Com. v. Peterson

• Decision Date: 19 August 1991
• Citation: 408 Pa.Super. 22,596 A.2d 172
• Parties: COMMONWEALTH of Pennsylvania v. Warren PETERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 172

596 A.2d 172

408 Pa.Super. 22

COMMONWEALTH of Pennsylvania v. Warren PETERSON, Appellant.

Superior Court of Pennsylvania.

Argued March 7, 1991.

Filed Aug. 19, 1991.

Karl Baker, Asst. Public Defender, Philadelphia, for appellant.

John K. McDonald, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before BECK, POPOVICH and HOFFMAN, JJ.

BECK, Judge:

The issue in this appeal is whether under the fourth amendment a defendant has a reasonable expectation of privacy in an uninhabitable structure which appellant was using to engage in the sale of narcotics. We conclude that appellant had no constitutionally-protected expectations of privacy in the premises searched and as such the police entry did not infringe on fourth amendment rights. Alternatively, we find that exigent circumstances existed which compelled the police to effect a warrantless entry. Therefore, the trial court correctly denied the appellant's motion to suppress. We affirm the judgment of sentence.

The facts underlying the instant appeal are as follows. On the evening of December 14, 1987, Officer Steven Powell, acting on an anonymous tip, went to 2001 West Turner Street in Philadelphia. Powell had been informed that crack and powdered cocaine were being sold through a hole in the door at this location. When the police officer arrived he observed a heavily secured structure which previously had been a storefront but clearly was no longer being used for such purposes. The front windows of the structure were covered with heavy metal gratings and there was a three inch hole in the wooden front door where a doorknob might normally be located. Based on his experience, coupled with the information from the anonymous tip, the officer concluded that the structure was the site of a narcotics selling operation known as a "gate house." A gate house is characterized by the following features: a heavily fortified location; a juvenile or young person manning the sales from inside; quick turnover and sales; and no personal or visual contact between buyer and seller (i.e., the money goes into the hole in the door and the drugs come out).

Satisfied that he had identified the location which was the subject of the tip, Officer Powell knocked on the door. A voice from inside asked, "What do you want?" Powell answered that he wanted "one dime," meaning an amount of cocaine he could purchase for ten dollars. Powell put a ten-dollar bill through the hole in the door and received the drugs. The bill had been pre-recorded and treated with a perspiration reactive powder which stained whoever handled it with an indelible bright blue dye. The dye allows police later to identify the person who had handled the money despite the lack of visual identification. Realizing that the blue dye becomes dramatically visible almost immediately, Powell and his fellow officers attempted to enter the structure to arrest the drug seller. The police knocked on the door and identified themselves. The officers heard "thumping and rustling" noises coming from within the structure but received no answer. The door was secured by heavy bolts and was braced from the inside by several large pieces of wood. The only way the police could open it was by finding a weak point and literally breaking the door in half. When the police entered they found "an unoccupied or abandoned type of property," which appeared to be "an old storefront" but which, as the officer testified, contained "no inventory in there, or anything else that would make it a store." On a sofa just inside the door was a bag containing packets and vials of cocaine in powdered and crack form. In a back room adjacent to the storefront, the police found appellant. He had blue dye all over his hands and on his pants pocket. The ten dollar bill used by Powell to buy the cocaine was in the pocket. Appellant had been in bed with a woman who likewise had blue dye on her body.

The officer described the area in which he found appellant as "disgusting." There were no toilet facilities and there was a five-gallon bucket containing human waste. The officer was reluctant even to describe the place appellant was found as a "bed" since it was makeshift at best. There was no indication that appellant or anyone was occupying the storefront for any purpose other than to disguise and conduct illegal drug activity. In fact, the record indicates that the premises were wholly unsuitable for habitation and were not being used as any kind of residence. ¹ When appellant was asked for his address following arrest, he gave it as 1303 S. Dorrance Street in Philadelphia, and not the building in which he was found.

Appellant sought to suppress the evidence seized following the officers' warrantless entry into the structure. Following a hearing, Judge Jane C. Greenspan found that "the abandoned storefront was not arguably a home in the sense intended to be protected by the Fourth Amendment. Having no indicia of a home, it can fairly be said that defendant (not even a resident) had no reasonable or legitimate expectation of privacy in the premises." Judge Greenspan further found that exigent circumstances justified the warrantless entry. We agree with the conclusions of the trial court.

The fourth amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Our courts consistently have held that the application of the fourth amendment depends upon whether the person invoking its protection has a "justifiable," "legitimate" expectation of privacy that has been invaded by government action. See, e.g., Commonwealth v. Oglialoro, 525 Pa. 250, 256, 579 A.2d 1288, 1291 (1990)("The controlling consideration is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched."); see also Commonwealth v. Brundidge, 404 Pa.Super. 106, ----, 590 A.2d 302, 305-306 (1991); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). The individual's actual or subjective expectation of privacy alone does not control whether constitutional protection will be extended. See, e.g., Hudson v. Palmer, 468 U.S. 517, 525-526 n. 7, 104 S.Ct. 3194, 3199 n. 7, 82 L.Ed.2d 393 (1984); Commonwealth v. Copenhefer, 526 Pa. 555, 561, 587 A.2d 1353, 1356 (1991). As Mr. Justice Powell noted in his concurring opinion in Rakas, "it is not enough that an individual desired or anticipated that he would be free from governmental intrusion." Rakas v. Illinois, 439 U.S. at 151-152, 99 S.Ct. at 434-35 (Powell, J., concurring). The test of legitimacy is not, and could not be, whether the individual hopes to conceal his activity. See Commonwealth v. Copenhefer, 526 Pa. at 561, 587 A.2d at 1356 ("A defendant's attempt to secrete evidence of a crime is not synonymous with a legally cognizable expectation of privacy."); see also Oliver v. United States, 466 U.S. 170, 182-183, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984). In order to claim fourth amendment protection, an individual's expectation of privacy must be one that society is prepared to recognize as reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (Harlan, J., concurring). The resolution of this issue depends upon the totality of the circumstances and ultimately rests upon a balancing of the societal interests involved. Hudson v. Palmer, 468 U.S. at 527, 104 S.Ct. at 3200; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

In support of his argument that he had a "reasonable expectation of privacy" in the area searched, appellant points to several factors all of which, in our view, establish nothing more than appellant's subjective interest in concealing and keeping "private" his own conduct. Specifically, appellant notes that the use of a heavily fortified door and the fact that he chose to engage in intimate, sexual activity on the premises illustrate his expectation that "this area would remain private." This approach is untenable and has been uniformly rejected by our courts. As Mr. Justice Rehnquist (now Chief Justice) stated in Rakas v. Illinois:

Obviously ... a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. 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." His presence, in the words of Jones [citation omitted] is "wrongful;" his expectation is not "one that society is prepared to recognize as 'reasonable.' "

Id. 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12 [citations omitted].

Likewise, the United States Supreme Court, in Oliver v. United States, supra, concluded that legitimate expectations of privacy could not be created simply by building fences and posting "no trespassing" signs around secluded land used to cultivate marijuana. The Court noted: "Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post 'No Trespassing' signs." 466 U.S. at 182 n. 13, 104 S.Ct. at 1743 n. 13.

The fortification of the door in the instant case no more legitimized appellant's expectations of privacy than did the erecting of fences and posting of signs in the Oliver case. We are persuaded that appellant actually desired that his activities within the gate house remain private and free from government intrusion. However, in our view it would trivialize the fourth amendment to base its protection on the number and strength of the barricades an individual erects to shield his activities from official detection. The "legitimacy" element of the inquiry must have more content than appellant sugge...