Com. v. Duncan

• Decision Date: 04 April 2000
• Citation: 752 A.2d 404
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. David DUNCAN.
• Court: Pennsylvania Superior Court

752 A.2d 404

COMMONWEALTH of Pennsylvania, Appellant, v. David DUNCAN.

Superior Court of Pennsylvania.

Argued September 14, 1999.

Filed April 4, 2000.

Reargument Denied June 6, 2000.

Hugh Burns, Asst. Dist. Atty., Philadelphia, for Com., appellant.

L. Roy Zipris, Philadelphia, for appellee.

Before FORD ELLIOTT, STEVENS and ORIE MELVIN, JJ.

FORD ELLIOTT, J.:

¶ 1 The Commonwealth appeals from the trial court's order granting appellee David Duncan's motion to suppress.¹ We reverse and remand.

¶ 2 The relevant facts as found by the trial court and supported by the record are as follows. At approximately 6:00 p.m. on November 10, 1996, a man approached the victim near 20th Street and John F. Kennedy Boulevard in the city of Philadelphia and asked her if she was "working." She said no, and continued walking. The man again approached her, this time claiming to have a gun and threatening to kill her if she did not do as she was told. The man escorted her to a closet beneath the Conrail train tracks where he raped her and stole her money.

¶ 3 During the incident, the victim had an opportunity to see her attacker as they walked for approximately 15 to 20 minutes. She described him 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. The police surveyed area pornography shops, and a cashier from Elgee's Novelty reported that a man matching the victim's description had been in the store near the time of the rape. The cashier further reported that the alleged attacker attempted to make a purchase using a money access bank card, but the card was declined. The cashier provided the police with a list of credit card transactions for that day which identified the bank and account numbers for two cards that were declined. In addition, the police viewed the store's surveillance videotape, which showed a man in an Eagles jacket attempting to make a purchase.

¶ 4 After eliminating one suspect whose bank card transaction was declined, Officer Carl Latorre telephoned Robert Garrison, the manager of Drovers and Mechanics Bank in York, Pennsylvania and requested, without a warrant, the name and address of the owner of the other declined bank card. Mr. Garrison complied with the request, identifying appellee David Duncan whose address was in York County.

¶ 5 The police then requested the York County authorities to obtain and execute a search warrant for appellee's blood, bodily fluids, and hair. York County also provided Officer Latorre with an eight-photo array, which included a photograph of appellee. The photo array was shown to the victim but she failed to identify appellee. Appellee was arrested on March 14, 1997. On March 20, 1997, the prosecutor, who had been told by the victim that she felt she could identify her attacker if she saw him in person, requested a lineup. The prosecutor did not inform defense counsel or the municipal court judge that the victim had failed to identify appellee in a photo array. A lineup was held at which the victim identified appellee as her attacker.

¶ 6 Appellee filed an omnibus motion to suppress in relevant part the identifying information obtained from the bank, the blood, bodily fluids and hair evidence, the lineup identification, and the victim's in-court identification of appellee. At a hearing on the motion, the Commonwealth presented testimony from Officer Latorre, the bank manager, and the victim. The defense presented testimony from appellee and stipulated testimony from appellee's prior counsel regarding the prosecutor's failure to inform of the photo array non-identification. Appellee admitted that he was in Philadelphia all day during the day of the attack wearing a dark green Eagles jacket with a new logo purchased that day.

¶ 7 The trial court found that the warrantless request for appellee's name and address violated appellee's constitutional right to privacy in his bank records under the Pennsylvania Constitution and our supreme 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). (Trial court opinion, 7/21/98 at 5.) The trial court therefore suppressed appellee's name and address obtained from the bank. (Id.) The blood, bodily fluid and hair evidence, and the lineup identification were suppressed as tainted fruit of the initial illegal search of appellee's bank records. (Id.) In addition, the trial court concluded that the failure to disclose the photographic identification evidence was prosecutorial misconduct and that the victim's identification of appellee at the lineup might have been influenced by her memory of seeing appellee's photo. (Id.) Finally, the victim's in-court identification was not suppressed because the trial court found that she had an independent basis for the identification due to her ample opportunity to observe her attacker during the incident and her detailed description of the defendant. (Id. at 6.)

