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J. A13025/00 & A13026/00
2000 PA Super 253
COMMONWEALTH OF PENNSYLVANIA
: IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
VS
:
:
CHRISTOPHER BLACK,
:
Appellee
: No. 732 EDA 1999
Appeal from the Order entered January 27, 1999
In the Court of Common Pleas of Philadelphia
County, Criminal No. 9807-0086 ½
COMMONWEALTH OF PENNSYLVANIA
: IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
VS
::
VINCENT DIORIO,
:
Appellee
: No. 733 EDA 1999
Appeal from the Order entered January 27, 1999
In the Court of Common Pleas of Philadelphia
County, Criminal No. 9807-0086 2/2
BEFORE:
FORD ELLIOTT, MONTEMURO*, JJ. and CIRILLO, P.J.E.
OPINION BY CIRILLO, P.J.E.:
Filed: August 25, 2000
¶1
The Commonwealth of Pennsylvania appeals from an order granting a
suppression motion entered in the Court of Common Pleas of Philadelphia
County.1 We reverse.

1 The Commonwealth has complied with Pennsylvania Rule of Appellate
Procedure 311 (d):
In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially
handicap the prosecution.
Pa. R. A. P. 311 (d). See Commonwealth v. Dugger, 506 Pa. 537, 539, 486
A.2d 382,383 (1985) (holding an order suppressing evidence is appealable

J. A13025/00 & J. A13026/00
¶2
Appellees, Christopher Black and Vincent Diorio2, were charged with
knowing and intentional possession of a controlled substance and possession
with the intent to deliver a controlled substance. Black and Diorio each filed a
pre-trial motion to suppress the physical evidence, which was granted on
January 22, 1999. The Commonwealth appeals, claiming the trial court erred
when it granted Black and Diorio's motions to suppress.
¶3
On September 23, 1997, Philadelphia Police Officer William Jeitner of the
Narcotics Field Unit had a telephone conversation with Detective Payton of the
Los Angeles County Police Department regarding a Federal Express package
addressed to Barbara Barsh at 12516 Torrey Road, First Floor, Philadelphia,
Pennsylvania, 19154. Detective Payton informed Officer Jeitner that he had
received information from a reliable informant that the Federal Express
package, addressed to Barbara Barsh, contained cocaine. Detective Payton
also informed Officer Jeitner that the informant had provided prior information
which led to several arrests in the past. Moreover, Detective Payton informed

only when it is apparent from the record that the order terminates or
substantially handicaps the prosecution).
2 Pursuant to Pennsylvania Rule of Appellate Procedure 513, these appeals
have been consolidated. Rule 513 states in pertinent part:
[w]here there is more than one appeal from the same order, or
where the same question is involved in two or more appeals in
different cases, the appellate court may, in its discretion, order
them to be argued together in all particulars as if but a single
appeal. Appeals may be consolidated by stipulation of the parties
to the several appeals.
Pa.R.A.P. 513.

J. A13025/00 & J. A13026/00
Officer Jeitner that the Federal Express package had been intercepted in
California, opened without a properly issued search warrant, and was found to
contain numerous hand lotion containers with bags of cocaine stuffed inside of
the containers. The package was resealed and sent to Bob Brown of the
Federal Express Security office in Bristol, Pennsylvania.
¶4
Officer Jeitner and Officer Donna Doran met with Bob Brown in Bristol,
Pennsylvania. Officers Jeitner and Doran took possession of the Federal
Express package. Officer Richard Nicoletti of the Philadelphia Police Narcotics
Field Unit obtained search warrants for the package and the first floor
apartment. A search of the package was conducted at the Narcotics Field Unit,
which revealed that the package contained eight bottles of Suave hand lotion.
Four of the bottles were wrapped in gauze and surgical tape and contained a
white substance. The substance tested positive for methamphetamines. The
whereabouts and existence of Barbara Barsh could not be obtained.
¶5
Officer Jeitner arranged for Officer Doran to deliver the Federal Express
package to the first floor apartment. Officer Doran left the package between
the screen door and the front door of the apartment after she knocked on the
door and did not receive an answer. Officer Nicoletti maintained surveillance of
the property during this time. Officer Nicoletti did not see anyone enter or exit
the apartment until forty-five minutes later, when he observed Diorio enter the
apartment and take the parcel inside. Approximately thirty minutes later,
Officer Jeitner knocked on the front door of the apartment and announced that
police officers were present on the property and that he had a search warrant

