Commonwealth, Aplt. v. Enimpah, A. , 630 Pa. 357 ( 2014 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 84 MAP 2013
:
Appellant : Appeal from the Order of the Superior
: Court entered February 6, 2013,
: reconsideration denied April 11, 2013, at
v. : No. 125 MDA 2012 which Affirmed the
: Order of Lebanon County Court of
: Common Pleas, Criminal Division, entered
ANDREW KEITH ENIMPAH, : January 4, 2012 at No.
: CP-38-CR-0001362-2011.
Appellee :
: ARGUED: May 7, 2014
OPINION
MR. JUSTICE EAKIN DECIDED: December 29, 2014
Does a motion to suppress evidence demand proof by the accused of a
reasonable expectation of privacy in the area in which the evidence is found before the
Commonwealth’s burden of production is triggered? Here, the Commonwealth refused
to present any evidence at appellee’s suppression hearing, claiming its obligation was not
in force until appellee met this “threshold” burden. The trial court accordingly
suppressed the evidence; the Superior Court affirmed. We affirm that decision and
reiterate that which should now be clear: “In all cases, the burden of production is [] upon
the Commonwealth.” Pa.R.Crim.P. 581 cmt.
Appellee was a passenger in a car stopped by police; he was asked to step out of
the vehicle, and as he did so, a plastic bag fell from his lap. The driver consented to a
search of the car and police seized the bag, which contained cocaine; naturally, all
occupants denied knowledge of the bag, but appellee was charged. He moved to
suppress, challenging the constitutionality of the detention that led to the search. At the
suppression hearing, the prosecutor refused to offer evidence until appellee met the
“threshold” stated above. After much debate, the trial court informed the prosecutor it
would be obliged to grant the motion if she failed to present any evidence. The
prosecutor maintained her position, stating, “If I’m wrong[,] the [a]ppellate courts will tell
me that[;] then I will respect that decision.” N.T. Suppression Hearing, 1/4/12, at 13.
The Superior Court noted Pa.R.Crim.P. 581 requires a defendant to plead a
suppression motion with sufficient particularity to frame the issue(s). The court noted our
decision in Commonwealth v. Millner, 888 A.2d 680 (Pa. 2005), held a defendant must
show a legitimate privacy interest to “‘prevail upon a suppression motion[.]’”
Commonwealth v. Enimpah, 62 A.3d 1028, 1032 (Pa. Super. 2013) (emphasis added)
(quoting Millner, at 692). However, the court observed the burdens of production and
persuasion are both on the Commonwealth, and rejected the Commonwealth’s
contention that the absence of such proof means “the burden never shifts to the
Commonwealth to establish the lawfulness of the police conduct.” Id. (citation,
emphasis, and internal quotation marks omitted).
Moreover, the court emphasized that Pennsylvania’s automatic standing rule
involves a defendant’s “right to have the merits of his suppression motion adjudicated
without a preliminary showing of ownership or possession in the premises or effects
seized.” Id. (citation, emphasis, and internal quotation marks omitted). Thus, the court
affirmed the suppression order, holding that when a defendant properly presents a
suppression motion, “it is not enough for the Commonwealth to simply sit on its hands as
it did here, but rather it must meet a burden of production, and bring its evidence before
the suppression court, which can then make a fully informed decision.” Id., at 1033.
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The Commonwealth sought allowance of appeal; we granted review to consider
when the Commonwealth’s burden of production is triggered. The Commonwealth
acknowledges that these are possessory offenses, giving appellee automatic standing,
and further concedes it bears both the burden of production and the burden of
persuasion. However, the Commonwealth contends that “[a]bsent a showing of a
reasonable expectation of privacy in an area searched or items seized, the burden never
shifts to the Commonwealth to establish the lawfulness of the police conduct.”
Commonwealth’s Brief, at 15 (citations omitted).
