A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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A Panel of the Superior Court of Pennsylvania has decided the case ofCOMMONWEALTH of Pennsylvania v. Delano E. PEREL, Appellant, 2014 WL 7331025, 2014 PA Super 283, 704 WDA 2013 (Dec. 23, 2014), an appeal from a Judgment of Sentence of the Court of Common Pleas of Mercer County, Criminal Division, CP–43–CR–0000618–2011. The Judges were PANELLA, OLSON and WECHT, who wrote the Opinion, while Judge Olson dissented with an Opinion.
The facts were as follows:


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. 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,” 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.”


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.


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. The trial court, Judge, Christopher J. St. John, denied Perel’s motion to suppress.


With regard to Perel’s subjective expectation of privacy in the contents of his luggage and shaving bag, the key inquiry was whether Perel took normal precautions to maintain his privacy. 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. Moreover, Perel did not inform Smith of the contents of the bag. The girlfriend’s bedroom was not exposed to public view. Furthermore, the police opened Perel’s luggage and shaving kit and explored their contents. 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 were deserving of the most scrupulous protection from government invasion. Therefore, Perel had a reasonable expectation of privacy in his luggage and shaving kit.


Furthermore, 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. 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. 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, there was testimony that Smith denied having knowledge of the contents of Perel’s shaving kit. Thus, the search of Perel’s belongings cannot be justified based upon Smith’s actual authority to consent.


With respect to the Dissent’s view that the inevitable discovery doctrine saved this error, Judge Wecht wrote:


Stated simply, the inevitable discovery doctrine is not a substitute for the warrant requirement. Police must demonstrate that the evidence would have been discovered absent the police misconduct, not simply that they somehow could have lawfully discovered it. Instantly, the record is devoid of any suggestion that, absent Captain Jewell’s unconstitutional search of Perel’s shaving kit, the items would have been discovered. To hold otherwise, as the Dissent would do, would eradicate the need for police officers ever to obtain a constitutionally supported search warrant. Under the Dissent’s view, police only need to seize the item or search the premises and then invoke the inevitable discovery doctrine with the assertion that they “could have obtained a warrant.” The inevitable discovery doctrine does not operate in such a constitutionally impoverished manner.


Because Perel had a reasonable expectation of privacy in his luggage and shaving kit, and because Smith could not validly consent to a search of those items and it was unreasonable for the police to believe that she possessed the authority to do so, the trial court erred in concluding that Smith lawfully consented to the warrantless search of Perel’s private closed containers. Moreover, the search of Perel’s belongings did not fall within the narrow confines of the inevitable discovery doctrine.


Accordingly, the Court vacated Perel’s judgment of sentence, ordered that the evidence subject to Perel’s motion be suppressed, and remanded for a new trial.


Stanley Tyrone Booker of  Signature Hill Associates in New Castle represented the Appellant.




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