J. A13025/00 & J. A13026/00
for the apartment. Again, Officer Jeitner made several knocks and
announcements, and when he did not hear any response from the occupants
inside, he forcibly entered the premises to execute the search warrant.
¶6
Upon entering the apartment, the Officers saw Black and Diorio seated
on a couch in the living room with a large glass table in front of them. Several
bags of cocaine were seized from the glass tabletop. The Federal Express
package was leaning against a wall between the door and the rear of the
couch. The search also resulted in the seizure of drugs, money, drug
paraphernalia, and items indicating Black's possessionary interest in the
property. Black and Diorio were charged with knowingly or intentionally
possessing a controlled substance, possessing a controlled substance with an
intent the intent to deliver it, possessing drug paraphernalia, and criminal
conspiracy. Black and Diorio filed motions to suppress which were granted by
the trial court. This appeal followed. The Commonwealth raises the following
issue for our consideration:
Did the lower court err in granting defendant's suppression motion
based on speculation that a package of contraband addressed to a
third party may have been improperly opened in California where
defendant, apart from having no standing to raise the issue, clearly
lacked any reasonable expectation of privacy in the package at the
time of the search?
Our standard of review in this case is well settled.
In reviewing an order granting a motion to suppress, an appellate
court may consider only the evidence of the defendant's witnesses
and so much of the Commonwealth's evidence that, read in the
context of the record as a whole, remains uncontradicted.
Furthermore, our scope of appellate review is limited primarily to
questions of law. We are bound by the suppression court's findings

J. A13025/00 & J. A13026/00
of fact if those findings are supported by the record. Factual
findings wholly lacking in evidence, however, may be rejected.
Commonwealth v. Torres, 632 A.2d 319, 320 (Pa. Super. 1993).
Commonwealth v. Blee, 695 A.2d 802 (Pa. Super. 1997).
¶7
The Commonwealth introduced and admitted into evidence the two
search warrants in question along with their respective affidavits of probable
cause. The Commonwealth asserts that Black and Diorio lack standing to
challenge the validity of the search warrants and that the search warrant
issued for the Federal Express package was lawful. In its opinion, the trial
court held Black and Diorio:
[h]ave automatic standing to challenge the legality of the search
warrants and the admissibility of any evidence derived therefrom.
Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974);
Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1979). If
possession of the seized evidence is itself an essential element of
the offense [when] the defendant is charged, the government is
precluded from denying that the Defendant has the requisite
possessory interest to challenge the admission of the evidence (at
the suppression hearing). Knowles, supra at 76.
¶8
In addition to standing, however, we find that a defendant must also
demonstrate a reasonable expectation of privacy in the property searched.
Following Knowles, supra, this court held in Commonwealth v. Rodriquez,
559 A.2d 947 (Pa. Super. 1988), that a person must demonstrate a reasonable
expectation of privacy to establish standing. In Rodriquez, this court stated:
In Sell, our Supreme Court interpreted Article I, section 8 of the
Pennsylvania Constitution as giving a broader scope of protection
with regard to standing to challenge a search and seizure than the
United States Supreme Court has construed in the fourth
amendment. N1 The Sell Court elected to continue the "automatic
standing" rule it first adopted in Commonwealth v. Knowles,
459 Pa. 70, 327 A.2d 19 (1974). Here, appellee was charged with

J. A13025/00 & J. A13026/00
one count each of knowing or intentionally possessing a controlled
substance, manufacture with intent to manufacture or deliver a
controlled substance, and criminal conspiracy. Because the first
two charges are possessory offenses, appellee initially has standing
to challenge the search and seizure, however, as a matter of law,
we find appellee abandoned the property seized, she has not
standing to challenge the police search of the house and
consequent seizure of the narcotics.
N1 See e.g. Rakas v. Illinois, 439 U.S. 128, 99
S.CT. 421, 58 L.Ed.2d 387 (1978) and Mancus v.
DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d
1154 (1968) (reevaluating the "automatic standing"
rule applied to alleged Fourth Amendment violations in
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725,
4 L.Ed.2d 697 (1960), which held the mere charge of a
defendant with a possessory offense conferred standing
to assert an alleged Fourth Amendment violation).
Rodriquez, supra at 948.
Furthermore, the Rodriquez court held:
It is well-established that "no one has standing to complain of a
search and seizure of property that he has voluntarily abandoned."
Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216,
1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221,
226-28, 486 A.2d 987, 990 (1985). "The test for abandonment is
whether the complaining party could retain a reasonable
expectation of privacy in the property allegedly abandoned."
Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69
91978); Cihylik, supra, 337 Pa.Superior Ct. at 226-28, 486 A.2d
at 990. These principles were well-stated by the Supreme Court in
Sell: [P]ersonal possessions remain constitutionally protected . . .
until their owner meaningfully abdicates his control, ownership or
possessory interest therein." Id., 504 Pa. at 67, 470 A.2d at 469.
Rodriquez, supra at 949.
¶9
The Pennsylvania Supreme Court addressed the issue of placing the
burden upon the defendant seeking suppression to establish a legitimate
expectation of privacy as an essential element of his case in Commonwealth
v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). The Pennsylvania Supreme