The Commonwealth observes Millner at one point characterized the defendant’s
burden to show a legitimate privacy interest as a “preliminary” one, a term it then defines
as “‘coming before and usually forming a necessary prelude to something else.’” Id., at
20. The Commonwealth further notes the Millner Court stated “‘there was no need for
the Commonwealth to establish the lawfulness of the police entry into the vehicle and the
seizure of the [evidence], and there was no basis upon which the lower courts could
properly order its suppression[,]’” when nothing in the evidence of the Commonwealth or
the defendant showed the defendant had a legitimate expectation of privacy in the area
searched. Id., at 15 (alteration in original) (citation omitted). The Commonwealth also
cites Commonwealth v. Boulware, 876 A.2d 440 (Pa. Super. 2005), where the Superior
Court held, “Any shifting of the burden onto the Commonwealth of going forward with
evidence pursuant to Pa.R.Crim.P. 581(H), can not occur until and unless an accused
has made a preliminary showing of his standing and expectation of privacy.” Id., at 443(citation omitted). The Commonwealth contends that since the “situation present here is
exactly like that presented in Boulware[, t]he result must be the same.”
Commonwealth’s Brief, at 21.
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Appellee concedes he must establish he had a reasonable expectation of privacy
to ultimately succeed but contends it is not a threshold issue that must be established
before the Commonwealth’s burden of production is triggered. Rather, he argues the
“reasonable expectation of privacy” issue is part of the merits analysis conducted after the
parties have presented their evidence. Appellee’s Brief, at 9 (noting Millner concluded
expectation of privacy must be proven to “prevail” on suppression motion). He suggests
Millner and Boulware are distinguishable because in those cases, the Commonwealth
actually presented evidence, allowing the suppression court to reach the merits of the
privacy expectation inquiry.
Further, appellee maintains that adopting the Commonwealth’s interpretation
would, in many cases, conflict with a defendant’s right to remain silent under the
Pennsylvania and United States Constitutions. He contests the Commonwealth’s
argument that a defendant can establish a reasonable expectation of privacy through the
testimony of others, noting this argument, while not inconceivable, would not apply in all
scenarios. Appellee suggests the burden on the Commonwealth “is not great or overly
burdensome,” and notes the trial court gave the prosecutor repeated notice that he would
suppress the evidence if she failed to call any witnesses. Id., at 12-13.
Generally, to have standing to pursue a suppression motion under Pa.R.Crim.P.
581, the defendant’s own constitutional rights must have been infringed. However, it is
well settled that a defendant charged with a possessory offense in this Commonwealth
has “automatic standing” because “the charge itself alleges an interest sufficient to
support a [] claim [under Article I, § 8].” Commonwealth v. Sell, 470 A.2d 457, 468 (Pa.
1983) (citation and internal quotation marks omitted). This rule entitles a defendant to a
review of the merits of his suppression motion without a preliminary showing of ownership
or possession in the premises or items seized, Commonwealth v. Peterson, 636 A.2d
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615, 617 (Pa. 1993), and as noted above, the Commonwealth does not challenge
appellee’s standing. In addition to standing, though, a defendant must show that he had
a privacy interest in the place invaded or thing seized that society is prepared to recognize
as reasonable. Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (citation
omitted).
While cursorily similar, standing and privacy interest are different concepts serving
different functions. Standing is a legal interest that “empowers a defendant to assert a
constitutional violation and thus seek to exclude or suppress the government’s evidence
pursuant to the exclusionary rules under the Fourth Amendment of the United States
Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Id., at 266
(citations omitted). It ensures a defendant is asserting a constitutional right of his own.
See id., at 269 (citations omitted) (noting this Court’s refusal to recognize vicarious
assertions of constitutional rights). The expectation of privacy is an inquiry into the
validity of the search or seizure itself; if the defendant has no protected privacy interest,
neither the Fourth Amendment nor Article I, § 8 is implicated. See Commonwealth v.
White, 327 A.2d 40, 42 (Pa. 1974). In essence, while a defendant’s standing dictates
when a claim under Article I, § 8 may be brought, his privacy interest controls whether the
claim will succeed — once a defendant has shown standing, “[h]e must, in short, having
brought his claim, demonstrate its merits by a showing of his reasonable and legitimate
expectation of privacy in the premises.” Peterson, at 618 (citation omitted).
As noted supra, the Commonwealth relies on the Superior Court’s decision in
Boulware to support its contention that the defendant’s burden to establish his privacy
interest temporally precedes its burden of production. It maintains the result here must
be the same as the situation is “exactly like” that in Boulware. Commonwealth’s Brief,
at 21. This argument is without merit, and we of course are not bound by precedent from
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a panel of the Superior Court. In Boulware, the defendant was charged with robbery and
filed a motion to suppress evidence, which included a sweatshirt seized from his home.
