NO. 2807 PHILA. 1981, Appeal from the Order in the Court of Common Pleas of Monroe County, No. 596 of 1981. NO. 2808 PHILA. 1981, Appeal from the Suppression Order in the Court of Common Pleas of Monroe County, No. 595 of 1981. NO. 2809 PHILA. 1981, Appeal from the Order in the Court of Common Pleas of Monroe County, No. 594-1981. NO. 2810 PHILA. 1981, Appeal from the Order in the Court of Common Pleas of Monroe County, No. 597-1981
Charles W. Kirkwood, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.
John P. Lawler, Stroudsburg, for appellees.
Spaeth, President Judge, and Beck and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 328 Pa. Super. Page 106]
This is an appeal by the Commonwealth from an order suppressing evidence. Finding the affidavit on which the search warrant was issued sufficient to establish probable cause, we reverse and remand for trial.
Each of appellees, Tannhauser, Joensuu, O'Shea, and Roth, is charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and criminal conspiracy. The charges arise from a search of the Roth residence. The search was conducted pursuant to a warrant and led to the seizure of, inter alia, approximately 5,100 pounds of marijuana. Appellees moved to suppress the evidence on the ground that the affidavit on which the warrant was issued did not establish probable cause.
A hearing on the motion to suppress was held on September 29, 1981. Pursuant to Pa.R.Crim.P. 323(f), appellees requested that the hearing be held in private. The request was granted, and the transcript concludes with the statement that after an off-the-record discussion, "the reporter was advised by the Court that he would not be needed, that the remainder of the hearing would be in the form of arguments by counsel, all counsel agreeing, whereupon the reporter left . . . ." After hearing argument, the trial court, by order dated September 30, 1981, ordered the evidence suppressed, holding in an opinion accompanying the order that the affidavit on which the warrant was
[ 328 Pa. Super. Page 107]
issued did not establish probable cause. The Commonwealth then filed this appeal. The record discloses that the suppression order substantially handicaps the Commonwealth's prosecution, for without being able to use the seized marijuana as evidence, the Commonwealth may well have no case. The appeal is therefore not interlocutory. Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983).
Following its appeal, the Commonwealth petitioned this court to remand the record to the trial court for a hearing. In its petition the Commonwealth alleged that a hearing had not been held on appellees' motion to suppress and that a hearing was necessary to establish: (1) that the trial court made a factual error in its opinion; (2) that appellees Tannhauser, Joensuu, and O'Shea had no standing to challenge the search; (3) that probable cause did exist based on facts additional to those recited in the affidavit on which the warrant issued; and (4) that the police acted in good faith. By Per Curiam order dated February 18, 1982, this court granted the petition for remand, and pursuant to this order, the trial court conducted evidentiary hearings. Meanwhile, by Per Curiam order dated January 12, 1983, this court amended its order of February 18, 1982, to allow the trial court to make "such findings of fact and conclusions of law as it deems appropriate as the hearing tribunal." Pursuant to this amendment, the trial court by opinion dated June 6, 1983, made findings of fact and conclusions of law, and held that appellees Tannhauser, O'Shea, and Joensuu had no standing to challenge the validity of the warrant, that the police had probable cause to stop and search Joensuu, and that the execution of the warrant was illegal because there were no exigent circumstances to justify the failure of the police to knock and announce their presence before entering the Roth residence. Upon the Commonwealth's application for reargument and reconsideration, the court by opinion dated July 13, 1983, made additional findings of fact and conclusions of law, and held that the police had observed the knock-and-announce rule and that the search warrant
[ 328 Pa. Super. Page 108]
was legally executed. In an addendum to this opinion, the court, noting the United States Supreme Court's recent decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), concluded that considering the totality of circumstances and applying a common-sense approach, the police and the District Justice who issued the warrant "had a substantial basis to find that there was a 'fair probability' that there was [ sic ] contraband drugs in the Roth residence." The court then recommended that suppression of the seized marijuana be denied.
The Commonwealth argues -- to state the argument generally -- that this court should adopt the trial court's recommendation, and on the strength of it, vacate the court's earlier suppression order. This general argument divides into several arguments. With respect to appellees Tannhauser, Joensuu, and O'Shea, the Commonwealth argues that they lacked standing to challenge the search and that even if they had standing, the affidavit established probable cause. With respect to appellee Roth, the Commonwealth argues in the alternative: that the affidavit established probable cause; or that the totality of circumstances established probable cause; or that the exclusionary rule should not be applied in this case.
The Commonwealth argues that appellees Tannhauser, Joensuu, and O'Shea lacked standing to challenge the validity of the search because they were "simply visitors" at the Roth residence and therefore had no reasonable expectation of privacy there. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The Commonwealth first raised this issue in its petition to this court seeking a remand for a hearing on the suppression motion. Appellees argue that the Commonwealth bears the burden of proof on this issue and therefore waived any objection to appellees' standing by not raising the issue at the September 29, 1981, hearing on the suppression motion. Alternatively, appellees argue that the evidence produced on remand was sufficient to prove their standing. The Commonwealth
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argues that appellees bear the burden of proving their standing to challenge the search and that it was therefore their burden to offer evidence on the issue at the September 29, 1981, hearing. Alternatively, the Commonwealth argues that the evidence introduced on remand proved that appellees had no standing.
We need not resolve the dispute about waiver and burden of proof. In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), our Supreme Court held that a defendant accused of a possessory crime will continue to have "automatic standing" under Article I, section 8, of the Pennsylvania Constitution to challenge the admissibility of evidence alleged to be the fruit of an illegal search. In so holding, the Court declined to follow the United States Supreme Court's decision in United States v. Salvucci, supra, in which that Court abolished "automatic standing" under the federal constitution. Since appellees have been charged with possessory offenses, they are entitled to "automatic standing" under the Pennsylvania Constitution to maintain a motion to suppress.
In considering the Commonwealth's argument that the affidavit established probable cause for the issuance of a warrant to search the Roth residence, we shall not repeat verbatim all fourteen paragraphs of the affidavit, for that would serve no useful ...