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HomeMy WebLinkAbout99-0708 criminalCOMMONWEALTH DONALD LEROY HAWKINS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0708 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., July 22, '1999:-- Defendant, Donald Leroy Hawkins, is charged with counts of unlawful possession of a small amount of marijuana? and unlawful possession of drug paraphernalia? He filed a motion to suppress evidence upon which a hearing was conducted on June 15, 1999. We find the following facts. On February 4, 1999, at approximately 10:00 a.m., Officer Thomas Kauffman of the Upper Alien Township police received a phone call from Stuart O'Dell. O'Dell was calling from his home and he told the officer that two black men were wandering in the area of his home and had just walked behind a nearby vacant house that was for rent. Officer Kauffman went to O'Dell's residence. O'Dell told him the two men had since walked to a house on a driveway which he pointed out. The officer then talked to a ' 35 Pa.C.S. § 780-113(a)(31). 2 35 Pa.C.S. § 780-113(a)(32). 99-0708 CRIMINAL TERM woman who lived across the street from the vacant rental property. She said that she had seen two black men come out from the rear of the vacant house. The officer knew Donald Hawkins, who was black, and he knew that he was living in his grandfather's house next to the driveway where O'Dell had last seen the two black men. From a description of the two men given by the two witnesses the officer believed that Hawkins was one of the men they had seen. Officer Kauffman made a radio check and discovered that there was an active summary warrant for the arrest of Donald Hawkins issued out of the City of Harrisburg. The officer also ran a check on the license of a car that was in the front of the Hawkins' house. The car was registered to Kevin Newman who the officer learned from another radio check had three active summary warrants for his arrest out of the City of Harrisburg. Officer Kauffman and another officer went to the Hawkins' house, knocked on the door, but no one answered. They returned to a patrol car and then saw two men in the driveway. One was Donald Hawkins who, when he saw the officers, ran away. Officer Kauffman detained the other man whom he then learned was Kevin Newman. The other officer caught Hawkins and brought him back to the scene. Officer Kauffman arrested Newman and Hawkins on the outstanding summary warrants. Both men were patted down and nothing was found on their persons. Newman told Officer Kauffman that he had been looking for a place to live and that Hawkins had shown him the vacant rental property. That made sense to the officer as to why they had been there. Officer Kauffman, however, smelled an odor of -2- 99-0708 CRIMINAL TERM marijuana about Hawkins and saw that his eyes were red which to him was an indication of his having smoked marijuana. Officer Kauffman and the other officer then went to the Hawkins' residence where George Hawkins, the grandfather of defendant, answered the door. Officer Kauffman told the grandfather that he had smelled marijuana on Hawkins. The grandfather told the officers that his grandson slept in an area of the basement rent-free, and he invited the officers in, saying that "1 do not want that stuff in my house." The grandfather took the officers to the basement where in the back half there was a bed, dresser, couch and woodstove. The area was not partitioned from the rest of the basement. The grandfather told the officers that this was the area where his grandson slept. He said that he [the grandfather] was "allowed in there." Officer Kauffman looked under the mattress where he found some drug paraphernalia and marijuana. Additional marijuana and paraphernalia were found above a ceiling tile. Some cigar wrappers from which the tobacco had been removed were found in two trash cans. The grandfather told the officers that the items they found belonged to neither him nor his wife. After seizing the property the officers took defendant and Kevin Newman for processing. They were then turned over to the Harrisburg Police on the outstanding summary warrants. Defendant seeks to suppress all of the evidence found by the officers on February 4, 1999, in the house where he was then living. Initially, citing Commonwealth v. Allen, 725 A.2d 737 (Pa. 1999), defendant argues that the information Officer Kauffman possessed regarding the reports of Stuart O'Dell and the -3- 99-0708 CRIMINAL TERM woman who lived across the street from the vacant rental property were insufficient to support an investigatory stop. Whether that position is correct, however, is of no legal import because the discovery of an outstanding summary warrant against defendant gave Officer Kauffman the authority to arrest him under Pa.R.Crim. P. 122, titled "Execution of Arrest Warrant," which provides: (a) A warrant of arrest may be executed at any place within the Commonwealth. (b) A warrant for arrest may be executed by a police officer. We agree with defendant that neither his arrest on the outstanding summary warrant nor the belief of Officer Kauffman that he had been using marijuana gave the police probable cause to believe that he had illegal drugs in his residence. Commonwealth v. Way, 342 Pa. Super. 