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Commonwealth v. Basking

April 14, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ANDRE EDWARD BASKING, APPELLEE



Appeal from the Order Entered May 17, 2007, In the Court of Common Pleas, Allegheny County, Criminal, at No. CC 200517437.

The opinion of the court was delivered by: Allen, J.

BEFORE: FORD ELLIOTT, P.J., LALLY-GREEN and ALLEN, JJ.

OPINION

¶ 1 In this case, we are asked to explore the contours of the common authority and apparent authority doctrines, which are corollaries to the consent exception to the warrant requirement.*fn1 Additionally, this Court must decide if the apparent authority exception, if adopted and applied to the citizens of this Commonwealth, violates the strong notion of privacy inherent in Article I, Section 8 of the Pennsylvania Constitution.

¶ 2 The Commonwealth appeals from the trial court's order granting Andre Basking's ("Basking") motion to suppress, finding that the police search of Basking's living quarters was unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. On appeal, the Commonwealth, inter alia, asserts that the trial court erred in finding that the third-party consent to search in this case was impermissible. The Commonwealth further contends that the trial court erred in concluding that the third-party consent, although valid pursuant to the apparent authority doctrine for purposes of the Fourth Amendment, nonetheless infringed Basking's rights under Article I, Section 8. Upon review, we find the Commonwealth's argument meritorious. Accordingly, we reverse the trial court's order and remand for proceedings consistent with this Opinion.

¶ 3 The trial court aptly summarized the facts of this case as follows.

The facts of this case demonstrate that on November 13, 2005, Officer [Sean] Rattigan of the City of Pittsburgh Police Department was dispatched to 6526 Meadow Street, Pittsburgh, Pennsylvania for a domestic call. When he arrived at the scene, Officer Rattigan observed an adult female sitting on an outside wall. The female was crying and she was accompanied by two young children at the time. Upon being questioned by Officer Rattigan, the female indicated that [Basking] had assaulted her and during the incident [Basking] fired "two rounds at her." The female advised Officer Rattigan that [Basking] was last seen running into the residence located at 6526 Meadow Street. The City of Pittsburgh "Special Emergency Response Team" or "SERT" was also dispatched to the scene as well. Officer Rattigan did not personally observe [Basking] at that residence. However, shortly after being on the scene, Officer Rattigan was advised, over the police radio, that [Basking] had turned himself in to the police at the Zone 5 Police Station.

After [Basking] was in custody, law enforcement officers decided to conduct a search of the house [located at 6526 Meadow Street] for the weapon used by [Basking] in the assault. The SERT term entered the house first and conducted a sweep of the house to ensure that no other persons were in the house prior to [initiating] a search[.] At some point, Officer Rattigan advised [Basking's] mother, [Leslie Nunley], who owned the house, that he wanted to search the house for the weapon alleged to have been used by [Basking.] [Nunley] did permit a search of the house but requested that she be permitted to accompany the law enforcement officers during the search. During the search of the third floor, the officers found heroin and weapons as well as some other incriminating evidence.

Trial Court Opinion (T.C.O.), 1/25/08, at 2-3.

¶ 4 On April 4, 2006, the Commonwealth charged Basking with counts of drug possession offenses, receiving stolen property, and illegal possession of a firearm. In turn, Basking filed an omnibus pre-trial motion to suppress, asserting, inter alia, that the police obtained the contraband in violation of the consent exception to the warrant requirement. Specifically, Basking maintained that Nunley did not possess actual or apparent authority to consent to a search of the third floor under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

¶ 5 At the suppression hearing, Officer Rattigan testified that Nunley was Basking's mother and that she owned the Meadow Street residence. R.R. at 19, 43-44, 57. Officer Rattigan stated that he told Nunley that Basking may have hidden the firearm inside the residence and asked for her consent to look for it. R.R. at 19a. After procuring Nunley's consent, the police, accompanied by Nunley, searched the first and second floors of the residence. R.R. at 19, 41-42. Nunley informed the police that if they were going to find anything, it would be on the third floor because that's were Basking stayed. R.R. at 42. Officer Rattigan testified that the door leading to the third floor was unlocked, and Nunley escorted him up to the third floor. R.R. at 19-20. While Officer Rattigan searched the third floor, Nunley told him: "If there's anything in here, I want it out." R.R. at 25. Officer Rattigan ultimately confiscated contraband and concluded his search. R.R. at 25.

¶ 6 During the suppression hearing, Nunley testified that Basking, a 20 year-old male, resided on the entire third floor of the residence. R.R. at 51-52. Nunley also testified to facts that she did not disclose to Officer Rattigan during the search. Particularly, Nunley stated that Basking paid her $100 in monthly rent and that they entered into an agreement that nobody in the house was permitted access to the third floor. R.R. at 51-52. Nunley further testified that Basking always kept the door leading to the third floor closed and that she hasn't been up to the third floor in years. R.R. at 53-54, 64. When asked on cross-examination why she didn't reveal this information to Officer Rattigan, Nunley stated that she was "still traumatized" by the incident. R.R. at 71. The trial court found Nunley's testimony credible.

