Com. v. Hawkins

• Decision Date: 19 August 1998
• Citation: 553 Pa. 76,718 A.2d 265
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Raphieal Lamon HAWKINS, Appellant.
• Court: Pennsylvania Supreme Court

Page 265

718 A.2d 265

553 Pa. 76

COMMONWEALTH of Pennsylvania, Appellee, v. Raphieal Lamon HAWKINS, Appellant.

Supreme Court of Pennsylvania.

Argued March 11, 1998.

Decided Aug. 19, 1998.

Ralph D. Karsh, Pittsburgh, for Raphieal Lamon Hawkins.

Claire C. Capristo, Robert A. Willig, Pittsburgh, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

Appellant Raphieal Lamon Hawkins ("Hawkins") claims that the Superior Court erred in affirming the trial court's denial of his motion to suppress drugs seized from his codefendant.

On April 22, 1995, Officer Larry Scirotto of the City of Pittsburgh Police Department was on foot patrol in an area known for drug activity. While in a restaurant on Federal Street, Officer Scirotto observed Hawkins and another individual, Regis Hankowitz ("Hankowitz"), walking in close proximity. When Hawkins reached an intersection, he stopped, scanned the cross-streets, then returned to speak with Hankowitz. As the men conversed at a distance of approximately 35 to 50 feet from Officer Scirotto's position, Hawkins reached toward his mouth, produced several objects and displayed them to Hankowitz. After looking at the objects, Hankowitz placed them into his own mouth. Hankowitz then handed currency to Hawkins, after which the men parted company.

Immediately after the transaction, Officer Scirotto apprehended Hankowitz and requested that he remove the objects from his mouth. When Hankowitz refused, Officer Scirotto applied pressure to Hankowitz's throat to prevent him from swallowing. Hankowitz then spit out three balloons containing a total of .11 grams of heroin. Another officer apprehended and searched Hawkins, confiscating $93.00 in cash. Hawkins was arrested and charged with unlawful possession of a controlled substance, possession with intent to deliver a controlled substance, and unlawful delivery of a controlled substance. 35 P.S. § 780-113(a)(16), (30).

Prior to trial, Hawkins filed a motion to suppress the currency seized from him, as well as the heroin taken from Hankowitz. At the suppression hearing, Officer Scirotto described his observations and actions, including the transfer of the drugs from Hawkins and the subsequent seizure from Hankowitz. Hawkins offered no testimony or other evidence. At the conclusion of the hearing, the trial court ruled that the currency and associated testimony would not be allowed into evidence at trial, as the Commonwealth failed to present testimony from the officer who conducted the search of and seizure from Hawkins. The court declined, however, to suppress evidence related to the heroin seized from Hankowitz.

After a jury trial, Hawkins was convicted on all three counts. At sentencing, the trial court merged the offenses and imposed a term of incarceration of 16 to 32 months.

On appeal, the Superior Court affirmed. The Superior Court found that, as a party charged with a possessory offense, Hawkins had automatic standing to seek suppression of the evidence related to the seizure from Hankowitz. However, the court reasoned that Hawkins' abandonment of the heroin, together with his failure to establish a reasonable expectation of privacy in the contraband once he transferred it to Hankowitz, was fatal to his claim.

Hawkins asserts that this was error. He argues that the merits of his appeal should not have been decided upon privacy grounds once his standing was acknowledged. Alternatively, Hawkins argues that criminal defendants, as a matter of state constitutional jurisprudence, should be able to vicariously assert privacy interests belonging to others in order to challenge allegedly intrusive police conduct.

The concept of standing in a criminal search and seizure context empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government's evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution. See generally Commonwealth v. Price, 543 Pa. 403, 411-12, 672 A.2d 280, 284 (1996); Commonwealth v. Peterson, 535 Pa. 492, 497 636 A.2d 615, 617 (1993); Sprague v. Casey, 520 Pa. 38, 43, 550 A.2d 184, 187 (1988). The traditional formulation for standing requires a defendant to demonstrate one of the following personal interests:

(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 include[s] as an essential element of the prosecution's case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the searched premises.

