Commonwealth v. Black , 2000 Pa. Super. 253 ( 2000 )

CIRILLO, President Judge Emeritus:

¶ 1 The Commonwealth of Pennsylvania appeals from an order granting a suppression motion entered in the Court of Common Pleas of Philadelphia County.¹ We reverse.

¶ 2 Appellees, Christopher Black and Vincent Diorio², were charged with knowing and intentional possession of a controlled substance and possession with the intent to deliver a controlled substance. Black and Diorio each filed a pre-trial motion to suppress the physical evidence, which was granted on January 22, 1999. The Commonwealth appeals, claiming the trial court erred when it granted Black and Diorio’s motions to suppress.

¶ 3 On September 23, 1997, Philadelphia Police Officer William Jeitner of the Narcotics Field Unit had a telephone conversation with Detective Payton of the Los Angeles County Police Department regarding a Federal Express package addressed to Barbara Barsh at 12516 Torrey Road, First Floor, Philadelphia, Pennsylvania, 19154. Detective Payton informed Officer Jeitner that he had received information from a reliable informant that the Federal Express package, addressed to Barbara Barsh, contained cocaine. Detective Payton also informed Officer Jeitner that the informant had provided prior information which led to several arrests in the past. Moreover, Detective Payton informed Officer Jeitner that the Federal Express package had been intercepted in California, opened without a properly issued search warrant, and was found to contain numerous hand lotion containers with bags of cocaine stuffed inside of the containers. The package was reseated and sent to Bob Brown of the Federal Express Security office in Bristol, Pennsylvania.

¶4 Officer Jeitner and Officer Donna Doran met with Bob Brown in Bristol, Pennsylvania. Officers Jeitner and Doran took possession of the Federal Express package. Officer Richard Nicoletti of the Philadelphia Police Narcotics Field Unit obtained search warrants for the package and the first floor apartment. A search of the package was conducted at the Narcotics Field Unit, which revealed that the package contained eight bottles of Suave hand lotion. Four of the bottles were wrapped in gauze and surgical tape and contained a white substance. The substance tested positive for methamphet-amines. The whereabouts and existence of Barbara Barsh could not be obtained.

¶ 5 Officer Jeitner arranged for Officer Doran to deliver the Federal Express package to the first floor apartment. Officer Doran left the package between the screen door and the front door of the apartment after she knocked on the door and did not receive an answer. Officer Nicoletti maintained surveillance of the property during this time. Officer Nico-letti did not see anyone enter or exit the apartment until forty-five minutes later, when he observed Diorio enter the apartment and take the parcel inside. Approximately thirty minutes later, Officer Jeitner knocked on the front door of the apartment and announced that police officers were present on the property and that he had a search warrant for the apartment. Again, Officer Jeitner made several knocks and announcements, and when he did not hear any response from the occupants inside, he forcibly entered the premises to execute the search warrant.

¶ 6 Upon entering the apartment, the Officers saw Black and Diorio seated on a couch in the living room with a large glass table in front of them. Several bags of cocaine were seized from the glass tabletop. The Federal Express package was leaning against a wall between the door and the rear of the couch. The search also resulted in the seizure of drugs, money, drug paraphernalia, and items indicating Black’s possessionary interest in the property. Black and Diorio were charged with knowingly or intentionally possessing a controlled substance, possessing a controlled substance with an intent the intent to deliver it, possessing drug paraphernalia, and criminal conspiracy. Black and Diorio filed motions to suppress which were granted by the trial court. This appeal followed. The Commonwealth raises the following issue for our consideration:

Did the lower court err in granting defendant’s suppression motion based on speculation that a package of contraband addressed to a third party may have been improperly opened in California where defendant, apart from having no standing to raise the issue, clearly lacked any reasonable expectation of privacy in the package at the time of the search?

Our standard of review in this case is well settled.

In reviewing an order granting a motion to suppress, an appellate court may consider only the evidence of the defendant’s witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected. Commonwealth v. Torres, 429 Pa.Super. 228, 632 A.2d 319, 320 (1993).

Commonwealth v. Blee, 695 A.2d 802 (Pa.Super.1997).

