Com. v. Duncan

• Decision Date: 04 March 2003
• Citation: 572 Pa. 438,817 A.2d 455
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David DUNCAN, Appellant.
• Court: Pennsylvania Supreme Court

817 A.2d 455

572 Pa. 438

COMMONWEALTH of Pennsylvania, Appellee v. David DUNCAN, Appellant.

Supreme Court of Pennsylvania.

Resubmitted August 22, 2002.

Decided March 4, 2003.

Lester Roy Zipris, John Packel, Philadelphia, for David Duncan, Appellant.

Catherine Marshall, Philadelphia, for the Com., Appellee.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice CASTILLE.

This Court granted limited discretionary review of a pretrial suppression ruling to consider whether a warrantless telephone call police made to appellant's bank, seeking the name and address information associated with an Automatic Teller Machine card ("ATM card") used by a person suspected of rape, violated appellant's rights under Article 1, Section 8 of the Pennsylvania Constitution. Because we hold that the telephone call did not violate appellant's rights, we affirm the Superior Court.

The facts demonstrated that at approximately 6:00 p.m. on November 10, 1996, a male unknown to the victim approached her as she was walking near the street lit intersection of 20th Street and John F. Kennedy Boulevard in Philadelphia. The male asked the victim if she was "working." The victim answered "no" and continued walking. A short time later, the same male confronted the victim a second time, this time claiming to have a gun in his coat pocket and threatening to kill her if she did not do as she was told. He then grasped the victim by the arm and forced her to an enclosed space beneath nearby train tracks where he raped her and stole her money.

The victim immediately reported the assault to the police and described her assailant as a white male, 27 to 28 years old, approximately six feet tall, weighing 210 to 220 pounds, of medium build, with light brown hair, and wearing a puffy, dark green Philadelphia Eagles jacket and blue jeans. Later that night, the police canvassed stores near the crime scene. The cashier at a pornography store, Elgee's Novelty Shop, told the police that a man matching the victim's description of the assailant had been in the store around the time of the rape and that this man had attempted to a make a purchase using an ATM card, but the card was rejected. The cashier provided the police with a list maintained by the shop of all ATM card transactions attempted and completed that day. The list showed the number of each card used and identified the bank that issued the card. The list indicated that two different ATM cards—one issued by Mellon Bank and one issued by Drovers and Mechanics Bank ("Drovers Bank")— had been rejected. The police also viewed the store's surveillance videotape, which showed a man matching the victim's description of her assailant attempting to make a purchase with an ATM card.

Thereafter, the police served a search warrant on Mellon Bank to obtain, inter alia, the name, address, and telephone information corresponding to the declined Mellon Bank ATM card. Mellon Bank provided this information, and the user of the card was ultimately eliminated as a suspect. The police then telephoned Robert Garrison, the manager of Drovers Bank, and requested the name and address corresponding to the declined Drovers Bank ATM card. The police inexplicably did not obtain a warrant before making this telephone request. Mr. Garrison consulted a list, kept within the bank, of all individuals to whom the bank had issued ATM cards. Mr. Garrison then relayed to police appellant's name and address in York County, Pennsylvania. Mr. Garrison did not ask the police if they had a warrant because the information requested by the police "was not financial." N.T. 9/29/1997 at 15.

On March 1, 1997, the police executed a search warrant for samples of appellant's blood, bodily fluid, and hair. On March 14, 1997, police arrested appellant pursuant to a warrant and charged him with rape and related offenses. According to the arrest warrant, DNA testing of the samples taken pursuant to the search warrant linked appellant to the alleged rape to a probability of over 99.99%. The victim later failed to identify appellant from a photographic array. At a subsequent in-person line-up, however, the victim identified appellant as the person who had attacked her.