Commonwealth v. Peterkin, 511 Pa. 299, 309, 513 A.2d 373, 378 (1986) (citing Commonwealth v. Treftz, 465 Pa. 614, 621-22, 351 A.2d 265, 268, cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976)), cert. denied, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1987). This Court has accorded standing automatically, with no preliminary showing of a proprietary or possessory interest by the defendant, in the third of these circumstances, namely, where possession at the time of the contested search and seizure is an essential element of the prosecution's case. See Peterkin, 511 Pa. at 309, 513 A.2d at 378; Treftz, 465 Pa. at 622 & n. 8, 351 A.2d at 268 & n. 8; see generally Peterson, 535 Pa. at 497, 636 A.2d at 617.

This doctrine of automatic standing has its genesis in the decisions of the United States Supreme Court. See Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732-33, 4 L.Ed.2d 697 (1960), cited in Commonwealth v. Weeden, 457 Pa. 436, 449, 322 A.2d 343, 349-51 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975). As a matter of Fourth Amendment jurisprudence, however, the United States Supreme Court has abandoned the construct in favor of a requirement that a defendant establish a legitimate expectation of privacy in the invaded place as a predicate to standing. See United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980).

While this Court has stated that automatic standing maintains continued vitality under Article 1, Section 8 of the Pennsylvania Constitution, see Commonwealth v. Sell, 504 Pa. 46, 66-68, 470 A.2d 457, 468-69 (1983); see also Peterson, 535 Pa. at 497, 636 A.2d at 617, these decisions have recognized that the essential effect is to entitle a defendant to an adjudication of the merits of a suppression motion. See id. at 497, 636 A.2d at 617. In order to prevail on such a motion, however, a defendant is required to separately demonstrate a personal privacy interest in the area searched or effects seized, and that such interest was "actual, societally sanctioned as reasonable, and justifiable." Peterson, 535 at 497, 636 A.2d at 617. ¹ Such a legitimate expectation of privacy is absent where an owner or possessor meaningfully abdicates his control, ownership or possessory interest. Sell, 504 at 67, 470 A.2d at 469.

In this case, while acknowledging his initial standing to seek suppression, the Superior Court correctly determined that Hawkins abandoned any personal privacy interest upon transferring the contraband to Hankowitz. ² Moreover, Hawkins simply cannot demonstrate, and it would be frivolous to assert, an expectation of privacy in the situs from which the contraband was seized, namely, the mouth of his codefendant. Even if a subjective expectation could be claimed, such an expectation would not be objectively reasonable. See generally Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991) (finding that a defendant had no reasonable expectation of privacy following drug delivery); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (finding that, by selling heroin, the defendant relinquished his possessory interest, and, correspondingly, the right to object to the seizure). ³

Since Hawkins lacked a legitimate expectation of privacy, his suppression motion was properly denied.

Finally, Hawkins argues that, notwithstanding the absence of a personal privacy interest, criminal defendants should be permitted to vicariously assert the privacy interests of others in order to dissuade intentional, intrusive police conduct. This concept of derivative standing would involve an extension of the exclusionary rule under Article 1, Section 8 to all unreasonable government intrusions, regardless of whether the intrusion affects the personal privacy rights of the defendant.

Preliminarily, we note that the United States Supreme Court has declined to apply the federal exclusionary rule to constitutional violations that are not personal to the defendant. ⁴ See Jones, 362 U.S. at 261, 80 S.Ct. at 731 (stating that "[i]n order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else"); see also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. at 133-34, 99 S.Ct. at 425. When asked to decide whether our state Constitution provides greater privileges and protections than the United States Constitution, we evaluate the request in light of the following factors: 1) the text of the Pennsylvania constitutional provision; 2) the history of the provision, including Pennsylvania case law; 3) related case law from other states; and 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991).

Article 1, Section 8 provides:

Security from Searches and Seizures

The people shall be secure in their...