¶ 7 The Commonwealth introduced and admitted into evidence the two search warrants in question along with their respective affidavits of probable cause. The Commonwealth asserts that Black and Diorio lack standing to challenge the validity of the search warrants and that the search warrant issued for the Federal Express package was lawful. In its opinion, the trial court held Black and Diorio:

[h]ave automatic standing to challenge the legality of the search warrants and the admissibility of any evidence derived therefrom. Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1979)[1983]. If possession of the seized evidence is itself an essential element of the offense [when] the defendant is charged, the government is precluded from denying that the Defendant has the requisite possessory interest to challenge the admission of the evidence (at the suppression hearing). Knowles, supra at 76[, 327 A.2d 19].

¶ 8 In addition to standing, however, we find that a defendant must also demonstrate a reasonable expectation of privacy in the property searched. Following Knowles, supra, this court held in Commonwealth v. Rodriquez, 385 Pa.Super. 1, 559 A.2d 947 (1989), that a person must demonstrate a reasonable expectation of privacy to establish standing. In Rodriquez, this court stated:

In Sell, our Supreme Court interpreted Article I, section 8 of the Pennsylvania Constitution as giving a broader scope of protection with regard to standing to challenge a search and seizure than the United States Supreme Court has construed in the fourth amendment. ^N1 The Sell Court elected to continue the “automatic standing” rule it first adopted in Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974). Here, appellee was charged with one count each of knowing or intentionally possessing a controlled substance, manufacture with intent to manufacture or deliver a controlled substance, and criminal conspiracy. Because the first two charges are possessory offenses, appellee initially has standing to challenge the search and seizure, however, as a matter of law, we find appellee abandoned the property seized, she has not standing to challenge the police search of the house and consequent seizure of the narcotics. It is well-established that “no one has standing to complain of a search and seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 645, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221, 226-28, 486 A.2d 987, 990 (1985). “The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned.” Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Cihylik, supra, 337 Pa.Superior Ct. at 226-28, 486 A.2d at 990. These principles were well-stated by the Supreme Court in Sell: “[P]ersonal possessions remain constitutionally protected ... until their owner meaningfully abdicates his control, ownership or possessory interest therein.” Id., 504 Pa. at 67, 470 A.2d at 469.

Rodriquez, supra at 948.

Furthermore, the Rodriquez court held:

Rodriquez, supra at 949.

¶ 9 The Pennsylvania Supreme Court addressed the issue of placing the burden upon the defendant seeking suppression to establish a legitimate expectation of privacy as an essential element of his case in Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). The Pennsylvania Supreme Court has determined that standing requires a defendant to demonstrate one of the following elements:

(1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the searched premises.

Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998) (citing Commonwealth v. Peterkin, 511 Pa. 299, 309 513 A.2d 373, 378 (1986)).

In Hawkins, supra, the Pennsylvania Supreme Court opined:

While this Court has stated that automatic standing maintains continued vitality under Article 1, Section 8 of the Pennsylvania Constitution, see Commonwealth v. Sell, 504 Pa. 46, 66-68, 470 A.2d 457, 468-69 (1983); see also Peterson, 535 Pa. at 497, 636 A.2d at 617, these decisions have recognized that the essential effect is to entitle a defendant to an adjudication of the merits of a suppression motion. See id. at 497, 636 A.2d at 617. In order to prevail on such a motion, however, a defendant is required to separately demonstrate a personal privacy interest in the area searched or effects seized, and that such interest was “actual, societally sanctioned as reasonable, and justifiable.” Peterson, 535 at 497, 636 A.2d at 617. Such a legitimate expectation of' privacy is absent where an owner or possessor meaningfully abdicates his control, ownership or possessory interest. Sell, 504 at 67, 470 A.2d at 469.... [A] person must maintain the privacy of his possession in such a fashion that his expectations of freedom from intrusion are recognized as reasonable.

Hawkins, supra at 267 (emphasis added). The Pennsylvania Supreme Court further held that “[i]n order to obtain standing to challenge the legality of the search, [a defendant] must establish that he, rather than [another], was the victim of an invasion of privacy.” Hawkins, supra at 269 (emphasis added).

