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Commonwealth v. Perel

Superior Court of Pennsylvania

December 23, 2014

DELANO E. PEREL, Appellant

Argued November 18, 2013

Appeal from the Judgment of Sentence of the Court of Common Pleas, Mercer County, Criminal Division, No.: CP-43-CR-0000618-2011. Before ST. JOHN, J.

Stanley T. Booker, New Castle, for appellant.

Cynthia A. Gilkey, Assistant District Attorney, West Middlesex, for Commonwealth, appellee.



Page 186


Delano Perel appeals the judgment of sentence entered on March 27, 2013. We vacate Perel's judgment of sentence, and we remand for additional proceedings consistent with this opinion.

On April 21, 2011, Officer Louis Squatrito of the Hermitage Police Department responded to a report of an armed robbery. When he arrived at the scene, Officer Squatrito found Darius Holcomb hiding in the woods behind an apartment building. According to Holcomb, he and his former cellmate, Perel, departed together for an overnight trip on that evening.

Page 187

While traveling together (with Perel driving and Holcomb in the passenger seat), Perel announced that he needed to stop at his girlfriend's apartment. Perel pulled into an apartment complex, shut off the engine, and pulled a small brown leather bag from underneath the driver's seat.

Perel told Holcomb to " run it," [1] and Holcomb observed a handgun protruding from the leather bag. After Holcomb handed Perel approximately $100, Perel exited the vehicle and walked into one of the apartments, taking the leather bag with him. Holcomb ran into a wooded area that was adjacent to the apartment complex and called the police. Before Officer Squatrito arrived at the scene, Holcomb saw Perel--now accompanied by a black female--drive away in a tan Chevrolet.

Chad Nych, another officer with the Hermitage Police Department, received a Mercer County 9-1-1 radio dispatch describing Perel, the unknown black female, and the tan Chevrolet. Officer Nych subsequently observed a tan Chevy Impala parked in front of the Sheetz convenience store on Route 18 in Hermitage. When Officer Nych approached the vehicle, he observed a black male matching Holcomb's description of Perel and a black female in the passenger seat. Officer Nych ordered Perel to exit the vehicle. Thereafter, Officer Nych searched Perel and discovered a bag of marijuana, currency, and a marijuana cigarette in Perel's pockets. Officer Nych then took Perel into custody.

Sergeant Donald Ott spoke with the female passenger, who he identified as Tony Smith, Perel's girlfriend. Sergeant Ott sought Smith's consent to search her apartment located at 1420 Parke Drive. Smith initially refused to consent to the search but later agreed. Smith signed a written consent form specifying that the police were searching for a black handgun, ammunition, and a " black or brown leather bag similar to a hygiene/shaving kit bag." Notes of Testimony Suppression (" N.T.S." ), 11/9/2011, at 48.

In the rear bedroom of Smith's apartment, officers observed a small brown leather bag/shaving kit on the foot of the bed, which was consistent with Holcomb's description. Upon opening the bag, Captain Paul Jewell discovered marijuana, a handgun, ammunition, and condoms. Captain Jewell showed these items to Smith, who denied having any knowledge of them. Captain Jewell also searched two pieces of luggage that were beside the shaving kit. Therein, he found men's clothing and a receipt with Perel's name on it.

As a result of these events, Officer Squatrito filed a criminal complaint charging Perel with robbery, persons not to possess a firearm, forgery, firearms not to be carried without a license, theft by unlawful taking, receiving stolen property, delivery of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia.[2] On October 14, 2011, Perel filed an omnibus pretrial motion to suppress evidence. Therein, Perel argued that the warrantless search of his shaving kit and luggage was unconstitutional because Smith lacked the authority to consent to the search of his personal effects. Omnibus Motion for Pre-trial Relief, 10/14/2011, at 3 (unnumbered). On November 9, 2011, following a hearing, the trial court denied Perel's motion to suppress by opinion and order.

