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COMMONWEALTH PENNSYLVANIA v. KEITH D. LOWERY (10/01/82)

filed: October 1, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH D. LOWERY, APPELLANT



No. 770 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8008390A

COUNSEL

John E. Nickoloff, Pittsburgh, for appellant.

Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Brosky, Cirillo and Popovich, JJ.

Author: Brosky

[ 305 Pa. Super. Page 69]

This is an appeal from a judgment of sentence. Appellant was convicted in a non-jury trial of possession of an unlawful substance, lysergic acid diethylamide (LSD), and sentenced to one year probation.

The trial court denied appellant's motions for a new trial and for arrest of judgment. First, it rejected appellant's claim that a police search of his bedroom with the consent of appellant's mother violated his Fourth Amendment right to privacy. Second, the court found that the mother voluntarily consented to the police search, and that the drugs seized during the search were therefore admissible as evidence. We affirm the decision of the trial court.

The standard of review concerning the findings of a suppression court is well-established. We must consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978); Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). "Where the suppression court's findings are amply supported by the record they may not be disturbed on appeal." Commonwealth v. O'Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974).

[ 305 Pa. Super. Page 70]

The facts may be summarized as follows. At 11:15 p.m. on December 5, 1980, two police officers from the Pine-Marshall-Bradford Woods Police Department appeared at the home of Dr. and Mrs. Clinton A. Lowery, appellant's parents. Appellant was asleep in the basement at the time. The police told Mrs. Lowery they believed appellant had secreted approximately 100 squares of LSD in his bedroom bookshelf, and asked her permission to search the room. Explaining that she could refuse to allow the search, the police said they would obtain a search warrant if she did so. The police did not inform Mrs. Lowery that they had a search warrant in their possession at the time.

Mrs. Lowery said if there were any drugs in her residence, she wanted them out. After further discussion, she signed a consent warrant. The two officers and Mrs. Lowery proceeded to appellant's bedroom, where a search revealed 98 squares of LSD inside a book on a bookshelf. The officers then woke up appellant and arrested him.

Appellant contends that he had a reasonable expectation of privacy in his bedroom under the Fourth Amendment and was the only person who could have validly consented to its search. Since he did not consent, he argues, the evidence seized should have been suppressed at trial.

". . . Whether an individual is entitled to the protection of the fourth amendment 'depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Commonwealth v. Sell, 288 Pa. Super. 371, 377, 432 A.2d 206, 210 (1981), citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), reh. den., 439 ...


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