Com. v. Williams

• Decision Date: 14 December 1988
• Parties: COMMONWEALTH of Pennsylvania v. Robert WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

Page 313

551 A.2d 313

380 Pa.Super. 227

COMMONWEALTH of Pennsylvania v. Robert WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Submitted July 11, 1988.

Filed Dec. 14, 1988.

Elaine Demasse, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from the judgment of sentence for receiving stolen property. Appellant contends that the suppression court erred in denying his motion to suppress physical evidence. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was arrested and charged with burglary, theft, receiving stolen property, and criminal and defiant trespass. Prior to trial, appellant moved to suppress a video cassette recorder ("VCR") and tapes that he had placed on a bench in a bar, and that had been seized by a police officer. The motion was denied, and appellant proceeded to trial before a judge sitting without a jury. On December 28, 1987, appellant was found guilty of receiving stolen property, and was acquitted on the remaining charges. Post-verdict motions were timely filed and denied, and appellant was later sentenced to a two-year term of probation. This timely appeal followed.

The scope of our review of the denial of a motion to suppress is well-established.

An appellate court is bound by the factual findings of the suppression court if they have support in the record. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694 (1982). However, the suppression court's order may be reversed if the legal conclusions drawn from the factual findings are in error, Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982); Commonwealth v. Hall, supra.

Commonwealth v. Anderl, 329 Pa.Super. 69, 74-75, 477 A.2d 1356, 1358-59 (1984).

At the conclusion of the suppression hearing below, the court made the following findings of fact:

First, ... Officer Mock testified that on April 17, 1987, approximately 10:00 p.m. he was on routine patrol in his patrol car travel[l]ing northbound on Baynton Street at or about the intersection with Chelten Avenue.

Secondly, that Officer Mock observed [appellant] walking southbound on Baynton Street carrying a green trash bag containing what appeared to be a VCR.

Third, that Officer Mock observed [appellant] enter a bar located on the corner of Baynton and Chelten Avenue.

Fourth, that Officer Mock entered the bar and found the trash bag, VCR, and eight video tapes located on a bench. He did not observe [appellant] in the bar at that time.

Fifth, that Officer Mock exited the bar and while placing the items in his patrol car, he observed [appellant] exit the bar from a side door.

Sixth, that Officer Mock stopped [appellant] and inquired as to the ownership of the VCR and eight tapes.

Seventh, that [appellant] told Officer Mock he was the owner of the items.

Eighth, that Officer Mock inquired of [appellant] a receipt for the goods in question.

Ninth, that [appellant] failed to produce a receipt. Whereupon he was arrested by Officer Mock.

N.T. December 28, 1987 at 19-20. ¹ Based upon these findings, the suppression court concluded, as a matter of law, that "the Officer had probable cause to arrest [appellant]" and "the VCR is admissible evidence in that [appellant] had effectively abandoned it and this was not the result of unlawful police conduct." Trial Court Opinion at 3.

Appellant asserts that his fourth amendment rights were violated when Officer Mock seized the VCR and tapes without having probable cause to believe that the items were connected with criminal activity. The Commonwealth, however, argues that the trial court properly denied the motion to suppress because appellant had abandoned the VCR and tapes prior to Officer Mock's seizure. "The Fourth Amendment to the Constitution of the United States 'protects people from unreasonable government intrusions into their legitimate expectations of privacy.' " Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978). See also Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985). The Commonwealth bears the burden of proving by a preponderance of the evidence that a search or seizure did not violate the fourth amendment. Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978). "With few exceptions, the Fourth Amendment requires that law officers obtain a warrant issued by a neutral magistrate before they intrude into a place of privacy." Commonwealth v. Rispo, supra; Commonwealth v. Morrison, 275 Pa.Super. 454, 457, 418 A.2d 1378, 1379 (1980) (en banc). See also Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978). One such exception to the warrant requirement exists when the property seized has been abandoned. Commonwealth v. Vecchione, 327 Pa.Super. 548, 557, 476 A.2d 403, 407-08 (1984). "[I]t is well-settled that no one has standing to complain of a search of seizure of property that he has voluntarily abandoned." Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). In Shoatz, our Supreme Court outlined the test for determining whether an abandonment has occurred:

The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses.

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir.1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra [362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ]; United States v. Edwards, 5th Cir.1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir.1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. ...

469 Pa. at 553, 366 A.2d at 1219-20 (1976) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)) (emphasis supplied). See also Commonwealth v. Anderl, 329 Pa.Super. 69, 82-83, 477 A.2d 1356, 1362-63 (1984); 1 W. LaFave, Search and Seizure, § 2.6(b), at 467 (1987) ("The fundamental question is whether the relinquishment occurred under circumstances which indicate [the defendant] retained no justified expectation of privacy in the object.").

Here, a review of the suppression testimony convinces us that the Commonwealth did not meet its burden of showing that appellant clearly intended to relinquish his reasonable expectation of privacy in the VCR and tapes. Officer Mock was the only witness to testify at the suppression hearing. Officer Mock stated that on the date in question, he was on routine patrol in a marked police car in the Germantown section of Philadelphia. N.T. December 28, 1987 at 2-3. With specific regard to his seizure of the VCR and tapes, the Officer then testified as follows:

BY [the prosecutor]:

Q. How far from [appellant] were you when you first saw him?

A. ... I would say about 15, 20 feet.

Q. Could you describe for the Court exactly what you observed [appellant] doing at that time?

A. I observed him carrying a green trash bag and I could see what appeared to be a VCR sticking out.

Q. And what occurred after you made this observation?

A. He was headed southbound. I was headed northbound. So I had to make a U-turn. I made the U-turn and I was now southbound on Baynton and I observed the male walk into the bar at Baynton and Chelten.

* * *

* * *

Q. Officer, why did you make a U-turn and come back down the other way?

* * *

* * *

A. Because I thought I saw what appeared to be a VCR that the male was carrying, and I was going to investigate him.

Q. Could you describe for the Court what you observed on your way back down Baynton?

A. I observed the male walk into the bar at Baynton and Chelten.

Q. So what did you do as a result of that?

A. I went into the bar also.

* * *

* * *

Q. Did you find anything?

A. I found a green trash bag with a VCR and eight tapes in it on the bench inside the bar.

Q. Was that the same bar you had seen [appellant] go into, or not?

A. Yes.

Q. And how soon after you saw [appellant] go into that bar did you find the green trash bag, the VCR and the tapes?

A. Almost immediately.

Q. Were you able to tell whether that was the same items you had seen [appellant] with earlier?

A. It appeared to be, yes.

* * *

* * *

Q. Now, what did you do with the items you found?

A. Well, I looked for the male, and I couldn't find him in the bar. So I took the VCR and the tapes out and called for a backup.

[Appellant's counsel]: I'm sorry. I didn't hear that. You took the VCR and tapes out?

The Witness: Out of the bar and put them in my patrol car and called for back-up because I was going to search the bar. Then I observed the male come out of the side porch of the bar.

Id. at 3-6.

The difficulty with this case is that there was no testimony regarding the circumstances in the bar at the time appellant left the VCR and tapes. If the record revealed that appellant left the VCR and tapes in a crowded bar, or that he left them in a position where other people then present would have had easy access to them, or that he left the premises...