J. A13025/00 & J. A13026/00
Court has determined that standing requires a defendant to demonstrate one
of the following elements:
(1) his presence on the premises at the time of the search and
seizure; (2) a possessory interest in the evidence improperly
seized; (3) that the offense charged includes as an essential
element of the prosecution's case, the element of possession at the
time of the contested search and seizure; or (4) a proprietary or
possessory interest in the searched premises.
Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998)
(citing Commonwealth v. Peterkin, 511 Pa. 299, 309 513 A.2d
373, 378 (1986)).
In Hawkins, supra, the Pennsylvania Supreme Court opined:
While this Court has stated that automatic standing maintains
continued vitality under Article 1, Section 8 of the Pennsylvania
Constitution, see Commonwealth v. Sell, 504 Pa. 46, 66-68, 470
A.2d 457, 468-69 (1983); see also Peterson, 535 Pa. at 497, 636
A.2d at 617, these decisions have recognized that the essential
effect is to entitle a defendant to an adjudication of the merits of a
suppression motion. See id. at 497, 636 A.2d at 617. In order
to prevail on such a motion, however, a defendant is
required to separately demonstrate a personal privacy
interest in the area searched or effects seized, and that such
interest was "actual, societally sanctioned as reasonable,
and justifiable." Peterson, 535 at 497, 636 A.2d at 617. Such
a legitimate expectation of privacy is absent where an
owner or possessor meaningfully abdicates his control,
ownership or possessory interest. Sell, 504 at 67, 470 A.2d at
469. . . . [A] person must maintain the privacy of his possession in
such a fashion that his expectations of freedom from intrusion are
recognized as reasonable.
Hawkins, supra at 267 (emphasis added). The Pennsylvania Supreme Court
further held that "[i]n order to obtain standing to challenge the legality of the
search, [a defendant] must establish that he, rather than [another], was the
victim of an invasion of privacy." Hawkins, supra at 269 (emphasis added).

J. A13025/00 & J. A13026/00
¶10 Most recently, the Pennsylvania Supreme Court addressed the issue of
constitutionally protected privacy interests in Commonwealth v. Johnson,
556 Pa. 216, 234-35, 727 A.2d 1089, 1098 (1999), holding that:
An individual whose constitutionally protected rights are not
violated cannot claim any injury by a warrantless police seizure.
[FN7] In order to claim a constitutionally protected right in an item
seized, the defendant must show: (1) that he had a subjective
expectation of privacy; and (2) that the expectation is one that
society is prepared to recognize as reasonable and legitimate. See
Commonwealth v. Gordon, 546 Pa. 65, 71, 683 A.2d 253, 256
(1996). We consider the totality of the circumstances and carefully
weigh the societal interests involved when determining the
legitimacy of such an expectation. Id. at 71, 683 A.2d at 257.
FN7. We have divided this principle into two concepts:
(1) standing to litigate a suppression claim; and (2) the
existence of a reasonable and legitimate expectation of
privacy in the thing seized. See Commonwealth v.
Peterson, 535 Pa. 492, 497, 636 A.2d 615 617
(1993).
Johnson, supra at 234-35, 727 A.2d at 1098.
¶11 We agree with the trial court and find that Black and Diorio have
standing to challenge the legality of the search warrants and the admissibility
of any evidence derived therefrom. However, unlike the trial court, which
granted standing to the appellees because of their possessory interest in the
evidence seized, we find that the appellees must be accorded standing due to
their presence on the premises at the time of the search and seizure.
Hawkins, supra.
¶12 Despite this finding, we are compelled to reverse the suppression court's
order which failed to look beyond Knowles and apply the second prong of the
Johnson test that requires the defendant to establish the existence of a

J. A13025/00 & J. A13026/00
reasonable and legitimate expectation of privacy in the item seized. Johnson,
supra at 235, 727 A.2d at 1098. Neither Black nor Diorio established a
privacy interest in the Federal Express package addressed to Barbara Barsh.
Neither Black nor Diorio alleged that they were Barbara Barsh or that Barbara
Barsh was an alias used by either of them. Furthermore, at the suppression
hearing, both Black and Diorio attempted to disassociate themselves from the
package. Black testified that he had no recollection of the package at all, while
Diorio admitted that he was a short term visitor to the apartment where the
package was sent, and actually "kicked" it aside on his way through the door.
Because Black and Diorio attempted to disassociate themselves from the
package, they each failed to demonstrate how their respective privacy interests
had been violated under either the Fourth Amendment of the United States
Constitution or Article 1, Section 8 of the Pennsylvania Constitution.
¶13 With regard to the appellees' Fourth Amendment prosecutions, the trial
court held:
the parcel in question is first class mail and is free from inspection
by (state and federal actors), except in the manner provided by the
4th Amendment. "Letters and sealed packages of this kind in the
mail are as fully guarded from examination and inspection, except
as to their outward form and weight, as if they were retained by
parties forwarding them in their own domiciles. The Constitutional
guarantee of the right of the people to be secure and their papers
against unreasonable searches and seizures extends to their
papers, thus closed against inspection, where ever they may be.
Whilst in the mail, they can only be opened and examined under
like warrant, issued upon similar open affirmation, particularly
describing the thing to be seized, as is required when papers are
subject to search in one's own household. No law of [C]ongress
can place in the hands of officials connected with the postal service
any authority to invade the secrecy of letters and such sealed