At the suppression hearing, he presented no evidence, and had no automatic standing as
robbery was not a possessory crime. The Commonwealth presented no evidence
pertaining to his arrest or seizure of the sweatshirt — accordingly, the trial court
suppressed the evidence, and the Superior Court reversed, noting, inter alia, the
defendant had not shown standing.
The Commonwealth is correct that the Boulware panel opined that a defendant
must prove his privacy interest before the Commonwealth’s burden of production is
triggered — for the reasons discussed infra, that holding is disapproved. Regardless,
the error was harmless, as the defendant was not entitled to reach the merits of his
suppression claim because he failed to establish standing. Thus, this case is not
“exactly like” or analogous to Boulware. Moreover, Boulware preceded our decision in
Millner, 1 after which the Superior Court recognized, “Whether [a] defendant has a
legitimate expectation of privacy is a component of the merits analysis of the suppression
motion N made upon evaluation of the evidence presented by the Commonwealth and
the defendant.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en
banc) (citation omitted).
In Millner, the defendant filed a motion to suppress the evidence behind
possessory charges involving cocaine and a firearm. The arresting officer, investigating
reports of gunfire, saw the defendant place a handgun in a car, and saw an accomplice
throw a bag on the ground containing what was determined to be drugs. After finding the
drugs, the officers searched the defendant, discovering 41 packets of cocaine. An
1 Though Peterson made clear that the defendant’s privacy interest involved the merits of
a suppression claim, the Superior Court did not find this fact significant to the allocation of
burdens and the presentation of evidence until our decision in Millner.
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officer found the handgun in plain view, and testified nothing in the car appeared to
belong to the defendant, nor did the defendant have a key to the car, which was not
registered to him. The defendant testified to his version of events, but provided no
testimony suggesting any connection to the vehicle, instead stating it belonged to his
cohort.
The Commonwealth argued the defendant failed to demonstrate a reasonable
expectation of privacy in the vehicle, but the trial court granted the suppression motion.
The Superior Court affirmed, finding the defendant’s testimony credibly showed police
had no probable cause or reasonable suspicion to arrest or search him, his cohort, or the
vehicle. Millner, at 685. While it conceded the defendant had no reasonable
expectation of privacy, the court opined it need not address that argument because the
Commonwealth failed to show a possessory connection between the defendant and the
firearm.2 Id.On appeal, we noted it was undisputed that the gun came from the vehicle and the
defendant offered no evidence to establish a reasonable expectation of privacy therein:
[I]nstead, he stated that the vehicle was not his, but was owned by Kenny
Parker. [The defendant] did not claim that he had a right to use or access
the vehicle, or to exclude others (such as the police) from it. Moreover, the
Commonwealth’s uncontradicted evidence demonstrated that the vehicle
was registered to someone other than [the defendant] (or Parker) and that
no key, papers or other identification were found which would have
indicated that [the defendant] had any legitimate connection to the vehicle.
Id., at 686. We observed that “a defendant cannot prevail upon a suppression motion
unless he demonstrates that the challenged police conduct violated his own, personal
privacy interests.” Id., at 692. Accordingly, we found the Superior Court erred in
2 The court also reasoned, “‘But for the illegal detention and search of [the defendant,]
the police would never have searched the vehicle at all. The search of the vehicle was a
mere extension of the already illegal search.’” Id.
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deeming it unnecessary to assess whether the defendant had a protected privacy
interest. Id., at 693-94.
The Commonwealth contends the Millner Court’s characterization of the burden as
“preliminary” signifies it must precede the presentation of other evidence. See id., at
686, 689 (referring to “defendant’s preliminary burden” (citations omitted)). At first blush,
without proper context, the word “preliminary” might support the Commonwealth’s
position. See id., at 692 (noting that where there was no evidence establishing
defendant’s privacy interest, “there was no need for the Commonwealth to establish the
lawfulness of the police entry into the vehicle and the seizure of the firearm, and there was
no basis upon which the lower courts could properly order its suppression” (citation
omitted)); Hawkins, at 268 n.3 (“[O]ur cases place the burden squarely upon the
defendant seeking suppression to establish a legitimate expectation of privacy as an
essential element of his case[.]”); Peterson, at 618 (“Without such expectation of privacy,
police entry into the store front would have constituted no intrusion, and the exigent
circumstances which are posited to justify police action need not be advanced.”).