341 (1985). That conclusion, however, does not resolve the issue of whether or not the seizure of the contraband and paraphernalia in the area in the basement of the home of the grandfather where defendant was living is admissible into evidence. In Commonwealth v. Gibbons, 379 Pa. Super. 285 (1988), the Superior Court of Pennsylvania stated: The law is well-settled that a warrantless search may be made with the voluntary consent of a third party who possesses 'common authority over or other sufficient relationship to the premises or effects sought to be inspected.' Commonwealth v. Lowery, 305 Pa. Super. 66, 73, 451 A.2d 245, 248 (1982) (citing United States v. Matlock, 415 U.S. 164, 168, 172, 94 S.Ct. 988, 991-92,993-94, 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, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit 99-0708 CRIMINAL TERM the common area to be searched. Id. 305 Pa. Super. at 73, 451 A.2d at 248 (quoting United States v. Matlock, 415 U.S. at 173, n. 7, 94 S.Ct. at 993-94, n. 7)(citations omitted). Our courts have held that a family member has the common authority to permit a search of the family home unless one family member has manifested and exhibited an intent to exclude others from certain areas of the home. Commonwealth v. Van Jordan, 310 Pa. Super. 516, 523,456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa. Super. at 73, 451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa. Super. 109, 115-16, 359 A.2d 811,814 (1976). Absent such an intention, where there exists joint access or control, there can be no reasonable or legitimate expectation of privacy and thus, a warrantless search may be made with the voluntary consent of a third party. Commonwealth v. Lowery, 305 Pa. Super. at 73, 451 A.2d at 248. In this analysis, we note that when the findings of the suppression court are sufficiently supported by the record, they will not be disturbed on appeal. Commonwealth v. Lowery, 305 Pa. Super. at 69, 451 A.2d at 246. Here, appellant mistakenly challenges the validity of the search on the basis that his status as an adult precludes his mother from giving her consent to a search of their house. The law is very clear, however, that the determination of whether a third party may consent to a warrantless search does not depend on the age of nonassenting party but on the 'common authority' or 'special relationship' shared by the cohabitants of the premises. See id., 305 Pa. Superior Ct. at 73, 451 A.2d at 248. In this case, our review of the record discloses that appellant resided with his mother and family in their home. See Motion to Suppress at 164, 176. When the police asked appellant's mother for her permission to search the premises, she voluntarily consented to the search. See id. at 165. Subsequently, at the suppression hearing, appellant neither claimed nor introduced evidence that his mother did not share dominion over the premises or that he had expressed an intent to exclude persons from his bedroom. See Motion to Suppress at 164-179. See also Commonwealth v. Van Jordan, 310 Pa. Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa. Super. at 73,451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa. Super. 109, 115-16, 359 A.2d 811,814 (1976). Moreover, this court has held that, 'a parent has the authority to consent to a search of his [or her] child's quarters in the parent's home', unless the child has manifested an expectation of privacy. Commonwealth v. Lowery, 305 Pa. Super. at 73, 451 A.2d at 247-48 (citing Commonwealth v. Reiland, 241 Pa. Super. at 115, 359 A.2d at -5- 99-0708 CRIMINAL TERM 814). Accordingly, because appellant's mother possessed 'common authority' over the premises and because appellant did not manifest an expectation of privacy, we conclude that the lower court did not err in finding that the consent search was not invalid on this ground. The facts in the case sub judice cannot be distinguished from those in Gibbons. There was nothing illegal about the officers talking to defendant's grandfather. The evidence discovered by the officers in the area of the basement of the grandfather's residence where defendant lived is admissible as a result of the consent of the grandfather for the police to search that area over which he had joint access and control. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of July, 1999, the motion of defendant to suppress evidence, IS DENIED. Jaime Keating, Esquire For the Commonwealth By t.he Cour~,~'~,'/ Edgar B. B~l~y,,~ Ellen Barry, Esquire For Defendant :saa -6-