J. A13025/00 & J. A13026/00
packages in the mail; and all regulations as to mail matters of this
time must be in subordination to the great principle embodied in
the 4th Amendment of the Constitution."
Ex.parte Jackson, 96 U.S. 727, 733 (1878).
¶14 We find that Ex.parte Jackson is inapplicable in the present case.
Appellees and the trial court all base the positions they advance on an
assumption that the package addressed to Barbara Barsh was opened
unlawfully by California authorities. Therefore, the argument continues, the
information conveyed by California authorities to the Pennsylvania police could
not properly be used as probable cause to support a search warrant in
Pennsylvania. Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221
(1998), which holds that only foreign searches conducted lawfully under the
precepts of the particular foreign jurisdiction may supply probable cause for a
Pennsylvania warrant, is cited in support.
¶15 It is necessary to point out that in its remarks following the suppression
hearing, the trial court considered it to be unclear whether the evidence on
which the warrants were based had been obtained "legally or illegally." In its
opinion, however, the court states unequivocally that the search was illegal
based on Ex parte Jackson. No reference of any kind is made to California
law.
¶16 Significantly, the trial court also neglects to mention that Fourth
Amendment protections are personal, and inure to the protection of persons
not things. Minnesota v. Carter, 525 U.S. 83 (1998). As a predicate to
demonstrating the violation of Fourth Amendment rights, that is, to establish

J. A13025/00 & J. A13026/00
standing, California law, like federal law, requires a defendant to show that he
has a legitimate expectation of privacy in the invaded property or place.
Witkin, B.E., 7 Summary of California Law § 410, 9th Ed. (1996). See also
People v. Badgett, 41 Cal.Rptr.2d 635, 895 P.2d 877, 10 Cal.4d 330 (1995).
A disclaimer of interest, such as Appellees here have made, or the absence of
evidence of ownership, possession or control of the item searched will preclude
a challenge to the legality of the search. People v. Dees, 221 Cal.App. 3d
588, 270 Cal.Rptr. 554 (1990). Thus, in California, given their disavowal of all
knowledge of package, contents or addressee, Appellees would not have been
permitted to argue the legality of the search conducted there. Accordingly, the
trial court erred in presuming the status of the California search.
¶17 In Sanchez, supra, which involved a dog sniff of a sealed package in
California, the Pennsylvania Supreme Court declined to take a position on
whether the appellant had a reasonable expectation of privacy in the package.
Such a decision was never necessary as that search procedure required no
probable cause or warrant under California law; the appellant's challenge to its
validity thus would be a priori foreclosed there. Accordingly, the principle of
law it enunciates is inapplicable here, but nonetheless instructive because of
the parallel it presents. Moreover, the package in Sanchez was actually
addressed to the appellant, so that whatever determination might be made of
Sanchez' privacy interest in a package addressed to him, the foundational
question of whether Appellees herein would have had standing to question the

J. A13025/00 & J. A13026/00
California search, given their complete lack of connection with the package at
that point, must be answered in the negative.
¶18 Although Pennsylvania approaches the standing issue differently than
does California, the result remains the same. As previously state, an
automatic right is conferred on a defendant to adjudicate the merits of a
suppression motion. "In order to prevail on such a motion, however, a
defendant is required to separately demonstrate a personal privacy interest in
the area searched or the effects seized, and that such interest is `actual,
societally sanctioned as reasonable and justifiable.'" Hawkins, supra at 81,
718 A.2d at 267 (quoting Peterson, supra at 497, 636 A.2d at 617)). The
rationale underlying the finding that Appellees had no privacy interest in the
package in Pennsylvania serves equally to support the same conclusion
regarding the package while it remained in California. In this case, the
package was addressed to a person whose identity was never ascertained, and
of whom both Appellees denied knowledge. Lacking such interest here, none
could be demonstrated there. Thus the argument that the Pennsylvania search
warrant was invalid because it was unsupported by legitimately obtained
probable cause cannot be sustained.
¶19 In addition, we note that sealed packages deserve constitutional
protection under appropriate circumstances, however, courts "entertain the
presumption that the addressee is the true and sole owner until the opposite is
shown." 5 W. LaFave, Search and Seizure § 11.3 (f) at 205 3d ed. 1996)
(collecting cases). Here, Black and Diorio did not present evidence that they

J. A13025/00 & J. A13026/00
sent the package or were the person to whom it was addressed; therefore,
Black and Diorio cannot assert a claim for invasion of privacy.
¶20 Moreover, it is well settled law that:
"[I]n order to qualify as a `person aggrieved by an unlawful search
and seizure' one must have been a victim of a search or seizure,
one against whom the search was directed, as distinguished from
one who claims prejudice only through the use of evidence
gathered as a consequence of a search or seizure directed at
someone else." See also Rawlings v. Kentucky, 448 U.S. 98,
104, 100 S. Ct. 2556, 2561, 65 L.Ed. 2d 633 (1980): Rakas v.
Illinois, 439 U.S. 128 at 133-34, 99 S.Ct. 421 at 425, 58 L.Ed. 2d
387.
Hawkins, supra at 268. By the same token, we find that a person does not
have a privacy interest in mail that has not been either sent or received by
that person. Because neither Black nor Diorio asserted an ownership interest
in the package addressed to Barbara Barsh, and because neither can assert the
rights of Barbara Barsh, we find that they did not have a privacy interest in the
package. Therefore, Black and Diorio's motions to suppress should have been
denied. Blee, supra.
¶21 Order reversed. Jurisdiction relinquished.
¶22 Ford Elliott, J. files a Concurring Opinion.

