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COMMONWEALTH v. PLATOU (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
PLATOU, APPELLANT



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.

COUNSEL

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 ...


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