Com. v. Sell

Decision Date30 December 1983
Docket NumberNos. 81-3-474 and 234,s. 81-3-474 and 234
Citation504 Pa. 46,470 A.2d 457
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Larry SELL, Appellant. Oct. Term 1979.
CourtPennsylvania Supreme Court

Robert L. Steinberg, Asst. Dist. Atty., for appellee.



NIX, Justice.

In this appeal we have agreed to decide whether, under Article I, section 8 of the Pennsylvania Constitution, which guarantees the citizens of this Commonwealth protection against unreasonable governmental searches and seizures, a defendant accused of a possessory crime will continue to have "automatic standing" to challenge the admissibility of evidence alleged to be the fruit of an illegal search and seizure. The United States Supreme Court has abolished "automatic standing" under the Fourth Amendment to the federal Constitution. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In interpreting Article I, section 8, therefore, we must decide whether to retain the "automatic standing" principle as a matter of state constitutional law, or to embrace the reasoning and conclusions of the United States Supreme Court and eliminate that concept.


On December 11, 1978 the Allentown Police Department executed a search warrant at an amusement arcade known as Games Galore located in the city of Allentown. The items set forth in the search warrant included firearms stolen in a recent burglary. As a result of the search, the police retrieved a number of firearms. These firearms were located on open shelves beneath the counter in the arcade. It was later established that this area was one to which all of the employees had access.

Appellant, who was a partner in the business, was not present at the time that the search was conducted. 1 Subsequent to the search appellant was arrested and charged with the crimes of receiving stolen property and criminal conspiracy. The firearms recovered during the search formed the basis for the charge of receiving stolen property. Appellant, through his counsel in a pre-trial motion, sought to suppress the use of the fruits derived from the search, contending that the search warrant was defective. The court of common pleas determined that appellant had "automatic standing" to assert the illegality of the search and, further concluding that the warrant was defective because the reliability of the informant had not been properly established, suppressed the seized evidence. The Superior Court, 288 Pa.Super. 371, 432 A.2d 206, disagreed and held that appellant did not have standing. That court concluded that the concept of "automatic" standing had been overruled and was no longer viable and further that the appellant was unable to establish "actual" standing. We permitted review and are now being called upon to determine whether appellant was entitled to "automatic standing" under Article I, Section 8, of the Pennsylvania Constitution.

In undertaking our interpretation of that section of the state constitution, we find guidance in the admonitions of Mr. Justice Brennan of the United States Supreme Court:

[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.

Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977).

Accordingly, we shall begin our discussion by analyzing the federal case law in the area of Fourth Amendment standing.


It is appropriate to begin by tracing the historical development of the concept of Fourth Amendment 2 standing. The requirement that a criminal defendant have standing to maintain a motion to suppress evidence alleged to have been obtained in violation of the Fourth Amendment's proscription of unreasonable searches and seizures was developed by the federal courts in response to the United States Supreme Court's decision in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The obvious intent of the standing requirement, which, from its inception, was more stringent than the rules generally employed to determine standing, see Scott, Standing in the Supreme Court-A Functional Analysis, 86 Harv.L.Rev. 645 (1973) (an analysis of general standing), was to limit the applicability of the exclusionary rule announced in Weeks. 3 See, e.g., Edwards Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471 (1952); Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings and the Reasonable Expectation of Privacy, 31 Case W.Res.L.Rev. 656 (1981); Comment, 55 Mich.L.Rev. 567 (1957). Justification for imposing a standing requirement was most often found in the prevailing view that Fourth Amendment rights are personal rights which may not be vicariously asserted. See, e.g., Grainger v. United States, 158 F.2d 236 (4th Cir.1946); Ingram v. United States, 113 F.2d 966 (9th Cir.1940); Lewis v. United States, 92 F.2d 952 (10th Cir.1937); Mello v. United States, 66 F.2d 135 (3d Cir.1933); Brown v. United States, 61 F.2d 363 (8th Cir.1932); Shore v. United States, 60 U.S.App.D.C. 137, 49 F.2d 519, cert. denied, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469 (1931); In Re Dooley, 48 F.2d 121 (2d Cir.1931); Coon v. United States, 36 F.2d 164 (10th Cir.1929). Thus, standing to maintain a motion to suppress was sustained only where the search or seizure sought to be challenged was claimed to have violated the defendant's own Fourth Amendment rights. See, e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498 (D.C.Cir.1950), aff'd., 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Ingram v. United States, supra; United States v. Seeman, 115 F.2d 371 (2d Cir.1940); Cravens v. United States, 62 F.2d 261 (8th Cir.1932), cert. denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933); United States v. DeVasto, 52 F.2d 26 (2d Cir.), cert. denied, 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573 (1931); Simmons v. United States, 18 F.2d 85 (8th Cir.1927); Graham v. United States, 15 F.2d 740 (8th Cir.1926), cert. denied sub nom. O'Fallon v. United States, 274 U.S. 743, 47 S.Ct. 587, 71 L.Ed. 1321 (1927).

The federal courts' early Fourth Amendment standing tests, known collectively as the "trespass doctrine", were based solely on the relative strength of the defendant's possessory interest in the items seized or the property searched. See White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 33 (1970); Edwards, Standing to Suppress Unreasonably Seized Evidence, supra; Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings, and the Reasonable Expectation of Privacy, supra. In essence, these rules found that the "personal" requirement was satisfied by a showing of a property or possessory right in the object seized or the place searched. Accordingly, the federal courts of appeals generally required an affirmative claim of ownership or possession of the seized property or a substantial possessory interest in the premises searched to establish Fourth Amendment standing. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); see generally Annot., 4 L.Ed.2d 1999 (1960); Annot., 96 L.Ed. 66 (1952).

As the term "trespass doctrine" implies, the federal courts relied on the common law of property in determining the question of standing:

They have denied standing to "guests" and "invitees" (e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 218 F.2d 47, 48; Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 384; In Re Nassetta, 125 F.2d 924 [2nd Cir.1942]; Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234), and employees, who though in "control" or "occupancy" lacked "possession" (e.g., Connolly v. Medalie, 58 F.2d 629, 630 [2nd Cir.1932]; United States v. Conoscente, 63 F.2d 811 [2nd Cir.1933] ). The necessary quantum of interest has been distinguished as being, variously, "ownership in or right to possession of the premises" (e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48 [72 S.Ct. 93, 96 L.Ed. 59] ), the interest of a "lessee or licensee" (United States v. De Bousi, 32 F.2d 902 [D.C.Mass.] ), or of one with "dominion" (McMillan v. United States, 26 F.2d 58, 60 [10th Cir.1928]; Steeber v. United States, 198 F.2d 615, 617 [10th Cir.1952].)

Jones v. United States, supra 362 U.S. at 265-266, 80 S.Ct. at 733.

The requirement of a showing of ownership or possession of the property seized created a dilemma for defendants accused of crimes of which possession is itself an element. Judge Learned Hand articulated the position of such defendants in Connolly v. Medalie, 58 F.2d 629 (2d Cir.1932):

Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.

Id. at 630 (emphasis added).

Under the "trespass doctrine's" formulation of standing, therefore, a defendant charged with a possessory...

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