J. A13025/00 & A13026/00
2000 PA Super 253
COMMONWEALTH OF PENNSYLVANIA, :
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant
::
v.
: No. 732 Eastern District Appeal 1999
:
CHRISTOPHER BLACK
:
Appeal from the Order Entered January 27, 1999
in the Court of Common Pleas of Philadelphia County
Criminal Division, No. 9807-0086 1/2
COMMONWEALTH OF PENNSYLVANIA, :
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant
:
:
v.
: No. 733 Eastern District Appeal 1999
:
VINCENT DIORIO
:
Appeal from the Order Entered January 27, 1999
in the Court of Common Pleas of Philadelphia County
Criminal Division, No. 9807-0086 1/2
BEFORE: FORD ELLIOTT, MONTEMURO,* JJ. AND CIRILLO, P.J.E.
CONCURRING OPINION BY FORD ELLIOTT, J.:
¶1
I concur in the result reached by the majority. Although I agree that
the trial court should be reversed, I arrive at this conclusion by traveling
down a very different path of reasoning. I would find that appellees possess
both standing and a reasonable expectation of privacy to pursue their
claims.

J. A13025/00 & J. A13026/00
¶2
I begin by reviewing the procedural posture of this case because it is
pivotal to my analysis. Appellees filed motions to suppress evidence seized
during a search of Black's apartment. The police conducted the search
pursuant to an anticipatory search warrant,3 which provided that the
apartment could be searched only if a package searched pursuant to warrant
no. 87969 contained cocaine or another controlled substance, and if, after
being delivered to Black's address, the package was taken inside by the
occupants. (R.R. at 6a.)
¶3
The affidavit of probable cause supporting warrant no. 87969 stated
that a confidential informant in California, who had in the past proven
reliable in providing California police officers with tips leading to arrests, had
apprised California Detective Peyton that the package, which was being
shipped from California to a "Barbara Barsh" at Black's address in
Pennsylvania, contained cocaine. (Id. at 4a.) The affidavit further stated
that the California police intercepted the package in California and found that
it did, in fact, contain cocaine, and also provided that a Pennsylvania search
of DMV and other records revealed that "Barbara Barsh" was probably a
fictitious name. (Id.)
¶4
As a result of this affidavit, the Pennsylvania police obtained a warrant
to search the package, which revealed the presence of a methamphetamine.

3 Our supreme court recently ratified the use of anticipatory search warrants in
Commonwealth v. Glass, No. 43 M.D. Appeal Docket 1999, 2000 Pa. Lexis 1523
(Pa., June 20, 2000).

J. A13025/00 & J. A13026/00
(R.R. at 24a-25a.) Officer Donna Doran then delivered the package to
Black's apartment, leaving it between the front and screen doors. After
Diorio arrived at the apartment and moved the package inside, the police
officers, acting pursuant to the anticipatory warrant, entered the apartment
by force, having received no response to their "knock and announce." The
police found Black and Diorio sitting in the living room with various
controlled substances and drug paraphernalia on the table in front of them
and on their persons. The package was leaning against a wall near the front
door. (Id. at 31a-33a.)
¶5
Following their arrest, Black and Diorio filed motions to suppress,
challenging the search of the apartment based on the four corners of the two
search warrants and also based on the police officers' alleged failure to
"knock and announce" before entering the apartment. (Id. at 8a-9a.) The
challenge was grounded in the Fourth and Fourteenth Amendments to the
U.S. Constitution. (Id.) The suppression court, having concluded that the
search warrants were invalid, did not address the legality of the execution of
the anticipatory warrant. (Trial court opinion, 10/13/99 at 7-8.)
¶6
In writing its opinion, the suppression court framed the issue as
"whether evidence obtained in a warrantless search of a mail parcel in a
foreign jurisdiction may provide probable cause for the issuance of a search

J. A13025/00 & J. A13026/00
warrant in this Commonwealth."4 (Trial court opinion, 10/13/99 at 4.) The
court concluded that both the search of the package in Pennsylvania and the
subsequent search of the apartment were the fruits of the poisonous tree:
the warrantless search of the package in California. (Id. at 7, citing Wong
Sun v. United States, 371 U.S. 471 (1963).)5 The suppression court then
concluded that the illegal warrantless search of the package in California
could not provide the probable cause to support the Pennsylvania warrants.
(Id.)
¶7
Procedurally, this case therefore involves a challenge to the affidavit of
probable cause supporting a search of the package in Pennsylvania:
according to appellees, if that search was not supported by probable cause,
then the anticipatory warrant flowing from that search was not supported by
probable cause; therefore, the search of the apartment was illegal.
¶8
My disagreement with the majority's resolution of the question before
us is based in part on its application of Commonwealth v. Sell, 504 Pa. 46,
470 A.2d 456 (1979), to the facts of this case. In Sell, supra, our supreme
court reaffirmed the automatic standing rule as enunciated by the

4 At the suppression hearing, the Pennsylvania police officer who spoke with the
California police officer testified he assumed the California police had a warrant to
search the package based on his prior frequent contacts with the California police,
but he admitted he did not ask. (R.R. at 50a.) Because the Commonwealth bore
the burden of producing evidence at the suppression hearing, Pa.R.Crim.P. 323(h),
the trial court properly could have found that the search in California was conducted
without a warrant.
5 Wong Sun is a case decided under federal law.

