Commonwealth v. Grahame

DISSENTING OPINION

BY KELLY, J.:

¶ 1 I respectfully dissent. The Majority opinion serves to diminish privacy protections long afforded by both the Fourth Amendment of the Constitution of the United States and Article 1, Section 8 of the Constitution of the Commonwealth of Pennsylvania. The Majority opinion cites two bases on which to uphold the trial court’s denial of the suppression motion: first, that the initial warrantless search of the home was permissible by way of apparent consent, specifically, consent provided when the person who answered Officer Russell’s knock on the door to the residence agreed to and signed a consent form;4 second, that the police had reasonable suspicion that officer safety was compromised, thus permitting a protective search of Appellant’s purse. However, any authority to authorize a search of the premises is not so broad as to permit the search of personal items belonging to visitors who do not consent. Moreover, the record simply does not support reasonable suspicion here, and I do not agree that the search of Appellant’s purse was justified as protective under Terry.

¶ 2 The facts of this case are reminiscent of the iconic case of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 888, 62 L.Ed.2d 238 (1979). In Ybarra, upon information that drug transactions were taking place in a particular bar, police obtained a warrant to search both the tavern and a bartender for *768drugs and related contraband. When the police arrived, they announced their purpose and proceeded to search the patrons of the bar in what they characterized as “a cursory search for weapons.” During the search, officers discovered and removed from Ybarra a cigarette pack which contained heroin. The Court held that search was unreasonable on grounds that there was an insufficient link between the patrons of the bar and the known criminal conduct giving rise to the warrant, and that there was no particularized suspicion of the patrons to warrant the searches for weapons:

[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places.

Id. at 91-92, 100 S.Ct. 338 (citations and quotations omitted) (emphasis added). Turning to the question of whether the individual searches were supported by reasonable suspicion of a risk to officer safety, the Court stated:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

Id. at 92-93, 100 S.Ct. 338.

¶ 3 In the present case, an officer observed a youth, D.W., involved in a drug transaction with a confidential informant; D.W. entered and exited the residence that was ultimately searched. When the police approached the house, they received valid consent from someone with apparent authority to authorize a search of the premises. However, as Ybarra makes clear, such has constitutional limits.

¶ 4 Instructive in the analysis of the scope of a consent search are cases involving the rights of a passenger in a car that is searched with the permission of the driver. In Commonwealth v. Viall, 890 A.2d 419 (Pa.Super.2005), such a search was conducted and drugs were found; the appellant challenged the search on the ground that he had a separate right to privacy. We held that “[w]hile passengers in an automobile may maintain a reasonable expectation of privacy in the contents of luggage they placed inside an automobile, it would be unreasonable to maintain a subjective expectation of privacy in locations of common access to all occupants.” Id. at 423 (citations omitted).' Thus, consent is only valid in locations to which the consenting party has rightful access; while a vehicle’s driver can consent to a search of the passenger compartment, the driver does not have such access to the passenger’s luggage or containers and cannot consent to searches of those items.

¶ 5 Similarly here, the consent does not extend to a visitor’s belongings.5 The offi*769cers ascertained that the purse did not belong to the woman from whom they received consent, but Appellant’s permission to search the bag was never sought. In such a situation, the officer could have either asked for and received permission to search the bag, or alternatively, sought a warrant. The authority of police in a search pursuant to consent alone is by nature evanescent — at any moment the consenting party, or any occupant for that matter, may withdraw consent, and unless probable cause arises from an exceptional circumstance, like the identification of contraband in plain view, the police would be obligated to depart. See Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (police may not continue to search based on one occupant’s consent when another present co-occupant refuses).

¶ 6 The government has the burden to show that consent to search is voluntary; in making this showing, the consenting party must be either the defendant or a third party who has authority over the specific place or personal effect to be searched and must have “common authority over or other sufficient relationship to the premises or effects sought to be inspected. U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (citations and quotations omitted) (emphasis added). “The authority which justifies the third-party consent ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes.” Id. at note 7 (citations omitted) (emphasis added).”

¶ 7 In the present case, the police officer testified that she asked Appellant if the purse was hers, and that Appellant responded that it was. The officer then immediately searched the bag without asking for permission. Nothing in the record indicates that anyone other than Appellant had any control or domain over the purse.

¶ 8 The Majority also holds that the search of Appellant’s purse was permissible because the officer had reasonable suspicion that Appellant had a weapon. The opinion cites Commonwealth v. Thompson for this proposition, but the facts in that case are distinguishable from those presented here. In Thompson, an officer stopped the appellant’s car for a traffic violation, and recognized the appellant, who was driving, as someone with prior drug convictions. Further, the appellant continued to put his hands into his pockets even though the officer repeatedly instructed him to keep his hands in view. Those articulable specific facts combined with the officer’s particular experience were found by this Court to provide reasonable suspicion, from which the officer could infer that his safety was compromised.