¶ 7 Following the hearing, the trial court granted Basking's motion to suppress. The trial court concluded that Nunley did not have actual authority to consent to a search of the third floor because she and Basking entered into a landlord-tenant relationship and, consequently, Nunley did not share common authority over Basking's living quarters. Id. at 5. The trial court, however, found that under the totality of the circumstances, the police reasonably believed that Nunley possessed common authority to consent to a search of Basking's room. Id. at 7. Therefore, the trial court ruled that Officer Rattigan's search of the third floor was permissible under the Fourth Amendment. Id.

¶ 8 Nonetheless, in deciding Basking's suppression motion, the trial court noted that the protections afforded under the Fourth Amendment do not necessarily parallel those of Article I, Section 8. Id. (citing Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991)). Analyzing the factors enunciated in Edmunds to determine whether Article I, Section 8 provides greater rights than the Fourth Amendment in this case, the trial court pointed to the unique history of Article I, Section 8 and its heightened emphasis on the privacy rights of the individual. T.C.O., 1/25/08, at 9-15. The trial court also found the Edmunds decision persuasive; in that case, our Supreme Court held that under Article I, Section 8, the fruits of a search could not be validated on the ground that the police relied in good faith on a defective search warrant, even though the United States Supreme Court concluded that the fruits of such a search were admissible as an exception to the exclusionary rule for Fourth Amendment purposes. Id. at 15. Analogizing the holding in Edmunds to the instant case, the trial court found it "illogical" to permit an officer to rely on the apparent authority of a third party where the officer reasonably believes the consent is valid, when it is unconstitutional under Article I, Section 8 for an officer to rely, in good faith, on a defective search warrant that is demonstrated to be unsupported by probable cause. Id. at 15. In further support of its position, the trial court cited case law from our sister states that have concluded the apparent authority exception was incompatible with their states' respective constitutions. Id. at 16-20.

¶ 9 In addition, the trial court recognized our Supreme Court's plurality decision in Commonwealth v. Hughes, 836 A.2d 893 (Pa. 2003) (opinion announcing the judgment of the court), which adopted the apparent authority exception as a matter of state constitutional law, but noted that Hughes only applied to parolees, who have a diminished expectation of privacy. Id. at 6. In addressing policy considerations, the trial court stated that if the apparent authority doctrine were adopted in this Commonwealth and applied to ordinary citizens, it would permit someone who does not have actual authority to effectively waive another person's privacy rights by consenting to a search of that person's property. Id. at 21. The trial court also expressed its concern that the apparent authority doctrine, in allowing an officer to conduct a search based solely upon a reasonable belief, would provide the officers with the "negative incentive . . . to take [no] further measures to determine whether actual authority to consent [] exists, especially in cases where there is no exigency." Id. For these reasons, the trial court found that in the absence of exigent circumstances, application of the apparent authority doctrine to the citizens of this Commonwealth would frustrate the strong notion of privacy inherent in Article I, Section 8. Id. at 16. Accordingly, on May 17, 2007, the trial court granted Basking's motion to suppress, concluding that Officer Rattigan's search of the third floor was unconstitutional under Article I, Section 8.

¶ 10 The Commonwealth now appeals to this Court,*fn2 raising the following issues for review:

I. Whether the court erred in finding that Leslie Nunley did not have actual authority to consent to a police search of her residence, including the third floor of that residence, defendant/appellee's room, which was not separately secured?

II. Whether the court erred in concluding that the Pennsylvania Supreme Court would interpret the apparent authority exception more narrowly under Article I, Section 8 of the Pennsylvania Constitution than it has been interpreted under the Fourth Amendment?

III. Having concluded that the police reasonably believed Leslie Nunley had authority to consent to the search of the premises, whether the court erred in finding that the concept of apparent authority cannot be used to justify a search absent exigent circumstances?

Brief for Appellant at 4.

¶ 11 We employ the following standard of review when considering the Commonwealth's appeal from an order granting a motion to suppress:

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidenceisadmissible. In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealingthe decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Moreover, if the evidence when so viewed supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusions drawn from those findings.

Commonwealth v. Hill, 874 A.2d 1214, 1216 (Pa. Super. 2005) (citations omitted).

¶ 12In its first issue, the Commonwealth contends that the trial court erred in concluding that Nunley did not possess actual or common authority to consent to a search of the third floor. Brief for Appellant at 28-31. Specifically, the Commonwealth focuses on the fact that Nunley was Basking's mother and that she owned the residence. Id. at 28. The Commonwealth asserts that when Nunley became aware that there may be a gun in her house, her actions in directing and accompanying Officer Rattigan to the third floor can "only be characterized" as an exercise in actual authority. Id. The Commonwealth also points to Nunley's testimony stating that she feared for the safety of her other children and asks this Court to infer "that there was some likelihood" these children had access to the third floor. Id. Ultimately, the Commonwealth posits that in permitting the search of the third floor, Nunley chose to implement her superior authority over the premises, in order to assure the removal of contraband, and her conduct acted to "trump" Basking's rights of privacy in the third floor. Id. at 30. We disagree. The Commonwealth's argument ignores the trial court's factual findings and Nunley's testimony regarding Basking's exclusive use of the third floor.

¶ 13 The United States Supreme Court has held that a third party has actual authority to consent to a search if he/she "possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected." Matlock, 415 U.S. at 171. The Matlock Court described "common authority" as follows:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in ...


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