J. A13025/00 & J. A13026/00
U.S. Supreme Court in Jones v. United States, 362 U.S. 257 (1960). Put
simply, Jones conferred automatic standing on defendants charged with
possessory offenses on the strength of the charge itself. The gravamen of
the automatic standing rule was that charging a defendant with possession
of contraband and precluding him from challenging the police conduct which
led to the seizure unless he claimed ownership put the protections of the
Fourth and Fifth Amendments in conflict. The Sell court was called upon to
re-examine the automatic standing rule because the Jones decision had
been repudiated by the Supreme Court in favor of a threshold "reasonable
expectation of privacy" test for a Fourth Amendment violation. Rakas v.
Illinois, 439 U.S. 128 (1978). As the Sell court observed:
The Rakas Court shifted the focus from `standing' to
the merits of the underlying claim. The Rakas Court
held that the scope of the interest protected by the
Fourth Amendment is to be determined by `whether
the person who claims the protection of the
Amendment has a legitimate expectation of privacy
in the invaded place.' Rakas, supra 439 U.S. at
143, 99 S.Ct. at 430. The Court further declared
that, to be considered `legitimate,' an expectation of
privacy must have a source outside of the Fourth
Amendment, either by reference to concepts of real
or personal property law or to understandings that
are recognized and permitted by society. One of the
main rights attaching to property is the right to
exclude others.
Id. at 143 n. 12, 99 S.Ct. at 430 n. 12.
Sell, supra at , 470 at 468. Thus, the Sell court concluded:
We decline to undermine the clear language of
Article I, section 8 by making the Fourth

J. A13025/00 & J. A13026/00
Amendment's amorphous `legitimate expectation of
privacy' standard a part of our state guarantee
against unreasonable searches and seizures. We do
so not only because we find the United States
Supreme Court's analytical distinction between
`standing' and `threshold substantive question,' see
Rakas, supra 439 U.S. at 139 n.7, 99 S.Ct. at 428
n.7, unhelpful to our interpretation of Article I,
section 8's protection, but also because we believe
the United States Supreme Court's current use of the
`legitimate expectation of privacy' concept needlessly
detracts from the critical element of unreasonable
governmental intrusion.
. . . .
Sell, supra at , 470 A.2d at 468 (citation omitted) (emphasis added).
¶9
In Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993),
our supreme court revisited the question of automatic standing in a case
involving the warrantless search and seizure of drugs from an abandoned
building. The court determined that under Sell, supra, Peterson had
automatic standing to challenge the search; however, he lacked a
reasonable expectation of privacy in the premises of an abandoned building.
As the Peterson court stated:
However, having had his standing acknowledged,
appellant is then required to establish that the
challenge he has without question legitimately raised
is itself legitimate. In order to do so, he must
demonstrate that he held such a privacy interest
which was actual, societally sanctioned as
reasonable, and justifiable in the place invaded that
the warrantless entry of the police violated his right
under the Constitution of this Commonwealth,
Article
1, Section
8, to be `secure .
.
. against
unreasonable searches and seizures.'

J. A13025/00 & J. A13026/00
Id. at , 636 A.2d at 617 (citation omitted). In short, Peterson's
automatic standing did not relieve him of his evidentiary burden on the
merits of his claim: that the warrantless entry into the storefront by law
enforcement officials violated a reasonable and legitimate expectation of
privacy.6
¶10 The majority agrees that Sell is still good law in this Commonwealth.
What concerns me about the majority's rationale, however, is that I believe
it mirrors that of the Rakas court and not that of Sell. The majority,
referencing the Peterson analysis and stating the appellees have automatic
standing, then proceeds to couple appellees' reasonable expectation of
privacy with a requirement of some ownership or possessory interest in the
package seized in the apartment. To wit: Appellees cannot have a
reasonable expectation of privacy in something which they claim does not

6 I would be less than candid if I did not concede that supreme court authority since
and including Peterson has blurred the line between the Pennsylvania and federal
standing rules. Peterson emphasized that although a defendant may have
standing to file a motion to suppress, he must still establish a personal privacy
interest in the place or thing seized as a condition precedent to any challenge of the
reasonableness of the search and seizure. In effect, defendants charged with
possessory offenses may file suppression motions challenging the seizure of the
drugs they are charged with possessing; however, before they can succeed on the
merits, they are required to claim an ownership interest in the drugs in order to
establish a reasonable expectation of privacy in them. This would appear to be
exactly what the majority has done and precisely what the Sell court rejected in its
establishment of automatic standing. Based on the apparent confusion in this area
and what appears to be a movement closer to the federal standard through recent
cases, our supreme court may wish to re-examine the continuing vitality of the
concept of automatic standing.