¶ 10 Most recently, the Pennsylvania Supreme Court addressed the issue of constitutionally protected privacy interests in Commonwealth v. Johnson, 556 Pa. 216, 234-35, 727 A.2d 1089,1098 (1999), holding that:

An individual whose constitutionally protected rights are not violated cannot claim any injury by a warrantless police seizure. [^FN7] In order to claim a constitutionally protected right in an item seized, the defendant must show: (1) that he had a subjective expectation of privacy; • and (2) that the expectation is one that society is prepared to recognize as reasonable and legitimate. See Commonwealth v. Gordon, 546 Pa. 65, 71, 683 A.2d 253, 256 (1996). We consider the totality of the circumstances and carefully weigh the societal interests involved when determining the legitimacy of such an expectation. Id. at 71, 683 A.2d at 257.

Johnson, supra at 234-35, 727 A.2d at 1098.

¶ 11 We agree with the trial court and find that Black and Diorio have standing to challenge the legality of the search warrants and the admissibility of any evidence derived therefrom. However, unlike the trial court, which granted standing to the appellees because of their possessory interest in the evidence seized, we find that the appellees must be accorded standing due to their presence on the premises at the time of the search and seizure. Hawkins, supra.

¶ 12 Despite this finding, we are compelled to reverse the suppression court’s order which failed to look beyond Knowles and apply the second prong of the Johnson test that requires the defendant to establish the existence of a reasonable and legitimate expectation of privacy in the item seized. Johnson, supra at 235, 727 A.2d at 1098. Neither Black nor Dior-io established a privacy interest in the Federal Express package addressed to Barbara Barsh. Neither Black nor Diorio alleged that they were Barbara Barsh or that Barbara Barsh was an alias used by either of them. Furthermore, at the suppression hearing, both Black and Diorio attempted to disassociate themselves from the package. Black testified that he had no recollection of the package at all, while Diorio admitted that he was a short term visitor to the apartment where the package was sent, and actually “kicked” it aside on his way through the door. Because Black and Diorio attempted to disassociate themselves from the package, they each failed to demonstrate how their respective privacy interests had been violated under either the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution.

¶ 13 With regard to the appellees’ Fourth Amendment prosecutions, the trial court held:

the parcel in question is first class mail and is free from inspection by (state and federal actors), except in the manner provided by the 4th Amendment. “Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by parties forwarding them in their own domiciles. The Constitutional guarantee of the right of the people to be secure and their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, where ever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar open affirmation, particularly describing the thing to be seized, as is required when papers are subject to search in one’s own household. No law of [CJongress can place in the hands of officials connected with the postal service any authority to invade the secrecy of. letters and such sealed packages in the mail; and all regulations as to mail matters of this time must be in subordination to the great principle embodied in the 4th Amendment of the Constitution.”

Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878).

14 We find that Ex parte Jackson is inapplicable in the present case. Appel-lees and the trial court all base the positions they advance on an assumption that the package addressed to Barbara Barsh was opened unlawfully by California authorities. Therefore, the argument continues, the information conveyed by California authorities to the Pennsylvania police could not properly be used as probable cause to support a search warrant in Pennsylvania. Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221 (1998), which holds that only foreign searches conducted lawfully under the precepts of the particular foreign jurisdiction may supply probable cause for a Pennsylvania warrant, is cited in support.

¶ 15 It is necessary to point out that in its remarks following the suppression hearing, the trial court- considered it to be unclear whether the evidence on which the warrants were based had been obtained “legally or illegally.” In its opinion, however, the court states unequivocally that the search was illegal based on Ex parte Jackson. No reference of any kind is made to California law.

¶ 16 Significantly, the trial court also neglects to mention that Fourth Amendment protections are personal, and inure to the protection of persons not things. Minnesota v. Carter, 525 U.S. 88, 119 S.Ct. 469, 142 L.Ed.2d 873 (1998). As a predicate to demonstrating the violation of Fourth Amendment rights, that is, to establish standing, California law, like federal law, requires a defendant to show that he has a legitimate expectation of privacy in the invaded property or place. Witkin, B.E., 7 Summary of California Law § 410, 9th Ed. (1996). See also People v. Badgett, 10 Cal.4th 330, 41 Cal.Rptr.2d 635, 895 P.2d 877 (1995). A disclaimer of interest, such as Appellees here have made, or the absence of evidence of ownership, possession or control of the item searched will preclude a challenge to the legality of the search. People v. Dees, 221 Cal.App.3d 588, 270 Cal.Rptr. 554 (1990). Thus, in California, given their disavowal of all knowledge of package, contents or addressee, Appellees would not have been permitted to argue the legality of the search conducted there. Accordingly, the trial court erred in presuming the status of the California search.