Appellant filed a motion to suppress, in relevant part, the blood, bodily fluid, and hair samples, as well as the victim's line-up identification. Appellant contended, inter alia, that he had a state constitutional right of privacy in the name and address information disclosed by his bank to the police under this Court's decision in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979),cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). Appellant asserted that the police violated this privacy right by telephoning his bank and requesting this information without first obtaining a warrant, and that the biological samples, DNA results, and identification evidence should be suppressed as the constitutionally-tainted fruit of the illegal telephone call.

A hearing was held on this motion on September 29, 1997. In addition to the Commonwealth's evidence, appellant himself briefly testified and admitted that he came to Philadelphia on the date of the crime in question to purchase an Eagles jacket, and that after purchasing the jacket he wore it for "the entire day and the entire night." N.T. 9/29/1997 at 89. Appellant never testified whether he believed that his bank would keep his name and address private, nor did he present any evidence from his bank suggesting what level of privacy, if any, it promised its customers.

The Honorable Gregory E. Smith, of the Court of Common Pleas of Philadelphia County, granted the motion to suppress. The court held that the name and address information requested by the police and disclosed by appellant's bank were constitutionally-protected "bank records" within the purview of DeJohn. Since the suppression court read DeJohn as authorizing the "acquisition" of bank records only pursuant to a valid warrant, and since the police here did not obtain a search warrant before requesting the name and address corresponding to the ATM card number from Drovers Bank, the suppression court concluded that the police illegally seized the information by asking for it telephonically. Appellant's blood, bodily fluid, and hair samples, as well as the DNA test results and the victim's positive line-up identification, were suppressed as the tainted fruits of this unconstitutional telephone call.¹

Upon the Commonwealth's certified appeal,² a unanimous panel of the Superior Court reversed in a published opinion authored by the Honorable Kate Ford Elliott. Commonwealth v. Duncan, 752 A.2d 404 (Pa.Super.2000). The Superior Court focused on whether appellant had an expectation of privacy in his bank's knowledge of his name and address. Following a thorough discussion of DeJohn and other precedents from this Commonwealth, as well as a number of decisions from other jurisdictions, the Superior Court observed that "there is a fundamental difference between the type of information that is subject to a constitutionally protected right to privacy and a person's identification information, i.e., one's name and address." 752 A.2d at 412. The type of information that "is deserving of constitutional protection," the court continued, consists "of the unique, perhaps controversial or unpopular, essence of one's personality rather than merely identifying individuals, where they live, and their telephone number." Id. Thus, the Superior Court concluded that "a person's name and address, by themselves, do not constitute information about which a person can have a reasonable expectation of privacy that society is willing to recognize." Id., quoting State v. Chryst, 793 P.2d 538, 542 (Alaska Ct. App.1990)

. Because the name and address information disclosed to the police by the bank did not fall within the scope of information protected by Article I, Section 8, the Superior Court held that the police did not violate the Pennsylvania Constitution in requesting this information without first obtaining a warrant.

This Court granted limited review to consider whether appellant had a reasonable expectation of privacy in the name and address information provided by his bank to the police under Article I, Section 8 of the Pennsylvania Constitution and our decision in DeJohn. Article I, Section 8 provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art I, § 8. This Court has " `accorded greater protections to the citizens of this state under Article I, Section 8 of our constitution under certain circumstances,'" but we have also recognized that that fact "does not command a reflexive finding in favor of any new right or interpretation asserted." Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655, 660 (2000), quoting Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 431 (1999)

. See also In re D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001) (declining to depart from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and progeny). Because we find that this Court's decision in DeJohn does not support the suppression court's legal conclusion that appellant had a right of privacy in the mere name and address information disclosed by his bank, and because we find that this Court's Article I, Section 8 jurisprudence should not be expanded to encompass such a circumstance, we affirm the Superior Court.

In reviewing a suppression ruling, this Court is bound by the suppression court's factual findings which find support in the record, but we are not bound by the court's conclusions of law. Commonwealth v. Templin, 568 Pa. 306, 795 A.2d 959,...