Com. v. Viall

• Decision Date: 30 December 2005
• Citation: 890 A.2d 419
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert Francis VIALL, Appellant.
• Court: Pennsylvania Superior Court

890 A.2d 419

COMMONWEALTH of Pennsylvania, Appellee, v. Robert Francis VIALL, Appellant.

Superior Court of Pennsylvania.

Argued October 25, 2005.

Filed December 30, 2005.

Greer H. Anderson, Lebanon, for appellant.

Megan E. Ryland-Tanner, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Before: DEL SOLE, P.J., MUSMANNO and KELLY, JJ.

OPINION BY DEL SOLE, P.J.:

¶ 1 This is a direct appeal from the judgment of sentence imposed after a jury found Appellant guilty of possession and possession with intent to deliver cocaine, possession of drug paraphernalia and criminal conspiracy. On appeal he challenges a ruling of the suppression court and a ruling regarding the admission of certain testimony at trial. We affirm.

¶ 2 The trial court recounted the following facts which were established at trial:

Sergeant Brett A. Hopkins of the Cornwall Borough Police Department stopped a vehicle due to a burnt out right rear taillight bulb. The driver of the vehicle was Justin Ritchie (Ritchie); his wife was in the right front seat, and there were three (3) passengers in the rear seat including Shawn Soliday (Soliday) and [Appellant]. Sergeant Hopkins discovered that Ritchie had an expired driver's license. No one else in the vehicle had proper identification on them. However, Soliday claimed to have a valid driver's license.

Ritchie and Soliday were asked to step out of the vehicle. By this time, Officer Ryan Sweigart arrived at the scene, and eventually Officer Conklin arrived at the scene with a picture of Soliday that verified he had a valid driver's license. The officers gave Ritchie a faulty equipment card for the light problem, and also a citation for driving on an expired license. The officers then advised Ritchie that he was free to leave, but he could not drive the vehicle away. The officers then advised Soliday that he was the only licensed driver, and that he was also free to leave.

Ritchie and Soliday started to walk towards their vehicle, apparently ready to drive away. Before getting in the vehicle, Ritchie stopped and looked back at the police cars behind him. At this point Sergeant Hopkins asked Ritchie if he could ask him a few questions. Ritchie said sure.

Sergeant Hopkins asked if there were any guns or drugs in the vehicle. Ritchie stated he was unaware of any. Sergeant Hopkins then asked for permission to search the vehicle. Ritchie consented. The resulting search yielded drugs and drug paraphernalia.

Trial Court Opinion, 6/3/05, at 1-3.

¶ 3 Appellant sought to suppress the evidence obtained from the search of car arguing that Ritchie's consent was not validly given. The trial court ruled that Appellant did not have a reasonable expectation of privacy in the place searched and thus his constitutional rights were not violated.

¶ 4 Appellant in his first issue challenges the trial court's ruling, arguing that he had an expectation of privacy in the car entitling him to constitutional protection, and that this protection was violated when the officers searched the car without valid consent. Specifically Appellant cites to Article 1, Section 8 of the Pennsylvania Constitution and notes that historically an individual's privacy interests are given greater deference under the Pennsylvania Constitution than under federal law. Appellant's Brief at 15 (citing Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995)).

¶ 5 Although Appellant was charged with a possessory offense and as such has automatic standing to challenge the suppression of the items seized, it was appropriate for the trial court to first examine the question of Appellant's privacy interest in the place searched. See Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615, 617 (1993). Both Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution have been interpreted as protecting zones where an individual enjoys a reasonable expectation of privacy. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735, 737 (1993). While the Pennsylvania Constitution may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal law, an individual's expectation of privacy in the place searched must be established to invoke constitutional protection. Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254, 1258 (1989). "[I]n order for a defendant accused of a possessory crime to prevail in a challenge to the search and seizure which provided the evidence used against him, he must, as a threshold matter, establish that he has a legally cognizable expectation of privacy in the premises which were searched." Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super.1998) (quoting Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143, 145-46 (1997)).

¶ 6 An expectation of privacy will be found to exist when the individual exhibits an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super.2005). In determining whether a person's expectation of privacy is legitimate or reasonable, the totality of the circumstances must be considered and the determination will ultimately rest upon a balancing of the societal interests involved. Peterson, 636 A.2d at 619. "The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances." Jones, 874 A.2d at 118.

¶ 7 Appellant argues that he had a reasonable expectation of privacy while traveling as a passenger in the automobile. In support of his position he cites to Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), wherein a passenger challenged the stop of an automobile in which he was riding. The court ruled that because the officers had no justification to stop the automobile, the stop was constitutionally impermissible, and the fruits of the unlawful stop should have been suppressed. In so ruling the court remarked that an "automobile is a place where an individual has a reasonable expectation of privacy" and thus is entitled to be free from unreasonable intrusions by the government. Id. at 876. The court found that when a police officer stops a vehicle the officer has seized the vehicle and its occupants, and thus certain constitutional protections come into play. The court ultimately ruled that "before the government may single out one automobile to stop, there must be specific facts justifying this intrusion." Id. at 878. Because no such facts could be articulated, the stop was deemed unlawful.

¶ 8 While we recognize, as did the court in Swanger, that occupants of an automobile have a certain expectation of privacy in the operation of that vehicle and may not be subject to unfettered governmental intrusion in the form of an unlawful stop, in this case the stop itself was not challenged. Here Appellant challenges the consent to search given by another occupant of the automobile and we must address whether Appellant had an expectation of privacy in the backseat area of the car where he was traveling so as to enable him to...