¶ 9 In the present case, the officer performing the search did not know Appellant or have any reason to believe she was involved in illegal drug activity; nor did the officer did not observe any suspicious movements. As noted by the Majority, when asked why she believed the bag might have concealed a weapon, the officer responded only with “[bjecause the drugs was [sic] coming out of the property? [sic] The boy had drugs on him and drugs and guns go hand in hand.” (N.T. Motion, 9/29/06 at 13). This single articulated “fact” does not begin to approach the particularized suspicion articulated by the officer in Thomson, and our Supreme Court has held that police experience with narcotics by itself is not enough to show prob*770able cause. See Commonwealth v. Dunlap, 941 A.2d 671, 2007 WL 4557837 (Pa.2007) (holding “the officer must demonstrate a nexus between his experience and the search, arrest, or seizure of evidence.”). Thus, the Majority’s reliance on Thompson is misplaced.

¶ 10 The Majority’s reliance on Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), is also misplaced. In Davidson we held that the search of the appellant was a valid in light of several facts: Davidson’s companion, the driver of the vehicle in which she was a passenger, had a significant amount of money and white powder with him, and while Davidson was being driven to the police station, she reached for her handbag. The officer testified that this made him feel unsafe, and that he told her not to touch it. She ignored him, and when she reached for the bag again he took it from her and placed it between his legs, noting that it felt “very heavy.” Id. at 898. When they reached the station and Davidson asked for the return of her bag, the officer searched it. The facts of Davidson are far more specific than those presented here, and particularized to the appellant and to her handbag: Davidson was a passenger in a car where bags of drugs were found visibly “bulging” from the drivers pockets, she reached for her bag after being told not to, and the officer felt the bag and thought it was unusually heavy. Here, Appellant did not reach for her bag, and the feel or weight of the bag was not apparent to the officer. Thus, Davidson does not control.

¶ 11 Accordingly, I would hold that the apparent consent to the search of the house did not extend to a search of Appellant’s purse, and that there was not a sufficient showing of reasonable suspicion to permit a protective search. As the search was illegal, I would find that the marijuana, the $900 and the plastic packets were the poisoned fruits of that search, and I would reverse the trial court.

¶ 12 Further, I am compelled to point out that although Appellant has raised the issue of the enhanced privacy protections of Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania, the Majority has failed to perform the analysis required by our Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). This Court recently discussed this analysis, finding that Article I, Section 8 of the Pennsylvania Constitution offers greater privacy protections than the Federal Constitution:

In determining the scope of protection afforded under Article I, Section 8, the Pennsylvania Supreme Court employs the same two-part test employed by the United States Supreme Court to determine the sweep of the Fourth Amendment of the U.S. Constitution — a test first articulated by Justice Harlan in his concurring opinion in [Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, (1967) ]. That test requires a person to (1) have established a subjective expectation of privacy and (2) have demonstrated that the expectation is one that society is prepared to recognize as reasonable and legitimate.

Commonwealth v. Moore, 928 A.2d 1092, 1099-1101 (Pa.Super.2007) (some citations and quotation marks omitted).

¶ 13 In light of this analysis, I would find that under the expanded privacy right inherent in Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania, Appellant, as a visitor, had a subjective, legitimate, and reasonable expectation of privacy in her purse. She could have reasonably have expected that the contents of any container she carried would remain private unless and until she provided express permission for an exploration of the contents; a general consent *771to search the premises provided by someone who had no right of access to the purse cannot reasonably be extended to it. Thus, even if the Majority’s reading of the federal constitutional claim were correct, I would find in addition to the reasons already explained, that because Appellant’s state constitutional rights were violated the fruits of the unlawful search should be suppressed.

. We note that while the Motion Hearing transcript reveals that the consent form was entered into evidence (N.T. Motion, 9/29/06, at 10, 18), the form is not in the certified record.

. Our Supreme Court has addressed a similar situation in the context of a warrant search. In Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909 (1988), the Court held that a warrant "defines” the scope of a lawful search "by the object of the search and the places in which there is probable cause to believe that it may be found.” Id. at 911 (emphasis in original). The Court then determined that the search of a visitor's jacket found in the resi*769dence, for which the police had a warrant, was lawful. However, in Reese, the officer searched the jacket "[wjithout knowing who the jacket belonged to but suspecting that it may [sic] contain contraband.” Id. at 910. In the present case there was no warrant.