Commonwealth v. Capriotti, Z., Aplt.

[J-82-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 23 MAP 2022
:
Appellee : Appeal from the Order of the
: Superior Court dated August 27,
: 2021 at No. 1287 MDA 2020
v. : Vacating the Judgment of Sentence
: of the Sullivan County Court of
: Common Pleas, Criminal Division,
ZACHARY CLAYTON CAPRIOTTI, : dated September 1, 2020 at No.
: CP-57-CR-0000021-2019 and
Appellant : Remanding
:
: ARGUED: November 30, 2022
DISSENTING STATEMENT
JUSTICE DONOHUE FILED: January 10, 2023
I join Justice Wecht’s Dissenting Statement. We granted Zachary Capriotti’s
petition for allowance of appeal to answer an important and novel constitutional question
regarding the Superior Court’s expansive application of the silver platter and/or private
search doctrines in circumstances that strain any connection to the underlying rationale
of those exceptions to the warrant requirement. 1 I perceive no reason why we should not
decide this case. I would also reach the merits of Capriotti’s claim today and reverse the
1 As Justice Wecht aptly notes, the facts of this case are “categorically different” from the
typical silver-platter or private-search doctrine case, wherein contraband is delivered to
police by a private party on a proverbial silver platter. Justice Wecht’s Dissenting
Statement at 19 (“Wecht Dissenting Statement”). Here, Pennsylvania State Police Officer
Curtis Benjamin (“Trooper Benjamin”) was delivered to the contraband, by traversing
constitutionally protected space without a warrant, and absent any applicable exception
to the warrant requirement.
judgment of the Superior Court for the reasons set forth in Justice Wecht’s Dissenting
Statement.
I write separately to offer my additional perspective as to why this appeal was not
improvidently granted. Orders of this Court dismissing appeals as improvidently granted
are opaque and cause speculation by the bench and bar as to the reason for avoiding
disposition of fully briefed and argued cases. Ordinarily, in such cases there are some
facts or set of facts or some procedural irregularity (most often waiver) that present an
impediment to our resolution of the important issue upon which we granted allowance of
appeal.
Central to the viability of Capriotti’s objection to the application of any exception to
the warrant requirement is the existence of his privacy interest in the searched premises.
If he lacked such an interest or his privacy interest was diminished or he failed to assert
a privacy interest, the propriety of the application of the private search doctrine or the
silver platter exception would necessarily escape our review. None of these impediments
infect this case.
Capriotti has consistently maintained at every stage of the proceedings in this
case, without exception, that he had a reasonable expectation of privacy in the apartment
when Trooper Benjamin accompanied Capriotti’s father to the location where the
contraband was found. In his suppression motion, Capriotti asserted that he had a
“possessory interest” in the “entire property” that was protected under both the Fourth
Amendment and Article 1, Section 8 of the Pennsylvania Constitution. Motion to
Suppress, 5/22/2019, ¶¶ 14-15. He claimed that his parents had no right to be on the
property and, therefore, no “authority to let the police search protected areas of the
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building … .” Id. ¶ 14. Capriotti argued that his parents were trespassing on the date of
the search, id. ¶ 16, that he was still “sleeping and living in that apartment[,]” that day,
and that his father had “no right to search the upstairs apartment where” Capriotti resided,
id. ¶ 22. Capriotti filed an omnibus post-sentence motion raising, inter alia, a challenge
to the trial court’s denial of his suppression motion. Despite having no knowledge as to
why the court had denied it (because the trial court never issued findings of fact and
conclusions of law), Capriotti challenged the decision, arguing that a search warrant was
required in the circumstances of this case. Specifically, he asserted that the court erred
by “allowing the prosecution to rely on the silver platter doctrine,” and that no “exception
to the search warrant requirement applied because [Capriotti] had an exclusive
possessory interest as the properties searched were leased to him, there were no
exigent circumstances, and the [t]roopers partook in the search.” Post-Sentence Motion,
9/9/2020, at 2, ¶ 6 (emphasis added).