J. A13025/00 & J. A13026/00
belong to them.7 This, I respectfully suggest, eliminates the very purpose of
automatic standing. Rather, the reasonable expectation of privacy analysis
would more appropriately be addressed to whether the police conduct was
unreasonable because it violated a legitimate expectation of privacy in
Black's apartment.
¶11 To this end, I would analyze the case as follows: Both Pennsylvania
searches at issue in this case are governed by Pennsylvania law, which, as
indicated, confers automatic standing on a defendant accused of a
possessory offense to move to suppress evidence introduced against him.
Peterson, supra; Sell, supra. Thus, under the authority of Sell, appellees
had automatic standing to challenge the search of Black's apartment and

7 The majority also relies upon statements made by appellees at the time of the
search denying ownership of the package to decide that appellees abandoned the
package. If I had to reach this issue, I would find the better view expressed by
Professor LaFave.
If a defendant claims standing derived from his
interest in the premises searched, he will not prevail if it
appears that he had abandoned the premises prior to the
time the search being objected to occurred. But under
the modern expectation-of-privacy approach the
abandonment question must be examined in terms of
reasonable expectation flowing from conduct rather than
in a technical, property sense. In any event,
abandonment must be distinguished from a mere
disclaimer of a property interest made to the police prior
to the search, which under the better view does not
defeat standing.
Wayne R. LaFave et al., Criminal Procedure § 9.1, at 463 (2d ed. 1992) (emphasis
added). Moreover, the whole purpose of automatic standing on a possessory
charge is that a defendant does not have to claim ownership of the contraband. I
believe we would be hard pressed to find very many defendants who claim
ownership of illegal drugs during a search.

J. A13025/00 & J. A13026/00
seizure of drugs found therein because both appellees were found on the
premises and both were charged with possession of drugs found in the
apartment, including the package. Under Peterson's analysis, appellees
have also established a reasonable expectation of privacy in the place where
the evidence was seized because it is a private residence. Therefore we
must go forward and address appellees' claim that the warrant to search the
apartment was invalid because the affidavit of probable cause supporting the
warrant included evidence illegally obtained during the California search.
¶12 At a suppression hearing, a defendant who has standing and who has
articulated a reasonable expectation of privacy, thereby indicating the
necessity for a warrant, can always challenge the veracity of information
contained in the affidavit of probable cause supporting the warrant.
Commonwealth v. Miller, 513 Pa. 118, , 518 A.2d 1187, 1192 (1986);
Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973);
Commonwealth v. Mejia-Arias, 734 A.2d 870, 874 (Pa.Super. 1999).
"`[T]he right to challenge the truthfulness of recitals in a warrant follows
from the command of Aguilar-Spinelli8 that the magistrate make a
"detached and objective determination" of probable cause.'" Miller,

8 Spinelli v. U.S. 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
The Supreme Court subsequently abandoned the Aguilar-Spinelli test in
Illinois v. Gates, 462 U.S. 213 (1983); however, the Gates test still requires that
information contained in the affidavit be reliable under a totality of the
circumstances.

J. A13025/00 & J. A13026/00
supra at , 518 A.2d at 1192, quoting Hall, supra at , 302 A.2d at
344-345. When so challenged, the Commonwealth then bears the burden of
producing evidence establishing the validity of the warrant by showing that
the evidence underlying the affidavit of probable cause is reliable.
Commonwealth v. Ryan, 407 A.2d 1345, 1348 (Pa.Super. 1979), citing
Hall, supra. See also Pa.R.Crim.P. 323(h).
¶13 In this case, appellees challenged the affidavit of probable cause as
defective because the evidence relied upon was allegedly obtained in an
unconstitutional manner, not because the affidavit contained unreliable
information. As the majority correctly notes, Fourth Amendment
protections, which are the only protections appellees invoked, are, however,
personal and can only be asserted by one who has suffered the violation.
(Majority opinion at 10, citing Minnesota v. Carter, 525 U.S. 83 (1998).)
Additionally, Fourth Amendment violations do not necessarily render
evidence unreliable merely because it was obtained as a result of the
violation. Wayne R. LaFave, et al., Criminal Procedure § 9.1, at 461
(2nd ed. 1992).
¶14 Professor LaFave explains the distinction between evidence seized
illegally based on a constitutional violation and evidence that is unreliable as
follows. A person may confess to a crime and implicate another in that
crime as a result of a violation of the protections afforded by Miranda v.
Arizona, 384 U.S. 436 (1966). The confession would therefore have been