However, “preliminary” in context refers to analytical order, not a temporal order of
proof. Privacy expectations are “preliminary” in the sense that their absence renders all
that follows irrelevant. Indeed, in all of these cases, the Commonwealth presented
evidence sufficient to allow disposition of the defendant’s claim — in each case, the
Commonwealth’s evidence showed the defendant lacked any protected privacy interest,
and the defendant failed to effectively rebut that evidence. We were not dealing with the
peculiar situation in which the Commonwealth refused to call a single witness.3 Rather,
each case dealt with the court’s post-hearing analysis of a claim’s merits and the
3 In fact, this Court has characterized the situation presently before us as “virtually
inconceivable.” Commonwealth ex rel. Butler v. Rundle, 239 A.2d 426, 428 (Pa. 1968).
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significance of a defendant’s privacy interest in conducting that inquiry.4 None of these
cases involved the order in which evidence is presented, or the shifting of burdens, and
one should not read them as commenting on those issues.
Unlike these cases, there was no evidence presented whatsoever — here, neither
party called a single witness. Consequently, the court was forced to decide the motion
based solely on which party bore the burden of production, the burden of “going forward
with the evidence,” which, as the Superior Court noted, are basically synonymous terms.
The allocation of that burden is clear — the Commonwealth must prove the constitutional
rights of the accused were not violated by the search. The allegation is that unlawful
detention led to the search, but if the evidence shows there was no expectation of privacy
in the area searched, the prosecution has met its burden and need not go further. The
lawfulness of the detention becomes irrelevant, as constitutional error cannot inure to the
benefit of the expectation-less accused. To overcome that result, the accused has the
burden of showing such an expectation did exist. If the accused does so, the search is
again at issue, and the prosecution must prove its constitutionality.
To be sure, under our jurisprudence, the defendant bears the burden of
persuasion with respect to his privacy interest. See Commonwealth v. Gordon, 683 A.2d
253, 256 (Pa. 1996) (citation omitted).5 However, the defendant’s ability to meet this
burden is not a prerequisite to the Commonwealth’s initial burden of production, a burden
4 For example, in Millner, given the Commonwealth’s uncontradicted evidence showing
the defendant had no expectation of privacy in the vehicle, we concluded the defendant
could not prevail on the merits of his motion and, as a result, “there was no need for the
Commonwealth to establish the lawfulness of the police [conduct,]” Millner, at 692
(citation omitted), i.e., it did not matter whether the Commonwealth had ultimately proven
that its evidence was obtained through legal means.
5 This is a judicially created exception to the general rule that the burden of persuasion is
on the Commonwealth, and appellee does not argue for its abandonment.
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it must satisfy in all cases. See Pa.R.Crim.P. 581 cmt. Rule 581(H) clearly states it is
the Commonwealth’s burden to present evidence that the defendant’s constitutional
rights were not infringed. The Commonwealth may concede the privacy interest,
choosing to contest only the legality of police conduct; if it does so, the defendant’s
“reasonable expectation of privacy” need not be established. However, if the evidence
of the Commonwealth, the party with the burden of production, shows the defendant
lacked such a privacy interest, the burden of establishing the contrary is on the defendant.
While we reject the Commonwealth’s interpretation of the “preliminary” nature of
this burden, it is worth noting that in analyzing the merits of a suppression motion, the trial
court may, indeed, treat the defendant’s privacy interest as a “threshold” or “preliminary”
matter. That is to say, if the evidence shows there was no privacy interest, the
Commonwealth need prove no more; in terms of the court’s review, it need go no further if
it finds the defendant has not proven a reasonable expectation of privacy. However, as it
relates to the parties’ presentation of evidence, our cases and the Rules of Criminal
Procedure make clear that the Commonwealth has the burden of production, to give the
court evidence allowing that conclusion. Once it places the issue before the court, as a
basis for denying suppression, the defendant may prove the contrary.6 If that proof is
found to meet defendant’s burden, then the search itself may be examined with the
burden on the prosecution to show it was not unconstitutional.
Our decision today is consistent with our reasoning in Sell. There, we refused to
follow the United States Supreme Court’s abandonment of the automatic standing
6 Although the defendant will typically present his own evidence to satisfy this burden, he
is not required to do so. Indeed, he may succeed without presenting any evidence at all.
See 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at 50 (5th ed. 2012) (noting “even if
the burden of proof is on one party, it may happen that the burden is actually met in a
particular case by evidence given by the other party”).
