Commonwealth v. Grundy

OPINION BY

KLEIN, J.:

¶ 1 The Commonwealth appeals from the trial court’s order suppressing the evidence of cars found in a “chop shop.” We reverse.

¶ 2 For several weeks, the police were aware of a pattern of theft and later stripping of cars in the Frankford area of Philadelphia. A number of cars, stripped of hoods, doors, etc., had been found in a two-block radius of the 4800 block of Mulberry Street. Two days after the latest stripped car was found, the police received a complaint that a white Nissan Maxima was stolen. This car had a LoJack anti-theft device that emitted a signal which could be traced and gets louder as one gets closer to it. Using several cars with the ability to track LoJack signals, the police received a strong LoJack reading in front of a gate at 4817 Mulberry Street, indicating close proximity to the stolen car. It was about 10:00 pm. on January 24, 2002.

¶ 3 There were no houses behind the gate, only rows of adjacent garages. The gate was closed, but unlocked. (N.T. 2/19/03, p. 23). There was a sign that an officer testified said, “keep gate locked,” (N.T. 2/19/03 p. 96), and the officers knew the garages were on private property (N.T. 2/19/03, p. 53). Although photographs of the fence were taken later and the officers did not know whether or not the signs were in place at the time they entered, the signs said, “No parking at any time to the far right, keep gate locked, please report anyone leaving gate open ... one garage now available.” (N.T. 2/19/03, P. 103).

¶4 The officers pushed the gate open and saw light coming from only one garage. As they got closer, the officers heard music playing and the sound of a power saw. Approaching the door to the garage, the officers noticed a hole the size of a half dollar where a lock had been removed. They looked through the hole in the door and identified the stolen car by license plate number. The officers entered the garage and arrested the person who turned out to be the lessee of that particular garage, Carlos Grundy, and three other men, Jamil Salter, Ryan Vial-va, and Darnell Pigford. The officers then obtained a search warrant and completed the search. The defendants filed a motion to suppress, which the trial court granted.

¶ 5 The Commonwealth raises two issues on appeal: (1) whether the three men other than Grundy had a reasonable expectation of privacy in the garage, and (2) whether exigent circumstances justified the police entry into first the lot and then the garage. We hold that the three men other than Grundy did not have an expectation of privacy, and there were exigent circumstances akin to “hot pursuit” justifying the entry into the garage area and then the specific garage, because unless the police acted immediately, an automobile would have been destroyed.

1. Only Grundy had a valid expectation of privacy in the garage.

¶ 6 In determining whether an area is protected from unreasonable searches, we analyze whether the person asserting the right has a legitimate expectation of privacy in the area. Commonwealth v. Ferretti, 395 Pa.Super. 629, 577 A.2d 1375, 1379 (1990). This determination is to be accomplished by examining the totality of the circumstances. Id.

¶ 7 In general, the expectation of privacy occurs in one’s home. It is clear that the three men other than Grundy had neither ownership nor tenancy rights in the garage. Unlike the situation of an overnight stay at a friend’s home, the “other men” here were participating in an file-gal activity inside a chop shop garage. Thus, as in Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993), even if Grundy had a valid privacy interest, the three other men had no privacy interest since they neither owned nor rented the garage and were only occupying it on a temporary basis for illegal business. See, e.g., Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (no meaningful privacy interest where Carter entered apartment with permission of the woman who leased it and spent several hours there helping her chop and pack cocaine into plastic baggies); Unites States v. Silva, 247 F.3d 1051, 1056 (9th Cir.2001) (no protected privacy interest in a shed used for manufacturing methamphetamine where, despite having key to the shed, appellants were not lessees of the property). See also Commonwealth v. Perea, 791 A.2d 427 (Pa.Super.2002) (defendant failed to demonstrate privacy interest in vehicle from which controlled substances were seized without warrant, where, even though defendant possessed vehicle keys, he had no paperwork to show ownership or any other legitimate connection to property).

2. Exigent circumstances.

¶ 8 As our Supreme Court stated in Peterson, supra:

Our analysis begins with the principle that warrantless arrests may be effected for felonies committed in the presence of the police, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973), unless the perpetrator of the felony is in his own home. Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978). In such instances, exigent circumstances must exist to justify the warrantless intrusion because of the substantial expectation of privacy in vested residential premises.

