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decided: November 26, 1973.


Appeal from order of Superior Court, April T., 1971, No. 53, affirming judgment of sentence of Court of Common Pleas of Crawford County, May T., 1970, No. 48, in case of Commonwealth of Pennsylvania v. Peter Erling Platou.


Robert G. Geeseman, with him G. Harold Blaxter, for appellant.

Bruce L. Smith, Assistant District Attorney, with him Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellee.

Jones, C.j., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.

Author: Roberts

[ 455 Pa. Page 260]

Appellant Peter E. Platou was convicted of possession of marijuana*fn1 and sentenced to serve two years probation and to pay a $500 fine. He moved before trial to suppress the marijuana seized from his effects. After the denial of his motion, appellant was tried non-jury. At trial the challenged evidence was introduced over objection. Appellant was adjudged guilty, and the Superior Court affirmed in a per curiam opinionless order. Commonwealth v. Platou, 220 Pa. Superior Ct. 779, 286 A.2d 402 (1972). We granted allocatur to consider whether the seizure of marijuana from appellant violated his right to be free from unreasonable searches and seizures.*fn2 We hold it did. We reverse and grant a new trial.

At the time of the search appellant was a guest in the apartment of his friend, Robert Wander. On the basis of a sale of marijuana by Wander to a police agent, an arrest warrant for him and a search warrant for his premises were obtained. The police arrested Wander at his place of work and accompanied by him proceeded to his apartment. At this time, the police had no knowledge of appellant's existence. Approaching the apartment, Wander informed the police that he had a friend visiting him. When the police arrived they read the warrant to Wander and entered. Although it is unclear exactly what next transpired, the record does establish that the police announced they had authority to search everything in the apartment

[ 455 Pa. Page 261]

    and that appellant claimed the two suitcases lying on the floor of Wander's apartment were his.*fn3 Despite being on notice that the suitcases did not belong to Wander, the police began searching them simultaneously with their initiating a search of the apartment. In one of appellant's suitcases they found a single ounce of marijuana.*fn4

The Commonwealth attempts to justify its search of appellant's suitcases solely on the ground that it was authorized by a valid warrant.*fn5 It argues that

[ 455 Pa. Page 262]

    because the suitcases were separated from appellant's person and located within Wander's apartment, they were properly searched. We disagree.

The search of appellant's suitcases under the authority of the search warrant for Wander's apartment is analagous to those situations in which consent searches have been invalidated because the place or thing searched was in the exclusive control or possession of a non-consenting party, and the consenting party did not have "an independent right of his own to consent to the seizure . . . ." Commonwealth v. Storek, 442 Pa. 197, 200, 275 A.2d 362, 364 (1971); see Cunningham v. Heinze, 352 F. 2d 1, 4-5 (9th Cir. 1965), cert. denied, 383 U.S. 968, 86 S. Ct. 1274 (1966); Reeves v. Warden, 346 F. 2d 915 (4th Cir. 1965); Holzhey v. United States, 223 F. 2d 823 (5th Cir. 1955); United States v. Blok, 188 F. 2d 1019 (D.C. Cir. 1951); United States v. Poole, 307 F. Supp. 1185 (E.D. La. 1969); cf. Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 1425 (1969). It is controlled by the same rationale. The reasoning of these "consent" search cases is that a person cannot waive the Fourth Amendment rights of another with respect to property owned or possessed by that other person.

Like consent, a warrant fulfills the Fourth Amendment requirement that searches be reasonable. But a warrant can only authorize a search of the place or thing for which an affidavit*fn6 containing facts constituting probable cause has been submitted. If a warrant

[ 455 Pa. Page 263]

    permits the search of premises or effects of a particular person, as here, then it cannot be extended by the officer executing the warrant to include a search of things not belonging to or under the control of that person. In the instant case, it is undisputed that Wander had no control over appellant's effects. Moreover, the police before undertaking their search were on notice that the suitcases belonged to appellant, and not Wander. The property of appellant cannot be searched under the authority of a warrant for the premises of Wander. If it could, appellant would not be afforded his Fourth Amendment guarantee with respect to his property, because no magistrate ever decided that probable cause existed for the search of his effects.*fn7