¶ 17 In Sanchez, supra, which involved a dog sniff of a sealed package in California, the Pennsylvania Supreme Court declined to take a position on whether the appellant had a reasonable expectation of privacy in the package. Such a decision was never necessary as that search procedure required no probable cause or warrant under California law; the appellant’s challenge to its validity thus would be a prioñ foreclosed there. Accordingly, the principle of law it enunciates is inapplicable here, but nonetheless instructive because of the parallel it presents. Moreover, the package in Sanchez was actually addressed to the appellant, so that whatever determination might be made of Sanchez’ privacy interest in a package addressed to him, the foundational question of whether Appellees herein would have had standing to question the California search, given their complete lack of connection with the package at that point, must be answered in the negative.

¶ 18 Although Pennsylvania approaches the standing issue differently than does California, the result remains the same. As previously state, an automatic right is conferred on a defendant to adjudicate the merits of a suppression motion. “In order to prevail on such a motion, however, a defendant is required to separately demonstrate a personal privacy interest in the area searched or the effects seized, and that such interest is ‘actual, societally sanctioned as reasonable and justifiable.’ ” Hawkins, supra at 81, 718 A.2d at 267 (quoting Peterson, supra at 497, 636 A.2d at 617). The rationale underlying the finding that Appellees had no privacy interest in the package in Pennsylvania serves equally to support the same conclusion regarding the package while it remained in California. In this case, the package was addressed to a person whose identity was never ascertained, and of whom both Appellees denied knowledge. Lacking such interest here, none could be demonstrated there. Thus the argument that the Pennsylvania search warrant was invalid because it was unsupported by legitimately obtained probable cause cannot be sustained.

¶ 19 In addition, we note that sealed packages deserve constitutional protection under appropriate circumstances, however, courts “entertain the presumption that the addressee is the true and sole owner until the opposite is shown.” 5 W. LaFave, Search and Seizure § 11.3(f) at 205 3d ed.1996 (collecting cases). Here, Black and Diorio did not present evidence that they sent the package or were the person to whom it was addressed; therefore, Black and Diorio cannot assert a claim for invasion of privacy.

¶ 20 Moreover, it is well settled law that:

“[I]n order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” See also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980): Rakas v. Illinois, 439 U.S. 128 at 133-34, 99 S.Ct. 421 at 425, 58 L.Ed.2d 387.

Hawkins, supra at 268. By the same token, we find that a person does not have a privacy interest in mail that has not been either sent or received by that person. Because neither Black nor Diorio asserted an ownership interest in the package addressed to Barbara Barsh, and because neither can assert the rights of Barbara Barsh, we find that they did not have a privacy interest in the package. Therefore, Black and Diorio’s motions to suppress should have been denied. Blee, supra.

¶ 21 Order reversed. Jurisdiction relinquished.

¶ 22 FORD ELLIOTT, J., files a Concurring Opinion.

1 . The Commonwealth has complied with Pennsylvania Rule of Appellate Procedure 311(d):

In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa. R.A.P. 311(d). See Commonwealth v. Dugger, 506 Pa. 537, 539, 486 A.2d 382, 383 (1985) (holding an order suppressing evidence is appealable only when it is apparent from the record that the order terminates or substantially handicaps the prosecution).

2 . Pursuant to Pennsylvania Rule of Appellate Procedure 513, these appeals have been consolidated. Rule 513 states in pertinent part:

[w]here there is more than one appeal from the same order, or where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal. Appeals may be consolidated by stipulation of the parties to the several appeals.

Pa.R.A.P. 513.

N1 See e.g. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (reevaluating the "automatic standing” rule applied to alleged Fourth Amendment violations' in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which held the mere charge of a defendant with a possessory offense conferred standing to assert an alleged Fourth Amendment violation).

FN7 . We have divided this principle into two concepts: (1) standing to litigate a suppression claim; and (2) the existence of a reasonable and legitimate expectation of privacy in the thing seized. See Commonwealth v. Peterson, 535 Pa. 492, 497, 636 A.2d 615 617 (1993).