636 A.2d at 618.

¶ 9 Here the police were appropriately using LoJack to apprehend, at minimum, a felon in possession of a recently stolen car.¹ Since the LoJack device indicated to the police that the car was first moving and then stopped, the police concededly had probable cause for a search warrant. But they also had probable cause to arrest the person in possession of the Nissan in question. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, 310 (1963) (police may conduct warrantless arrest where there is probable cause to believe that a suspect has committed a felony). While a warrant is necessary for police entry into a home to make an arrest absent exigent circumstances, see, e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that is not the case here, since the area only contained garages and no one’s home. Because no one was in his or anyone else’s home, and the police had probable cause to make a war-rantless arrest for a felony, the officers’ actions were reasonable. Following the report of the stolen car, the modern technology of a LoJack device gave the police probable cause to believe they were honing in on a car thief. They were in hot pursuit of a stolen car, just as they would have been were they in view of the car. Once inside the fence, when the police saw the light and heard music and particularly power saw sounds emanating from only one garage, they reasonably believed that the car was about to be stripped. The police acted reasonably in moving to find the person who stole the car and arrest him or her. That the police have the authority to make a warrantless arrest where they have probable cause to believe a felony has been committed alone justified the entry into the garage. They further have probable cause to make an entry when they believe a car is about to be destroyed.

¶ 10 Moreover, there were exigent circumstances to justify the police action. Initially, we note that the entry into the gated area where there were 80 garages is not an entry into even Grundy’s property, but into the common space of a garage complex. Regardless of whether the owner of the garage complex had a privacy interest in the general garage space inside the fence, neither Grundy nor the others had a privacy interest in the common area. See Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185, 1192 (1988) (collecting cases) (“Generally, a subjective expectation of privacy as to that which is located in an area of common access will be deemed to be unreasonable”). It is irrelevant whether or not the owner gave permission. Any one of a number of people who rented the garages had access to the common area, and therefore the defendants did not expect to have privacy everywhere inside the fence. Moreover, the LoJack signal gave the police reasonable ground to enter the fenced area to make an arrest just as they could have had they seen the stolen car enter the complex and observed its occupants close the gate behind them.

¶ 11 Once inside the gate, there were “exigent circumstances” that justified the entry into the garage where the car was about to be chopped up. First the light and then the sound of loud music and the electric saw drew the police to the garage in question. This is not merely the case of a stolen car taken for resale in some other location or even just a joy ride. The police had information that there was a chop shop in the area and had found numerous stripped cars in the immediate vicinity, including one only two days earlier. If the police had taken the time to first seek a warrant, the Nissan would have been in parts and junk by the time they got back. All agree that the trial judge was correct when she said, “a car can be disassembled in a matter of minutes.” (Trial Court Opinion at 11).

¶ 12 As the Commonwealth pointed out in its brief:

While it is true that a more extreme exigency would have been presented had defendants been carving up people, rather than cars, the seriousness of the criminal activity at issue — an enterprise involved in the theft and destruction of numerous automobiles over a four month period — cannot be discounted.

Brief for Appellant at 26-27. Automobiles are generally one of, if not the, most valuable items owned by the average citizen. There is no requirement that the police stand idly by while they have probable cause to believe that someone’s valuable asset is about to be destroyed. Stated simply, exigent circumstances exist where, absent police action, a valuable automobile will be destroyed.

¶ 13 While defendants frequently cite the seven-part test of “exigency” enunciated in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), the considerations therein are guidelines, not mandates that defeat the generally understood definition of exigent circumstances.² Viewing the totality of the circumstances, and balancing the diminished privacy interest in a non-residential garage against the heightened need for law enforcement in this case, immediate police action was reasonable. See generally Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (“touchstone” of constitutional analysis is “always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security,” calling for a balance between the public interest and the individual’s right to personal security free from arbitrary interference) (citations and quotations omitted). See also Commonwealth v. Reed, 851 A.2d 958, 2004 WL 1211505 (Pa.Super. June 3, 2004) (defendant did not have reasonable expectation of privacy in common hallway and stairs of apartment building where he resided, even though outside door of building was locked and required assistance of resident to open); Commonwealth v. Thomas, 698 A.2d 85 (Pa.Super.1997) (no reasonable expectation of privacy in communal fire escape from which officer viewed marijuana growing outside suspect’s apartment).

¶ 14 Order reversed and case remanded for trial. Jurisdiction relinquished.

¶ 15 McEWEN, P.J.E., files a Concurring and Dissenting Opinion.

1 . Any theft offense concerning a vehicle, including receiving stolen property, is graded as a felony of the third degree. Commonwealth v. Holzlein, 706 A.2d 848, 852 (Pa.Super.1997), citing 18 Pa.C.S. § 3903(a.1).

2 . In any event, we note that those considerations point to exigency in this case given (1) the seriousness of the crimes; (2) the reasonable likelihood that the suspects were armed (if only with power tools); (3) the clear showing of probable cause; (4) the police had very good reason to believe the suspects were inside the premises; (5) the entry by police was peaceable; and (6) the entry occurred at night, at which time a greater delay in obtaining a warrant could be expected. While the remaining factor, the likelihood of escape in the absence of immediate apprehension, does not militate heavily in favor of exigency, there is no need for all of the above factors to coalesce in a single case. Rather, exigent circumstances may exist where some factors are absent. Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350, 355 (1992). Thus, on balance, the above factors indicate exigency in this case.