Com. v. Sell

• Decision Date: 06 August 1981
• Citation: 288 Pa.Super. 371,432 A.2d 206
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Larry SELL.
• Court: Pennsylvania Superior Court

Page 206

432 A.2d 206

288 Pa.Super. 371

COMMONWEALTH of Pennsylvania, Appellant, v. Larry SELL.

Superior Court of Pennsylvania.

Argued June 9, 1980.

Filed March 6, 1981.

Reargument Denied Aug. 6, 1981.

Robert Lee Steinberg, Asst. Dist. Atty., Allentown, for Commonwealth, appellant.

C. Steven Miller, Allentown, for appellee.

Before PRICE, WICKERSHAM and LIPEZ, JJ.

PRICE, Judge:

The Commonwealth appeals from the order of the Court of Common Pleas of Lehigh County granting appellee's motion to suppress certain items seized in a search conducted pursuant to an improperly issued search warrant. The sole issue presented in this appeal is whether appellee had standing to challenge the illegal search. ¹ For the reasons stated herein, we conclude that appellee lacked the requisite standing and, therefore, reverse the order of the court below and remand for trial.

The following facts were adduced at the suppression hearing. On the morning of December 11, 1978, pursuant to a search warrant issued earlier that day, Detective John Young and other officers of the Allentown Police Department conducted a search of the premises known as Games Galore, an amusement arcade located at 110 North Sixth Street, City of Allentown, Lehigh County. The items enumerated in the warrant included various firearms stolen in a recent burglary. Games Galore is an amusement center providing pinball machines, computer games, pool tables and other sundry diversions for its patrons. The enterprise occupies the first floor of the building at 110 North Sixth Street and the second and third floors contain apartments rented by the owner of the building, one Joseph Clark. Mr. Clark is also the owner of Games Galore.

Much of the testimony at the suppression hearing concerned appellee's role in Games Galore. Mr. Clark testified that prior to the opening of the business in August of 1978, he had employed appellee as a serviceman to do general maintenance and repair work on the apartments. Appellee subsequently assisted Mr. Clark in renovating the first floor in preparation for the opening of the business, ² and the two men then entered into a business arrangement whereby appellee would be a "working partner" and would receive half of the net profits from Games Galore so long as Mr. Clark "saw to it that way." N.T. Suppression Hearing 9. As a "working partner," appellee was responsible for the actual daily operation of the business. Mr. Clark, however, kept the business' records, hired and discharged employees, and authorized all financial transactions. Furthermore, Mr. Clark testified that he had the authority to discharge appellee and reiterated that appellee was to receive fifty percent of the profits only so long as he continued working at Games Galore.

Appellee testified that as daily manager of the business he had authority to hire and discharge employees and to collect the daily receipts, which were then divided with Mr. Clark. Appellee also had keys to the building and unlimited access to the business premises. As manager, appellee was primarily responsible for the security of the establishment and, accordingly, had authority to exclude or remove individuals in the event of mischief or destruction of property on the premises. He did not, however, have keys to any of the game machines nor did he contribute any capital toward the establishment of Games Galore or its subsequent operation. Finally, he admitted on cross-examination that Mr. Clark was the owner of Games Galore. ³

On December 11, 1978, appellee opened Games Galore for business at approximately 10:00 a. m., but he was not on the premises during the subsequent search. Appellee testified that he was across the street when Detective Young and the other officers arrived. Upon their arrival, the officers identified themselves and their purpose to the individuals present and proceeded to search the premises. ⁴ The search uncovered, inter alia, two firearms: a German Luger pistol and a Colt .45 caliber commemorative pistol. Detective Young testified that the two guns were found on a shelf underneath a counter used by the Games Galore employees to make change for the game machines and to store equipment for the pool tables. The business' cash register was located on the shelf beneath the counter, and appellee testified that he had in the past and on the day of the search kept several personal items on the shelf, including a radio, a wall clock and his jacket. The individuals present were placed under arrest and were subsequently questioned.

On December 12, 1978, appellee was arrested and charged with receiving stolen property ⁵ and criminal conspiracy. ⁶ The basis for the charges was the discovery of the firearms during the search and statements made to the police by Dale Oswald, one of the persons arrested at Games Galore following the search. Appellee subsequently filed a motion to suppress on March 14, 1979, challenging the validity of the search warrant and seeking to exclude all evidence obtained as a result of the search. A hearing on the motion was held on August 10, 1979, and on September 25, 1979 the order was issued granting the motion. ⁷ This appeal followed.

The suppression court concluded that appellee was entitled to claim so-called "automatic" standing to challenge the validity of the search warrant because an essential element of the crime of receiving stolen property is possession of the seized evidence at the time of the contested search and seizure. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976), cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976); Commonwealth v. Mader, 253 Pa.Super. 58, 384 A.2d 974 (1978). The doctrine of "automatic" standing was first enunciated by the United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The Court there recognized that such a rule was necessary to avoid the dilemma confronting an accused charged with a possessory offense since, to establish standing at a suppression hearing, a defendant would often be "forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him." Id. at 262, 80 S.Ct. at 731. Prior to Jones, an accused charged with a possessory crime might only be able to establish standing to challenge a search and seizure by giving self-incriminating testimony at the suppression hearing, which testimony would be admissible at trial as substantive evidence of guilt. A defendant was thus "obliged either to give up what he believed ... to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination." Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). Accordingly, to resolve the "self-incrimination dilemma," Brown v. United States, 411 U.S. at 228, 93 S.Ct. at 1568, the Supreme Court adopted the rule of "automatic" standing.

Recently, however the Supreme Court concluded that the "automatic" standing rule was no longer viable. In United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Court held that defendants charged with possessory offenses may claim the benefits of the exclusionary rule only if their own fourth amendment rights have been violated and, accordingly, expressly overruled the "automatic" standing rule fashioned in Jones v. United States, supra. ⁸ Thus, the rule upon which the suppression court premised its conclusion that appellee had standing in the instant case is no longer valid. Consequently, we must determine whether appellee's own fourth amendment rights have been transgressed in order to judge whether he had "actual" standing to challenge the validity of the search warrant. ⁹

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court recognized the now familiar principle that

the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. (citations omitted). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Id. at 351-52, 88 S.Ct. at 511-12. Thus, the Supreme Court has consistently held that whether an individual is entitled to the protection of the fourth amendment "depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979). ¹⁰ See, e. g., Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); GM Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); Mancusi v. Deforte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The controlling consideration, therefore, is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched. See Commonwealth v. Dobson, 486 Pa. 299, 317-18, 405 A.2d 910, 920 (1979) (Manderino, J., dissenting).

This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S. at 361, 88 S.Ct. 507, (at p. 516), 19 L.Ed.2d 576 whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve (something) as private." Id. at 351, 88 S.Ct....