Page 188

After the trial court, sua sponte, severed the persons not to possess a firearm count from the information, Perel proceeded to a jury trial on that charge alone on November 14, 2012. On November 16, 2012, the jury found Perel guilty of persons not to possess a firearm. On March 25, 2013, Perel pleaded guilty to possession with intent to deliver, and the Commonwealth nolle prossed the remaining charges. On March 25, 2013, the trial court sentenced Perel to five to ten years' imprisonment for persons not to possess a firearm with a consecutive term of one to five years' imprisonment for possession with the intent to deliver.

On April 23, 2013, Perel timely filed a notice of appeal. On May 1, 2013, the trial court ordered Perel to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Perel timely complied. On May 31, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Perel presents one issue for our consideration: " Did the trial court abuse its discretion in denying [Perel's] motion to suppress evidence where [Perel's] personal belongings were searched without a search warrant?" Brief for Perel at 4 (capitalization modified).

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).

" The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This is so because " Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Id. at 133-34 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). Thus, before a defendant may challenge a search or seizure on Fourth Amendment grounds, he or she must demonstrate a reasonable expectation of privacy in the place that was searched.

As articulated by Justice John Marshall Harlan in his oft-quoted concurrence in Katz v. United States, a person who challenges a search or seizure on Fourth Amendment grounds must demonstrate (1) that he or she had a subjective expectation of privacy, and (2) that his or her subjective expectation of privacy is one that society is prepared to recognize as reasonable and legitimate. 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

Page 189

With regard to Perel's subjective expectation of privacy in the contents of his luggage and shaving bag, it is well established that the key inquiry is whether Perel " took normal precautions to maintain his privacy." Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (explaining that an individual exhibits a subjective expectation of privacy if he or she sought to preserve something as private). Instantly, Perel placed his possessions in an opaque leather bag. He then zippered that bag closed and stored it in the " back bedroom" of his girlfriend's apartment (specifically " on the foot of the bed" ). N.T.S. at 49. Moreover, Perel did not inform Smith of the contents of the bag. Id. at 50.[3]

The United States Supreme Court has held that searches of closed containers ( i.e., personal luggage) intrude upon protected privacy interests as a matter of law. See New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (" [T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." (quoting United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). Hence, the search of Perel's luggage and shaving kit violated Perel's subjective expectation of privacy.

Turning to the second prong of the Katz test, Perel's subjective expectation of privacy must be one that society is prepared to recognize as reasonable. Katz, 389 U.S. at 361. No single factor determines the legitimacy of an individual's claim that a particular area should be free from warrantless government intrusion. Rakas, 439 U.S. at 152-53 (Powell, J., concurring). Our analysis may turn on factors such as (1) the intention of the Framers of the Fourth Amendment, Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); (2) the uses to which an individual has put a particular location, Jones v. United States, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and (3) society's understanding that certain areas deserve " the most scrupulous protection from government invasion." Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

The United States Supreme Court applied these principles in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), concluding that a Border Patrol agent's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment. Id. at 338-39. In that case, Bond, a passenger on a Greyhound bus, stored his green canvas bag in a storage compartment above his seat. When the bus stopped at a permanent border checkpoint, a Border Patrol agent physically squeezed and manipulated the contents of Bond's overhead bag. The agent felt a " brick-like" object in Bond's bag, which the agent later determined to be a " brick" of methamphetamine wrapped in duct tape. Id. at 336.

Page 190

The Supreme Court rejected the government's contention that Bond did not maintain a reasonable expectation of privacy in a container that he exposed to public view:

When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here.


We find nothing in the instant matter that materially distinguishes this case from the circumstances in Bond.[4] Perel stored his luggage and shaving kit in his girlfriend's bedroom along with his other belongings. This location is not any more " exposed to public view" than an overhead storage compartment on a Greyhound bus. Furthermore, the police opened Perel's luggage and shaving kit and explored their contents. Hence, the instant search was far more invasive than the agent's unconstitutional " physical manipulation" of Bond's canvas bag.

