Com. v. Govens

• Decision Date: 28 October 1993
• Citation: 429 Pa.Super. 464,632 A.2d 1316
• Parties: COMMONWEALTH of Pennsylvania v. James GOVENS, Appellant.
• Court: Pennsylvania Superior Court

Page 1316

632 A.2d 1316

429 Pa.Super. 464

COMMONWEALTH of Pennsylvania v. James GOVENS, Appellant.

Superior Court of Pennsylvania.

Argued April 19, 1993.

Filed Oct. 28, 1993.

Janis Smarro, Philadelphia, for appellant.

Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HUDOCK, JJ.

WIEAND, Judge.

Where an illegal sale of cocaine through a hole or opening in an apartment door is made in the presence of a police officer, may the police enter the apartment without a warrant for the purpose of identifying and arresting the seller? This is the principal issue which we are called upon to decide in this appeal by James Govens following his conviction for unlawful delivery of a controlled substance and tampering with physical evidence. ¹

I. Factual History

At the pre-trial suppression hearing in this case, Philadelphia Police Officers William Brunswick and Virginia Pagano testified that, on the evening of September 21, 1988, Officer Brunswick, acting in an undercover capacity, had entered an apartment building at 2334 North 20th Street, ² where he had proceeded to the first floor rear apartment and knocked on the door. In response to his knock, a male voice replied from behind a closed door by asking Brunswick what he wanted. Brunswick answered that he wanted a "dime," which signified a ten dollar bag of cocaine. He was told to slip the money through a hole in the door. This he did. He placed two five dollar bills, whose serial numbers had been pre-recorded, through the hole in the door; and, seconds later, a small plastic packet, containing a white powder, was passed out through the hole. Brunswick said that the hand of the male passing the packet through the door had been black and that it had contained, on one of the fingers, a large, distinctive, gold ring in the shape of a ram's head. After the transaction had been completed, Brunswick exited the building and reported what had transpired to a backup team, which consisted of a sergeant and several other officers. The powder in the packet was field tested and found to contain cocaine. Brunswick then returned to the Narcotics Unit headquarters to wait for the backup team to return.

Within fifteen or twenty minutes after Officer Brunswick had made the purchase of cocaine, the backup team proceeded to the same apartment. There, they knocked on the door and identified themselves as police. Officer Pagano testified that she had banged on the door, while at the same time yelling, "Police." No one responded to the knocking, but Officer Pagano heard noises from within the apartment. These she described as "shuffling and moving about as if someone [were] trying either to get out the back way or open a window." ³ Pagano then pushed on the door, which was unlocked, and it opened. When she entered the apartment, she looked to her left and observed appellant standing in a bathroom, where he was dumping numerous plastic packets into the toilet. The packets were subsequently determined to contain cocaine. Appellant was placed under arrest, and police recovered one hundred and seventy-six (176) packets of cocaine from the toilet and bathroom area. They also seized a large gold ram's head ring, which appellant was wearing, and six hundred dollars in cash, including the two pre-recorded five dollar bills which Officer Brunswick had used to purchase cocaine. ⁴ Neither a search warrant nor an arrest warrant had been obtained prior to entry of the apartment.

Appellant did not testify at the suppression hearing, and no evidence was presented on his behalf.

The suppression court held that inasmuch as appellant's sale of contraband had exceeded the threshold of the apartment and, therefore, could be observed by persons outside the apartment, he no longer had any reasonable expectation of privacy in the apartment. We shall examine this and other arguments carefully.

II. Appellant's Standing

First, however, we must consider the Commonwealth's argument that appellant lacks standing to challenge police conduct in this case. This is an argument which is being made for the first time before this Court. It was not an argument made by the Commonwealth during the suppression hearing. As a result, there was no testimony regarding the identity of the person who had leased the apartment. Similarly, there was no evidence regarding the status of appellant or the reason for his presence in the apartment. Whether he was tenant, guest, invitee or trespasser simply was not developed by evidence at the suppression hearing. Consequently, appellant's standing to challenge the seizure of contraband was assumed, and with respect thereto the suppression court made no findings.