J. A13025/00 & J. A13026/00
obtained illegally. The person implicated by the confession, who is subjected
to an arrest or search based on the confession, will, however, lack standing
to challenge the legality of the confession, obtained in violation of another's
constitutional rights. The person implicated by the confession may,
however, raise his own Fourth Amendment claim that the warrant to arrest
or search him is invalid because based on unreliable evidence if the police
obtained the confession by using physically or psychologically coercive
tactics. LaFave, Criminal Procedure § 9.1, at 461. See also id., § 9.1, at
462 (discussing Wong Sun, supra, in which the police unlawfully entered
Toy's premises and illegally arrested him, after which Toy claimed his
innocence but implicated Yee. The police then entered Yee's premises and
found drugs there, which Yee said he obtained from Toy and Wong Sun. The
Supreme Court found that Toy had standing to object to the seizure of
evidence from Yee because the illegal entry into Toy's premises, followed by
his arrest, led to the seizure of evidence from Yee. The Court found,
however, that Wong Sun did not have standing because he could not object
to an illegal search of another's premises).
¶15 According to the majority, California follows federal law on the issue of
standing. (Majority opinion at 10-11 (citations omitted).) Furthermore, our
supreme court recently held in a case such as this that the law of the foreign
jurisdiction applies to determine the legality of a search. Commonwealth
v. Sanchez, 552 Pa. 570, , 716 A.2d 1221, 1223 (1998). Under

J. A13025/00 & J. A13026/00
California and federal law, Barbara Barsh was the only person with standing
to raise the legality of the California search of a package addressed to
Barbara Barsh. If there is a standing question presented in this case,
therefore, it is that under California law, appellees do not have standing to
raise a violation of Barbara Barsh's constitutional rights based on a search
that occurred in California. This is distinct from appellees' standing to
challenge the conduct of the Philadelphia police in searching Black's
Philadelphia apartment and seizing evidence, including the package,
therefrom.
¶16 The trial court found, however, that in addition to attacking the
truthfulness of the facts recited in an affidavit, our supreme court has also
allowed a defendant to attack the legality of the search that led to the
evidence supporting the affidavit of probable cause. See Sanchez, supra
at , 716 A.2d at 1223 ("The result of a canine sniff constitutes admissible
evidence in both California and Pennsylvania, and can be used to support a
search warrant in Pennsylvania so long as the sniff was conducted
legally[]") (emphasis added); Commonwealth v. Bennett, 369 A.2d 493,
494 (Pa.Super. 1976) ("the use in this Commonwealth of information
secured through a valid, legal, properly authorized wiretap in a foreign
jurisdiction is not in contravention of the Pennsylvania anti-wiretapping
statutes [which would not allow such a wiretap], and . . . the evidence
seized in Pennsylvania under such a warrant is admissible.[]").

J. A13025/00 & J. A13026/00
¶17 The issue of standing to challenge the legality of the foreign
jurisdiction's search did not, however, arise in Sanchez, supra, Bennett,
supra, or Commonwealth v. Corbo, 440 A.2d 1213 (Pa.Super. 1982), the
cases upon which the Sanchez court relied. In Sanchez, supra, the
package searched in California was addressed to one of the defendants.
Sanchez, supra at , 716 A.2d at 1223 (appellant Sanchez was the
person to whom the package was addressed). In Bennett, supra, the
wiretap was conducted in New Jersey but included telephone calls received
from and made to Bennett's home in Pennsylvania. Bennett, 369 A.2d at
493. Finally, the Corbo court did not address the legality of the wiretap at
issue in that case because the parties did not argue its illegality. Corbo,
440 A.2d at 1214.
¶18 Furthermore, the supreme court in Sanchez, supra, specifically
limited its review solely to the conflict of laws question as to whether
Pennsylvania or California law applied in evaluating the legality of a canine
sniff. The canine sniff of the package in California was used to support the
warrant to search the package in Pennsylvania. The court decided that "if
the courts of a sister state determine that a canine sniff is not a search in
that state, the propriety of a sniff initiated by that state's officers and
conducted within that state's borders must be evaluated under the law of
that state." Id. at , 716 A.2d at 1225.

J. A13025/00 & J. A13026/00
¶19 In remanding for further suppression proceedings, the Sanchez court
specifically expressed no opinion "on whether appellants [Sanchez, the
addressee of the package, and his two co-defendants who were present in
the apartment at the time the search was conducted] had any reasonable
expectation of privacy in the package sitting in a California Federal Express
office." Id. at , 716 A.2d at 1225 n.4. Sanchez cannot be relied upon
for any other proposition than its narrow holding, and therefore is
inapplicable to this case.
¶20 In conclusion, I would reverse the trial court because of its incorrect
reliance on Sanchez to determine that the warrants issued in Pennsylvania
were invalid because the search of the package in California was illegal. To
the extent the majority finds that these appellees lacked standing to
challenge the legality of that search, I would therefore agree. For me,
however, it is beyond peradventure that appellees possessed standing and a
reasonable expectation of privacy in the apartment. This is sufficient to
allow a testing of the probable cause to secure the warrants, and it is on the
basis of this test that appellees' claim must fail.
¶21 I therefore respectfully concur in the result reached by the majority.