¶ 8 The Commonwealth raises the following issues on appeal:

1. Where a police officer was investigating a rape in which someone who fit the description of the rapist used an ATM card in a store near the rape scene, did the officer violate defendant's right to privacy by asking his bank for his name and address?

1(a). Did the bank have apparent authority to allow the police access to defendant's name and address consistent with its ownership of the ATM card, and pursuant to an agreement with the bank signed by defendant?

2. Where the police obtained a warrant to obtain blood and hair samples from defendant, did the lower court err in ruling that the manner in which police discovered defendant's identity, which cannot be suppressed, required suppression of blood tests?

3. Did the lower court err in suppressing a lineup identification where there was no claim and no finding that the lineup was suggestive, the Commonwealth had no duty to inform defendant that the victim had previously failed to make a photographic identification, and this failure in a nonexistent duty did not make the lineup any less reliable?

Commonwealth brief at 2.²

¶ 9 On review of a grant of a motion to suppress, we consider only the evidence of the defendant's witnesses and so much of the evidence of the Commonwealth that remains uncontradicted. Commonwealth v. Prosek, 700 A.2d 1305, 1307 (Pa.Super.1997). "When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings." Commonwealth v. Farrell, 448 Pa.Super. 492, 672 A.2d 324, 325 (1996).

¶ 10 The trial court viewed the Commonwealth's first issue in the instant case as identical to the issue in DeJohn, framing it as "whether the defendant had a privacy interest in the bank records and whether the Commonwealth has violated that interest." (Trial court opinion, 7/21/98 at 4.) According to the trial court, DeJohn "makes no distinction whether the [warrantless] inquiry [into the bank records] is to discover criminal motive or the suspect's identity." (Id.) Thus, to the trial court the fact that the police only sought appellee's name and address and not his financial data was an irrelevant distinction under DeJohn. The trial court therefore found DeJohn to control the instant issue and suppressed appellee's name and address because the police obtained this information without a valid search warrant.

¶ 11 On appeal, however, both the Commonwealth and appellee address the issue of whether a bank customer has a constitutionally protected privacy interest in his name and address as connected with his bank records. The Commonwealth argues that because it did not seek appellee's financial information but only identification information, DeJohn is inapplicable. Thus, the Commonwealth argues that appellee does not have a constitutionally protected privacy interest in his name and address. (Commonwealth brief at 13.)

¶ 12 Appellee asserts, however, that his expectation of privacy was "not just [in] his name and address, but [in] his privacy in the connection of his name and address to a particular account number." (Appellee's brief at 14.)³ Appellee therefore argues that the ruling of DeJohn applies because a customer's reasonable expectation of privacy in his bank records must encompass the customer's name and address. (Id. at 12.) In support of his argument, appellee urges us to follow California case law as persuasive reasoning that one has a constitutional right to privacy in one's name and address. (Id. at 12-14, citing People v. Chapman, 36 Cal.3d 98, 201 Cal.Rptr. 628, 679 P.2d 62 (Cal.1984).) Finally, appellee argues that the discovery of his name and address is "both revealing and compelling" such that it implicates a right to privacy similar to that afforded financial information or a record of telephone numbers dialed. (Appellee's brief at 14-15, citing Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984) (following DeJohn in rejecting federal law and finding constitutionally protected right to privacy under Article I, § 8 of the Pennsylvania Constitution in pen register of telephone numbers).) We disagree and conclude that the name and address information discovered by the police in the instant matter is substantively different from information afforded constitutional protection.

¶ 13 This case presents an issue of first impression under Article I, Section 8 of the Pennsylvania Constitution, which 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 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.

Pennsylvania recognizes...