It was not until the colloquy occurred in which appellant waived his right to be tried by jury that he gave an address different than that of the apartment in which he had been arrested. It is on the basis solely of this response that the Commonwealth now argues that appellant was not an occupant of the apartment where contraband was seized and, therefore, lacks standing.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court "abandoned a separate inquiry into a defendant's 'standing' to contest an allegedly illegal search in favor of an inquiry that focuse[s] directly on the substance of the defendant's claim that he or she possessed a 'legitimate expectation of privacy' in the area searched." Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980). See: United States v. Maddox, 944 F.2d 1223, 1234 (6th Cir.1991), cert. denied, 502 U.S. 992, 112 S.Ct. 610, 116 L.Ed.2d 633 (1991) (issue of standing collapses into merits in Fourth Amendment cases); United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986) (since Rakas, issues of standing are analyzed under substantive Fourth Amendment doctrine). Thus, "an illegal search only violates the rights of those who have 'a legitimate expectation of privacy in the invaded place.' " United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980), quoting Rakas v. Illinois, supra, 439 U.S. at 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401. See also: United States v. Wiley, 847 F.2d 480, 481 (8th Cir.1988); United States v. Antone, 753 F.2d 1301, 1306 (5th Cir.1985), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985); United States v. Perez, 700 F.2d 1232, 1236 (8th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 884 (1984).

The fact that appellant may have resided elsewhere would not alone be determinative of his standing to challenge the seizure of contraband in this case. It is well settled that "a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place." Rakas v. Illinois, supra, 439 U.S. at 142, 99 S.Ct. at 430, 58 L.Ed.2d at 400. See also: United States v. Robinson, 698 F.2d 448, 454 (D.C.Cir.1983). E.g. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (holding that overnight house guest had legitimate expectation of privacy in host's home so as to be able to claim protection of Fourth Amendment against illegal entry by police).

The cases which have been decided post-Rakas have generally held that a casual visitor who is merely present in another's person's home does not have a legitimate expectation of privacy to contest an illegal entry by police into that home. See, e.g.: Commonwealth v. Tann, 500 Pa. 593, 598-599, 459 A.2d 322, 325 (1983); Commonwealth v. Ferretti, 395 Pa.Super. 629, 577 A.2d 1375 (1990). See also: United States v. Adamo, 742 F.2d 927, 947-948 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985); United States v. Perez, supra. However, "a defendant who is more than a casual visitor to an apartment or dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution ... to challenge the search and seizure of the illegal drugs which he is accused of possessing." State v. Adkins, 176 W.Va. 613, 616, 346 S.E.2d 762, 766 (1986). See also: United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir.1988); United States v. Echegoyen, supra; United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984); State v. Corpier, 793 S.W.2d 430, 436-437 (Mo.App.1990). Thus, "an occupant other than the owner or lessee of an apartment [must] demonstrate a significant and current interest in the searched premises in order to establish an expectation of privacy." United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984). Factors to be considered in determining whether a defendant has a legitimate expectation of privacy in another person's home include: (1) possession of a key to the premises; (2) having unlimited access to the premises; (3) storing of clothing or other possessions on the premises; (4) involvement in illegal activities conducted on the premises; (5) ability to exclude other persons from the premises; and (6) expression of a subjective expectation of privacy in the premises. See: United States v. Nabors, 761 F.2d 465, 469-470 (8th Cir.1985), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 123 (1985); United States v. Haydel, 649 F.2d 1152, 1154-1155 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982).

In the instant case, we do not know appellant's precise status vis-a-vis the apartment in which he was arrested. We only know that he was present when the police entered the apartment without a warrant, that he had been engaged in selling cocaine from the apartment and that he apparently had dominion and control over the apartment as well as the cocaine and other evidence that was seized by police. Under these circumstances, there is nothing to...