To hold that the search of appellant's suitcases was authorized by the search warrant for Wander's apartment would offend the Fourth Amendment's directive that "no Warrants shall issue, but upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized."*fn8 The police had no knowledge of the existence of appellant, or of his property, prior to the time they entered Wander's apartment. A fortiori, neither did the issuing magistrate. The warrant therefore could not possibly have described appellant's effects. If the officer executing the warrant, by his own choice, could extend its reach by searching things not particularly described therein, the constitutional prescription of particularity would be violated. "The requirement that warrants shall particularly describe the things to be seized makes general

[ 455 Pa. Page 264]

    searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76 (1927); see Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506 (1965); Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524 (1886); Commonwealth v. Matthews, 446 Pa. 65, 72-74, 285 A.2d 510, 513-14 (1971).

Our determination here is in accord with Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970). There, this Court held that police, validly within an apartment under the authority of a search warrant, unconstitutionally searched persons who happened to be on the premises and about whom the police had no information suggesting involvement in criminal activity. Implicit in Reece was this Court's refusal to sanction the right of an officer executing a search warrant to extend its scope to cover persons or things not particularly described in the warrant. Our conclusion is consistent with the reasoning in United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222 (1948),*fn9 and with the result reached in other jurisdictions.*fn10

[ 455 Pa. Page 265]

The facts of Reece are strikingly akin to those of the instant case. There the police, acting on an informant's

[ 455 Pa. Page 266]

    tip, obtained a search warrant for an apartment where a "pot" party was supposedly going to be held. As persons entered the apartment, the police searched them. Those found with narcotics were arrested. In both Reece and the present case, the police had no information about the visitors; no indicia existed to suggest criminal activity; the crime charged was possession of marijuana, "a crime [which] by its very nature is unique to the individual." Reece, supra at 427, 263 A.2d at 466. In both, guilt by association was the sole rationale for the search and subsequent arrest. See Sibron v. New York, 392 U.S. 40, 62-66, 88 S. Ct. 1889, 1902-04 (1968).

While recognizing the applicability of Reece to the present case, the Commonwealth has attempted to distinguish it. The only factual distinction is that the search in Reece was of the guest's person, and here the search was of the guest's effects. There is no constitutional difference.

The Fourth Amendment guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."*fn11 A person does not lose the protection of the Fourth Amendment by entering the apartment of another. Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 511 (1967); Jones v. United States, 362 U.S. 257, 261-67, 80 S. Ct. 725, 731-34 (1960); Reece, supra. Neither do a person's effects. The Fourth Amendment permits no lesser protection for a person's effects, than for his person. So long as a person seeks to preserve his effects as private, even if they are accessible to the public or to others,

[ 455 Pa. Page 267]

    they are constitutionally protected. Katz, supra at 351, 88 S. Ct. at 511. Stated differently, a person must maintain the privacy of his possessions in such a fashion that his "expectations of freedom from intrusion are recognized as reasonable." Id. at 361, 88 S. Ct. at 517 (Harlan, J., concurring).

Personal belongings brought by their owner on a visit to a friend's house retain their constitutional protection until their owner meaningfully abdicates control or responsibility. Appellant's placing his suitcases on the floor of Wander's apartment and opening one of them does not amount to an abandonment of his control. Appellant maintained his reasonable expectation of privacy. And therefore the search of his suitcases was unreasonable and constitutionally impermissible.

The order of the Superior Court is reversed. The judgment of sentence of the Court of Common Pleas of Crawford County is reversed and the case is remanded for a new trial.


Order of Superior Court reversed; judgment of sentence reversed and case remanded for new trial.*fn*

Disposition FOOTNOTES

* : On June 17, 1974, the Supreme Court of the United States denied a petition for certiorari in this case, "it appearing that the judgment below rests upon an adequate state ground." Pennsylvania v. Platou, 417 U.S. 976, 94 S. Ct. 3183 (1974).

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