Indeed, the obvious function of an opaque zippered bag is to safeguard the privacy of the personal effects contained therein. See United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). (" Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects." (emphasis added)). An understanding that personal, private effects are commonly stored in purses, backpacks, luggage, and duffel bags can be gleaned from a casual stroll down any sidewalk. The contents of persons' closed containers are obscured from public view and generally are recognized as private. This expectation of privacy becomes even more robust when a person's private, closed container is within the home of a loved one. Perel's luggage and shaving kit, therefore, are deserving of " the most scrupulous protection from government invasion." Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

Perel's belongings were not openly visible, or even accessible, to the general public. The opaque containers clearly belonged to Perel. They were closed. They contained personal items, including men's clothing and condoms. It beggars belief to suggest that our society would deem it unreasonable to expect that these personal items will be kept private.[5] Perel's subjective expectation of privacy in the contents of his baggage, as evidenced by the totality of the circumstances, is one that society would recognize as reasonable.[6]

Page 191

Having concluded that the suppression record demonstrates that Perel had a reasonable expectation of privacy in his luggage and shaving kit, we now must address whether the warrantless search of Perel's luggage falls within the consent exception to the Fourth Amendment's warrant requirement.[7] The trial court ruled that it did, concluding that " [t]he search of [Perel's] brown leather bag . . . was lawful in that there were no restrictions on the scope of [Smith's] consent." Trial Court Opinion (" T.C.O." ), 11/10/2011, at 8 (unnumbered). Perel, on the other hand, contends that the scope of Smith's consent did not, and could not, extend to Perel's leather shaving kit and luggage because Smith did not have common authority, joint access, or mutual use of those items. Brief for Perel at 14. We agree.

It is well-settled that a homeowner who lacks access to, or control over, a guest's private closed containers also lacks the authority to consent to a search of them.

A privacy interest in a home itself need not be coextensive with a privacy interest in the contents or movements of everything situated inside the home. This has been recognized before in connection with third-party consent to searches. A homeowner's consent to a search of the home may not be effective consent to a search of a closed object inside the home. Consent to search a container or a place is effective only when given by one with " common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). " Common authority . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes . . . ." Id. at 171, n.7.

United States v. Karo, 468 U.S. 705, 725, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (O'Connor, J., concurring) (citations modified).

The critical inquiry is not whether Smith had the authority to consent to the search of her own apartment, but rather whether she had the actual authority, or the apparent authority, to consent to the search of Perel's closed containers stored therein. Matlock, 415 U.S. at 171. It is clear that she did not. The Commonwealth presented no evidence at the suppression hearing that Smith had mutual use of, joint access to, or control of Perel's baggage. To the contrary, Captain Jewell testified that Smith denied having knowledge of the contents of Perel's shaving kit. N.T.S. at 50. Thus, the search of Perel's belongings can not be justified based upon Smith's actual authority to consent.

Page 192

As stated, we also must consider the possibility that Smith had the apparent authority to consent to a search of Perel's luggage and shaving kit. The Supreme Court of the United States has held that a warrantless search is lawful when it is based upon the consent of a third party who the police reasonably believe has common authority over the items to be searched, but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Our own Supreme Court has described this " apparent authority exception" to the Fourth Amendment's warrant requirement as follows:

A third party with apparent authority over the area to be searched may provide police with consent to search. Third party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises. If the person asserting authority to consent did not have such authority, that mistake is constitutionally excusable if police reasonably believed the consenter had such authority and police acted on facts leading sensibly to their conclusions of probability.

Commonwealth v. Strader, 593 Pa. 421, 931 A.2d 630, 634 (Pa. 2007) (citations omitted).

In Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, 598 (Pa. Super. 1990), we elucidated the narrow confines of ...

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