Capriotti preserved the issue in his Pa.R.A.P. 1925(b) statement, see Rule 1925(b)
Statement, 10/16/2020, at 1, ¶ 2, in his Superior Court brief, see Capriotti’s Superior Court
Brief at 26, 31-32, in his petition for allowance of appeal, see Petition for Allowance of
Appeal at 8, and he did not waver from this position in his brief to this Court, see Capriotti’s
Brief at 9. Thus, Capriotti preserved the assertion of his privacy interest in the apartment. 2
2 Moreover, as explained by Justice Wecht, the evidence produced at the suppression
hearing conclusively supported that Capriotti had a privacy interest in the apartment on
the day in question in his capacity as a de facto tenant pursuant to an oral lease or, if not
as a tenant, as an occupant of the apartment. See Wecht Dissenting Statement at 11
(explaining that it was Capriotti’s “subjective expectation of privacy, not his precise legal
relationship to the property” that is dispositive under the Fourth Amendment); see also id.
at 21-22 (demonstrating that, regardless, the facts from the suppression hearing showed
that Capriotti was effectively a tenant).
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Although the trial court never made the legal conclusion that Capriotti abandoned
his privacy interest in the apartment, 3 the issue lurked in the background. In its opinion,
the trial court stated that Capriotti “vacated the apartment approximately one (1) week
prior to the incident.” Trial Court Opinion, 11/30/20, at 5. As noted by Justice Wecht, the
trial court made no attempt to justify this statement by citation to the record and nothing
in the record could support that factual finding. Wecht’s Dissenting Statement at 11 n.25.
Nevertheless, Capriotti consistently challenged the finding that he had vacated the
apartment at every stage of proceedings from the time that the trial court first made it in
response to Capriotti’s post-sentence motion. In his Rule 1925(b) statement, Capriotti
refuted that finding by reasserting that he did, in fact, have “a right of privacy in … his
apartment,” a claim wholly inconsistent with the notion of abandonment ostensibly implied
by the trial court’s finding that he had vacated the apartment prior to the incident. Rule
1925(b) Statement at 1, ¶ 2. In his brief to the Superior Court, he repeatedly maintained
3 “[T]o prevail on a suppression motion, a defendant must demonstrate a legitimate
expectation of privacy in the area searched or effects seized, and such expectation
cannot be established where a defendant has meaningfully abdicated his control,
ownership or possessory interest.” Commonwealth v. Dowds, 761 A.2d 1125, 1131 (Pa.
2000) (citing Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998)). “Significantly,
abandonment of a privacy interest is primarily a question of intent and may be inferred
from words spoken, acts done, and other objective facts.” Id. (citing Commonwealth v.
Shoatz, 366 A.2d 1216, 1220 (Pa. 1976)). I would conclude that the trial court did not
make a ruling premised on abandonment, given that it never used that legal term of art,
but instead used the term “vacated,” which fails to encompass the primary question in
abandonment jurisprudence, which is a matter of intent, not one of mere spatial presence
in the location searched. See id. at 1131. Moreover, while the trial court cited case law
related to the silver platter and private search doctrines in its opinion, it cited no authorities
concerning abandonment. The court concluded the second phase of its analysis
(regarding the discovery of the contraband in the apartment) by invoking the silver platter
doctrine (citing Commonwealth v. Borecky, 419 A.2d 753 (Pa. Super. 1980)), making no
mention or reference to its prior statement about Capriotti’s vacating the apartment.
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that he did not abandon the apartment. Capriotti’s Superior Court Brief at 31, 33. 4
Likewise, Capriotti challenged the trial court’s factual finding in his Petition for Allowance
of Appeal, Petition for Allowance of Appeal at 8 (noting “uncontradicted evidence” during
the suppression hearing “that [Capriotti] was still occupying the upstairs apartment and
that he had not yet vacated the premises”), and in his brief to this Court, Capriotti’s Brief
at 15 (“There was no evidence that [Capriotti] ever abandoned the apartment.”). It is
4 In its brief to the Superior Court, the Commonwealth baldly asserted that: “The
testimony and evidence provided at trial showed that the [Capriotti] had vacated the
building and that [any] proprietary interest belonged solely to the owners of the real
estate.” Commonwealth’s Superior Court Brief at 8 (emphasis added). The
Commonwealth provided no citations to the record to support its assertion nor any
accompanying legal analysis. Indeed, on its face, the Commonwealth’s argument was
meaningless, as an appellate court’s “scope of review of suppression rulings includes
only the suppression hearing record and excludes evidence elicited at trial.”
