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COMMONWEALTH PENNSYLVANIA v. TIMOTHY DAVID GABRIELLE (03/23/79)

submitted: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
TIMOTHY DAVID GABRIELLE, APPELLANT



No. 2357 October Term 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Berks County, Pennsylvania Criminal Div., to No. 77063501-4.

COUNSEL

Robert Lee Moore, Assistant Public Defender, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.

Price, Spaeth, and Lipez, JJ. Price, J. dissents.

Author: Spaeth

[ 269 Pa. Super. Page 341]

This is an appeal from judgment of sentence for illegal possession of a controlled substance. The issue is whether the lower court erred in denying appellant's motion to suppress a cellophane bag containing marijuana.

On May 12, 1977, police received a tip that appellant, a prisoner at Berks County Prison in the work release program, would have marijuana in his locker at his place of employment on the following day. The locker was described by number. The source of the information was the warden at Berks County Prison.

The following day, a plainclothes police officer, without obtaining a search warrant, went to the plant where appellant worked, identified himself to a receptionist, and followed appellant to the locker. After appellant opened the locker, which was the bottom locker in a tier, and thus near the floor, the officer stooped down, and while looking over appellant's shoulder into the partially opened locker, observed a cellophane bag that he believed to contain marijuana. The officer arrested appellant, and seized the bag from the locker.

Appellant contends that this evidence should have been suppressed, because the police had ample time in which to secure a warrant, did not, and offered no excuse for failing to do so.

[ 269 Pa. Super. Page 342]

The requirements of the Fourth Amendment apply not simply to one's home, but to any area where one has a "reasonable expectation of privacy." United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, the Fourth Amendment has been applied in a variety of settings. United States v. Chadwick, supra (foot-locker); GM Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977) (office); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (hotel room); Gillard v. Schmidt, 579 F.2d 828 (3d Cir. 1978) (desk at place of employment).

In cases involving a locker at the defendant's place of employment, courts have evaluated the surrounding circumstances to determine whether the defendant's expectation of privacy was reasonable. In United States v. Speights, 557 F.2d 362 (3d Cir. 1977), police searched the locker of a fellow officer pursuant to a tip in connection with an investigation of a burglary ring. The court held that the locker was protected by the Fourth Amendment, because the officer stored personal effects in it without objection from the police department; there were no departmental regulations that authorized searches without consent; there was no significant pattern of prior searches that would have alerted the defendant to the risk of a search; and he had secured the locker with a personal lock to which the department did not have a key. Id. at 363-65. In United States v. Bunkers, 521 F.2d 1217 (9th Cir.), cert. denied, 423 U.S. 989, 96 S.Ct. 400, 46 L.Ed.2d 307 (1975), the court held that a postal service employee did not have a reasonable expectation of privacy, because the locker was supplied specifically for employees' "convenience at work," which the court interpreted as prohibiting the storage of personal ...


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