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doctrine in United States v. Salvucci, 448 U.S. 83, 95 (1980). The same day Salvucci
was filed, the High Court released its decision in Rawlings v. Kentucky, 448 U.S. 98(1980), where it refined the standard articulated in Rakas v. Illinois, 439 U.S. 128 (1978),
and merged the requirement of standing, which it defined as the “reasonable expectation
of privacy,” into the merits of a Fourth Amendment claim, see id., at 139 (“[W]e think the
better analysis forthrightly focuses on the extent of a particular defendant’s rights under
the Fourth Amendment, rather than on any theoretically separate, but invariably
intertwined concept of standing.”). This Court “decline[d] to undermine the clear
language of Article I, [S]ection 8 by making the Fourth Amendment’s amorphous
‘legitimate expectation of privacy’ standard a part of our state guarantee against
unreasonable searches and seizures.” Sell, at 468. We did so:
not only because we f[ound] the United States Supreme Court’s analytical
distinction between “standing” and “threshold substantive question,”
unhelpful to our interpretation of Article I, [S]ection 8’s protection, but also
because we believe[d] the United States Supreme Court’s current use of
the “legitimate expectation of privacy” concept needlessly detracts from the
critical element of unreasonable governmental intrusion.
Id. (internal citation omitted).
In this case, we are not asked to review the propriety of requiring defendants to
establish a “legitimate expectation of privacy” before they can succeed on a motion to
suppress that has been properly contested by the Commonwealth. Appellee concedes
this point and does not ask us to revisit it.7 However, we cannot ignore the clear import
7 A concurrence in Commonwealth v. Peterson, 596 A.2d 172 (Pa. Super. 1991), aff’d by
636 A.2d 615 (Pa. 1993), opined Sell “direct[ed] that a review shall be made of the
reasonableness of a governmental intrusion even in cases where the particular
defendant’s rights were not affected not by the intrusion itself[,]” noting the rationale for
the Sell decision was “that respect for the particular defendant’s ‘legitimate expectation of
privacy’ (the focus of Rakas) is not the only reason justifying inquiry in these cases:
[under] Article I, § 8, there also is an abiding interest to ensure review of the ‘critical
element’ of whether the governmental intrusion was unreasonable.” Id., at 187
(continuedN)
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of the Sell decision: our state constitution does not allow for a “reasonable expectation of
privacy” inquiry to serve as a prerequisite to bringing a motion to suppress evidence
before the court. Were we to adopt the position of the Commonwealth, Sell would be
nullified, as the Commonwealth could merely “sit on its hands,” as it did here, and force
the defendant to testify to his connection to the contraband or the area searched.
A criminal defendant with standing to pursue a motion to suppress in this
Commonwealth has a right to compel the prosecution to prove its evidence was not
obtained in violation of his constitutional rights, without having to present evidence of his
own. If the Commonwealth shows he lacks a reasonable expectation of privacy, it need
do no more, absent proof to the contrary from the accused himself. Where the
Commonwealth cannot, or will not, present any evidence at all, the defendant’s motion
must be granted, regardless of whether he could ultimately establish a reasonable
expectation of privacy.8
Accordingly, we affirm the ruling of the Superior Court.
Order affirmed; case remanded; jurisdiction relinquished.
(Ncontinued)
(Hoffman, J., concurring) (citation omitted). This Court rejected this analysis, stating it
“failed to distinguish between the necessity for a preliminary demonstration of proprietary
or possessory interest, a necessity which does not exist in Pennsylvania, and the
necessity of demonstrating the merits of a suppression claim.” Peterson, at 618. In
Millner, we reviewed Sell on this point and found Peterson and later cases made clear a
defendant charged with a possessory offense must still establish a reasonable
expectation of privacy. Millner, at 690-92.
8 See Ronald J. Allen, Burdens of Proof, Uncertainty, and Ambiguity in Modern Legal
Discourse, 17 Harv. J.L. & Pub. Pol’y 627, 640 (1994) (“Assume that party A has the
burden of production and persuasion on some fact X, and that neither party has any
evidence relevant to that fact. If the burden of persuasion on fact X is shifted to party B,
party A still has the burden of production. But party A has no evidence of X.
Consequently, party A cannot meet its burden of production and will lose, even though
party B could not possibly meet its burden of persuasion.”).
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Former Justice McCaffery did not participate in the decision of this case.
Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice
Stevens join the opinion.
Mr. Justice Saylor files a concurring opinion, footnote 2 of which is joined by Mr.
Chief Justice Castille.
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