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). Even so, there is also
nothing in the record from Capriotti’s trial that would support the wholly unfounded
assertion that Capriotti had “vacated,” much less “abandoned” the apartment, if the trial
transcripts fell within our scope of review. The trial court record shows the opposite. For
instance, Capriotti’s father testified at trial that, when he asked police to search Capriotti’s
apartment, the police refused to conduct a comprehensive search (beyond a brief safety
sweep), telling Capriotti’s father that they “didn’t have a legal right” to do so, ostensibly
because police well-understood at that time that Capriotti retained at least some privacy
interest in the apartment, his home, and had not vacated or abandoned it. N.T.,
11/3/2020, at 77. Later, Capriotti’s father agreed that his son was “[n]ever” locked out of
the apartment, and that when he heard footsteps from the apartment stairwell on the day
of the incident, he assumed it was Capriotti. Id. at 82. Capriotti’s mother also testified at
trial that Capriotti was “[n]ever” locked out of the apartment. Id. at 44. She further stated
that she and her husband “made sure that [Capriotti] had a key so that he could come in
and out of the apartment as he needed … .” Id. Not only does the trial record fail to
support the Commonwealth’s assertions that Capriotti had abandoned his privacy interest
in the apartment, but it also directly refutes that claim.
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patently clear that Capriotti had consistently challenged the trial court’s factual finding that
he had vacated the apartment prior to the contested search. 5,6
As recognized in our grant of allowance of appeal, 7 if the Commonwealth
established that Capriotti’s father possessed either the actual or apparent authority to
consent to Trooper Benjamin’s search of the apartment, the warrant requirement would
not have applied. However, neither the trial court nor the Superior Court ever discussed
authority to consent or apparent authority to consent, relying instead on the silver platter
and/or private search doctrines, which are wholly inapplicable if Capriotti’s father
possessed the actual or apparent authority to authorize Trooper Benjamin’s warrantless
intrusion. Nevertheless, Capriotti consistently maintained that his father had no such
authority to consent to a search. As noted by Justice Wecht, no such authority could
legally stem from Capriotti’s relationship to his father or his father’s role as a landlord, nor
do any other facts ascertainable from the suppression hearing suggest that Trooper
Benjamin could have reasonably believed that Capriotti’s father had the apparent
5 Moreover, as detailed by Justice Wecht, the record utterly fails to support the trial court’s
factual finding that Capriotti vacated the apartment. See Wecht Dissenting Statement at
10-11.
6 I further note that the Commonwealth effectively conceded that Capriotti had a privacy
interest in the apartment, stating: “The Commonwealth is not suggesting that [Capriotti]
had no expectation of privacy in his son’s room [where the contraband was found], just
that in the circumstances of this case that expectation was limited.” Commonwealth’s
Brief at 17 n.11 (emphasis added).
7 In granting Capriotti’s petition for allowance of appeal, we stated: “This question
necessarily implicates the legality of the non-occupant’s invitation, which the parties
should address factually and legally, as they have in the courts below.” Commonwealth
v. Capriotti, 273 A.3d 510 (Pa. 2022) (per curiam).
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authority to consent to a search of Capriotti’s private residence. See Wecht Dissenting
Statement at 22.
With respect to the father’s authority to consent, neither the trial court nor the
Superior Court concluded that an exigency exception to the warrant requirement applied
in this case. Indeed, exigency was only vaguely suggested by the facts testified to at the
suppression hearing in that the contraband was discovered inside Capriotti’s son’s
bedroom closet, presumably thereby creating a safety concern. The Commonwealth
sporadically and unconvincingly argues 8 that this fact supported a legal conclusion that
was never made by any lower court – that the risk to the child created an exigency,
justifying a warrantless search. However, I fully agree with Justice Wecht that, if there
was a concern for Capriotti’s son, either Trooper Benjamin or Capriotti’s father “could
have secured the apartment against entry by Capriotti’s son (or anyone else) while
troopers obtained a search warrant.” Wecht Dissenting Statement at 22. The
Commonwealth never made any attempt to demonstrate that temporarily securing the
premises was unfeasible, nor does the record independently reveal such a reason.
Finally, it was uncontested throughout the proceedings in this case that Capriotti
was on parole at the time of the search, thus, under certain circumstances, he had a
diminished expectation of privacy. However, any theory that Trooper Benjamin was
permitted to dispense with the warrant requirement because of that status would require
8 The Commonwealth’s Brief does not set forth exigency as an independent justification
for the warrantless search, and instead occasionally references Capriotti’s father’s
concern for his grandson due to the presence of the contraband. However, the
Commonwealth did aver that exigent circumstances existed in its answer to Capriotti’s
suppression motion (although it did not explain the nature of that exigency).
Commonwealth’s Answer, 5/30/2019, ¶ 10.
