in California where defendant, apart from having no standing to raise the issue, clearly lacked any reasonable expectation of privacy in the package at the time of the search?

Our standard of review in this case is well settled.

In reviewing an order granting a motion to suppress, an appellate court may consider only the evidence of the defendant's witnesses and so much of the Commonwealth's evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court's findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected. Commonwealth v. Torres, 429 Pa.Super. 228, 632 A.2d 319, 320 (1993).

Commonwealth v. Blee, 695 A.2d 802 (Pa.Super.1997).

¶ 7 The Commonwealth introduced and admitted into evidence the two search warrants in question along with their respective affidavits of probable cause. The Commonwealth asserts that Black and Diorio lack standing to challenge the validity of the search warrants and that the search warrant issued for the Federal Express package was lawful. In its opinion, the trial court held Black and Diorio:

[h]ave automatic standing to challenge the legality of the search warrants and the admissibility of any evidence derived therefrom. Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1979)[1983]. If possession of the seized evidence is itself an essential element of the offense [when] the defendant is charged, the government is precluded from denying that the Defendant has the requisite possessory interest to challenge the admission of the evidence (at the suppression hearing). Knowles, supra at 76.

¶ 8 In addition to standing, however, we find that a defendant must also demonstrate a reasonable expectation of privacy in the property searched. Following Knowles, supra, this court held in Commonwealth v. Rodriquez, 385 Pa.Super. 1, 559 A.2d 947 (1989), that a person must demonstrate a reasonable expectation of privacy to establish standing. In Rodriquez, this court stated:

In Sell, our Supreme Court interpreted Article I, section 8 of the Pennsylvania Constitution as giving a broader scope of protection with regard to standing to challenge a search and seizure than the United States Supreme Court has construed in the fourth amendment.N1 The Sell Court elected to continue the "automatic standing" rule it first adopted in Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974). Here, appellee was charged with one count each of knowing or intentionally possessing a controlled substance, manufacture with intent to manufacture or deliver a controlled substance, and criminal conspiracy. Because the first two charges are possessory offenses, appellee initially has standing to challenge the search and seizure, however, as a matter of law, we find appellee abandoned the property seized, she has not standing to challenge the police search of the house and consequent seizure of the narcotics.

N1 See e.g. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)

and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (reevaluating the "automatic standing" rule applied to alleged Fourth Amendment violations in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which held the mere charge of a defendant with a possessory offense conferred standing to assert an alleged Fourth Amendment violation).

Rodriquez, supra at 948.

Furthermore, the Rodriquez court held:

It is well-established that "no one has standing to complain of a search and seizure of property that he has voluntarily abandoned." Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221, 226-28, 486 A.2d 987, 990 (1985). "The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned." Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Cihylik, supra, 337 Pa.Superior Ct. at 226-28,486 A.2d at 990. These principles were well-stated by the Supreme Court in Sell: "[P]ersonal possessions remain constitutionally protected ... until their owner meaningfully abdicates his control, ownership or possessory interest therein." Id.,504 Pa. at 67,470 A.2d at 469.

Rodriquez, supra at 949.

¶ 9 The Pennsylvania Supreme Court addressed the issue of placing the burden upon the defendant seeking suppression to establish a legitimate expectation of privacy as an essential element of his case in Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). The Pennsylvania Supreme Court has determined that standing requires a defendant to demonstrate one of the following elements:

(1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element of the prosecution's case, the element of possession at the time of the contested search and seizure; or (4

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