Com. v. Gordon
| Decision Date | 18 February 1997 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Charles GORDON, Appellee. |
| Court | Pennsylvania Supreme Court |
John W. Packel, Stuart B. Lev, Philadelphia, for Charles Gordon.
Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
The Commonwealth appeals the Superior Court's Order of March 15, 1994, vacating the judgment of sentence entered by the Court of Common Pleas of Philadelphia County (trial court) against Charles Gordon (Gordon) for receiving stolen property, 1 and remanding the matter for a new trial. We reverse.
The record reveals that on December 8, 1991, Philadelphia police officer Frank Pavgouzas received police radio information that a white male, approximately twenty years old with blond hair, wearing a gray or brown jacket and jeans, had snatched a purse from Cathy Babe (victim). Officer Pavgouzas arrived at the crime scene, near Frankford and Cheltenham Avenues, within five minutes of receiving the call. The officer proceeded to a rear alley where an elderly man told him that a man fitting the description of the perpetrator had been living in an abandoned house down the alley.
As Officer Pavgouzas walked through the alley, he observed a house that stood out from the rest of the row houses on the block because the exterior of the house was extremely dilapidated, there were no window treatments and knee-high weeds covered the yard. The rear door was open and the top door hinge had broken away from the door frame. Officer Pavgouzas entered the kitchen of the house and observed that the sink was filled with dirt, trash was piled throughout the room, and there were no kitchen appliances.
When hearing a television in the next room, Officer Pavgouzas pushed aside a sheet hanging from a doorway leading to the dining room. The officer observed a near empty room with a television on a milk crate, a lamp, a "beer ball" and a black pocketbook lying on the floor. He saw no personal effects such as clothing, mail or other furniture in the room. Gordon, a blond-haired young man wearing a brown jacket and blue pants, was sitting on a mattress on the floor.
Officer Pavgouzas ordered Gordon to stand up and the officer observed a blue change purse that was underneath Gordon on the mattress. The officer opened the blue change purse and found the identification of the victim. He ordered Gordon to leave the house, radioed the officer who was with the victim and asked him to bring the victim to the scene. She arrived and identified Gordon as the man who grabbed her purse, and she also identified the black pocketbook and blue change purse as her property.
Gordon filed a motion to suppress evidence found in the house. The Court of Common Pleas of Philadelphia County, sitting as a suppression court (suppression court) denied Gordon's motion to suppress, holding that the warrantless search of the house did not violate Gordon's rights under either the Fourth Amendment of the U.S. Constitution or Article I, Section 8 of the Pennsylvania Constitution. Following a non-jury trial, the trial court found Gordon guilty of receiving stolen property, but acquitted him of robbery 2 and simple assault. 3 The trial court denied Gordon's post-verdict motion challenging the constitutionality of the warrantless search of the house and sentenced him to five years of probation.
The Superior Court reversed the suppression court's denial of Gordon's motion to suppress, vacated the trial court's judgment of sentence and remanded the matter for a new trial. 4 The Superior Court held that the police violated Gordon's right to be free from unreasonable governmental searches and seizures under Article I, Section 8 of the Pennsylvania Constitution. The Commonwealth filed a timely Petition for Allowance of Appeal challenging the Superior Court's conclusion that Gordon had a constitutionally protected zone of privacy in a room of an abandoned house.
We must decide whether an individual has a reasonable and legitimate expectation of privacy in a room of an abandoned 5 house under Article I, Section 8 of the Pennsylvania Constitution.
Article I, Section 8 of the Pennsylvania Constitution provides as follows:
Security from Searches and Seizures
Section 8. 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.
Evidence discovered as a result of a search that violates the fundamental constitutional guarantees of Article I, Section 8 will be suppressed. Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991). We note that in Pennsylvania any defendant charged with a possessory crime, including receiving stolen property, has automatic standing to challenge a search and seizure under Article I, Section 8. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983).
In Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993), we held that a warrantless police search of an abandoned storefront does not violate Article I, Section 8 of the Pennsylvania Constitution. In Peterson, a police officer approached a "gate house" to make a controlled purchase of cocaine using a ten dollar bill marked with indelible ink, which was activated by perspiration to become blue dye. 6 After exchanging the ten dollar bill for a package of white powder, police entered the gate house without a warrant and found the defendant in a back room with blue dye on his body. The trial court denied the defendant's motion to suppress, found him guilty of delivery and possession with intent to deliver cocaine, and sentenced him to three to six years imprisonment. The Superior Court affirmed the judgment of sentence.
On appeal, we analyzed the defendant's claim that the police violated his rights under Article I, Section 8 of the Pennsylvania Constitution using a twofold test. That test requires a person to (1) have exhibited a subjective expectation of privacy and (2) have demonstrated that the expectation is one that society is prepared to recognize as reasonable and legitimate. Peterson. The defendant bears the burden of proving that his subjective expectation of privacy is one that society is willing to recognize as legitimate. 7 Id. The defendant must establish more than just a subjective expectation of freedom from intrusion, because
[a] burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as 'legitimate.'
Peterson, 535 Pa. at 500, 636 A.2d at 619, quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978). We consider the totality of the circumstances and carefully weigh the societal interests involved when determining the legitimacy of such an expectation. Peterson. Particularly, a defendant must establish a possessory interest, a legitimate presence, or some "factor from which a reasonable and justifiable expectation of privacy could be deduced" to prove that this subjective expectation of privacy is legitimate. Peterson, 535 Pa. at 501, 636 A.2d at 619.
In Peterson, we referred to Commonwealth v. Cameron, 385 Pa.Super. 492, 561 A.2d 783 (1989), alloc. denied, 525 Pa. 576, 575 A.2d 108 (1990), a Superior Court case with a similar fact pattern. The Superior Court in Cameron overruled the trial court, who granted the defendant's motion to suppress evidence found by the police when they entered an abandoned house without a warrant. After finding packets of cocaine that Cameron had thrown behind a couch, the police arrested him. The trial court granted the defendant's motion to suppress, holding that the presence of a working television, a couch and food exhibited that the abandoned house was a dwelling place and was accordingly protected by Article I, Section 8. When reversing the trial court, the Superior Court acknowledged that Cameron manifested a subjective expectation of privacy by keeping a television, couch and food in the abandoned house. However, the Superior Court held that while Cameron did not need to show a property interest, he did need to establish some legal or de facto right to control the premises at issue to establish a reasonable and legitimate expectation of privacy. Because there was no evidence of Cameron's right to control the house, the Superior Court concluded that society was not willing to recognize his subjective expectation of privacy in the abandoned house as legitimate.
Similar to Cameron, the defendant in Peterson did not establish either a possessory interest, a legitimate presence or a characteristic of ownership in the abandoned storefront from which society could recognize an expectation of privacy. Thus, he did not prove that his expectation of privacy was legitimate. As this legitimacy is the "sine qua non for establishing that the government's intrusion was unlawful," Peterson, 535 Pa. at 501, 636 A.2d at 619, we held that the warrantless police entry into an abandoned storefront where drugs were being sold did not violate Article I, Section 8's prohibition against unreasonable searches and seizures. Peterson.
With this analysis in mind, we now examine the suppression court's decision to deny Gordon's motion to suppress the evidence discovered in the dining room of the abandoned house. When reviewing the suppression court's denial of a motion to suppress, the "appellate court's responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and...
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