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a total revamping of the applicable law governing warrantless searches of homes of
parolees. The home of a parolee or probationer, “like anyone else’s, is protected by the
Fourth Amendment's requirement that searches be ‘reasonable.’” Griffin v. Wisconsin,
483 U.S. 868, 873 (1987). A warrant is generally required to satisfy the Fourth
Amendment’s reasonableness standard, however, the United States Supreme Court has
“permitted exceptions when ‘special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.’” Id. (quoting New
Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment)). The
Griffin Court held that a warrantless search of a parolee or probationer’s home satisfies
the Fourth Amendment if “it was carried out pursuant to a regulation that itself satisfies
the Fourth Amendment’s reasonableness requirement under well-established principles.”
Id. (emphasis added). The absence of regulatory framework governing warrantless
searches of a probationer’s or parolee’s residence is a critical factor in determining
whether such searches are reasonable under the Fourth Amendment, as this Court held
in Commonwealth v. Pickron, 634 A.2d 1093, 1098 (Pa. 1993) (holding that “in the context
of a probationer or parolee’s limited [F]ourth [A]mendment rights, some systemic
procedural safeguards must be in place to guarantee those limited fourth amendment
rights”). In Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013), this Court recognized that,
in Pennsylvania, 42 Pa.C.S. § 9912 governs the relationship between parole/probation
officers and parolees/probationers, noting that “Section 9912’s progenitor was adopted
by the General Assembly with an eye to addressing the constitutional concerns identified
in Pickron[.]” Wilson, 67 A.3d at 744.
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Pertinent here, Section 9912(b)(1) provides that “[o]fficers and, where they are
responsible for the supervision of county offenders, State parole agents may search the
person and property of offenders in accordance with the provisions of this section.” 42
Pa.C.S. § 9912(b)(1). Section 9912(d)(2) provides that probation/parole officers may
conduct a property search “if there is reasonable suspicion to believe that the real or other
property in the possession of or under the control of the offender contains contraband or
other evidence of violations of the conditions of supervision.” 42 Pa.C.S. § 9912(d)(2).
However, Section 9911 defines “Officer” as follows: “A probation or parole officer
appointed or employed by any court or by any county department of probation and parole
to supervise persons released on county probation or parole.” 42 Pa.C.S. § 9911
(“Definitions”). Conspicuously absent from this definition are police officers or state
troopers. Because no “officers” within the meaning of Section 9912(d)(2) participated or
accompanied Trooper Benjamin during his intrusion into Capriotti’s apartment, it is
patently clear that Trooper Benjamin’s failure to obtain a warrant was not permitted under
Griffin’s “special needs” exception the Fourth Amendment, because the search fell
outside the regulatory framework that permits that exception. 9
Nevertheless, neither the trial court nor the Superior Court ruled that the Capriotti’s
status as a parolee justified the warrantless intrusion into his apartment under the pretext
9 Assuming that we were to ignore the express statutory definition of an officer under the
statute, Trooper Benjamin’s actions would still not be authorized under Section 9912,
because subsection (d)(3) further provides that “[p]rior approval of a supervisor shall be
obtained for a property search absent exigent circumstances.” 42 Pa.C.S. § 9912(d)(3)
(emphasis added). Thus, absent exigency (which is not an issue in this case as discussed
above), Section 9912(d)(3) requires prior approval by a supervisor for any property search
undertaken under the auspices of probation and parole regulations, and there is no
indication in the record that Trooper Benjamin ever sought prior approval from any
supervisors before he transgressed into Capriotti’s apartment without a warrant.
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of the enforcement of parole regulations. While the Commonwealth had no burden to
preserve such an issue, it has never argued the applicability of the Griffin exception to the
warrant requirement at any stage in this case. Indeed, the Commonwealth briefly
mentions Griffin for the first time in its brief to this court, yet it tacitly concedes the
inapplicability of the Griffin exception, reasoning that “if parole officers had entered, the
seizure would have been permissible.” Commonwealth’s Brief at 25 (emphasis added).
Conclusion
In sum, this appeal is ripe for decision by this Court. Dismissing this appeal as
improvidently granted is, to me, unsupported given the gravity of the Fourth Amendment
implications of the Superior Court’s expansion of the silver platter doctrine 10 and the lack
of any discernable basis for avoiding the question we accepted for review. I respectfully
dissent.
Justice Wecht joins this dissenting statement.
10 I note that unpublished, non-precedential memorandum decisions issued by the
Superior Court after May 1, 2019 “may be cited for their persuasive value.” Pa.R.A.P.
126(b)(2).
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