Com. v. Reed

851 A.2d 958

COMMONWEALTH of Pennsylvania, Appellee, v. Shawn REED Appellant.

Superior Court of Pennsylvania.

Argued January 13, 2004.

Filed June 3, 2004.

MaryJean Glick, Lancaster, for appellant.

Matthew Grosh, Asst. Dist. Atty., Lancaster, for Com., appellee.

Before: STEVENS, PANELLA and OLSZEWSKI, JJ.

PANELLA, J.

¶ 1 Appellant Shawn Reed appeals from the judgment of sentence imposed by the Honorable David L. Ashworth on May 6, 2003. Following a non-jury trial, Appellant was found guilty of obstructing administration of law or other governmental function¹ and sentenced to time served to twelve months plus costs. Appellant filed a timely notice of appeal on June 4, 2003.

¶ 2 Appellant raises two issues on appeal. First, Appellant argues that his conviction is in direct violation of his federal and state guarantees of freedom from unreasonable searches. Second, Appellant contends that the trial court's finding of intent is not based upon competent evidence of record. Because of the import of the constitutional issues that have been raised, we will address each issue fully seriatim.

¶ 3 The facts involved in this case are essentially undisputed. On November 16, 2002, Officer Bret McFarland of the Lancaster City Bureau of Police received a call from Lancaster County Communications at approximately 2:06 a.m. N.T., 5/6/2003 at 9-10. The call center informed McFarland of a tip received from Connie McMullen in New Jersey regarding the possible location of her runaway stepdaughter. Id. at 10. Ms. McMullen believed that her stepdaughter, Nicole McMullen, was residing with her aunt, Bernice McMullen, at 58 North Prince Street in the second floor apartment. Id. Officer McFarland was given a description of Nicole and then proceeded to 58 North Prince Street. N.T., 5/6/2003 at 11.

¶ 4 Officer McFarland arrived at 58 North Prince Street at approximately 2:15 a.m. and observed a woman waiting at the outside door to the building. Id. The door was locked from the inside and required the assistance of a resident to open. Id. at 12. Officer McFarland learned that the woman was there to visit with a resident of the third floor and was waiting for him to come down and open the door. Id. at 11.

¶ 5 Shortly after Officer McFarland's arrival, Appellant walked down the stairs and opened the outside door. Id. at 12. Officer McFarland confirmed that Appellant was the third floor resident and proceeded to force his way into the building. Id. at 13. Appellant blocked Officer McFarland's entrance and asked the officer if he had a warrant. Id. Appellant further questioned Officer McFarland regarding his purpose at the building. Id. Officer McFarland responded that it was none of Appellant's business why he was there and said "just let me get by and do my job". Id. at 15.

¶ 6 Appellant continued to impede Officer McFarland's progress into the building and up the stairs to the second floor. Id. at 13. While ascending the stairs, Appellant leaned his weight on Officer McFarland. Id. at 38. McFarland "walked" Appellant up the stairs chest-to-chest with McFarland's arm creating space between them. Id. at 39. Once they reached the second floor landing, Officer McFarland pushed Appellant who responded by pushing back at the officer. Id. at 37. At this point, Officer McFarland decided to arrest Appellant with the intention of charging him with disorderly conduct. Id. at 42. After consulting with his sergeant, however, Officer McFarland decided to charge Appellant with obstructing administration of law. Id.

¶ 7 Appellant first contends that he cannot be convicted of obstructing administration of law as Officer McFarland was engaged in an illegal search at the time. Appellant argues that the Federal and Pennsylvania Constitutions' protections from unreasonable searches gave him the right to block McFarland's entry into the building. The primary purpose of both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution is to "protect citizens from unreasonable searches and seizures." In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). Furthermore, the right to exclude evidence pursuant to Article I, Section 8 of the Pennsylvania Constitution is more expansive than the right granted by the Fourth Amendment. Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.), appeal denied, 564 Pa. 731, 766 A.2d 1247 (2000).

¶ 8 To determine whether an area is protected from searches, we analyze whether the person asserting the right had a legitimate expectation of privacy in the area. Commonwealth v. Ferretti, 395 Pa.Super. 629, 577 A.2d 1375, 1379 (1990). (citation omitted). This determination is to be accomplished by an examination of the totality of the circumstances. Id. In support of his argument that he was privileged to obstruct Officer McFarland's entry under the United States Constitution, Appellant cites to U.S. v. Carriger, 541 F.2d 545 (6th Cir.1976).

¶ 9 In Carriger, the Sixth Circuit ruled that tenants have a protected privacy interest in common areas that are accessible only through a locked entrance. Specifically, the court held "[t]he officer's entry into this locked apartment building without permission and without a warrant of any kind was an illegal entry and violated appellant's Fourth Amendment rights." Carriger, 541 F.2d at 550. Carriger continues as valid precedent in the Sixth Circuit. See U.S. v. Heath, 259 F.3d 522 (6th Cir.2001). The Ninth Circuit has reached a similar conclusion on this issue. See U.S. v. Fluker, 543 F.2d 709 (9th Cir.1976).

¶ 10 However, the Third Circuit has expressly rejected Carriger and Fluker. In U.S. v. Acosta, 965 F.2d 1248, 1252 (3rd Cir.1992), the Third Circuit addressed the issue of a tenant's protected privacy interest in the common areas of an apartment building. The Third Circuit was faced with a record that indicated the common area in question "was easily accessible to tenants, visitors, solicitors, workmen, and other members of the public." Acosta, 965 F.2d at 1252. When it began its analysis of this factual scenario, the Third Circuit first examined the rule in the Second Circuit as set forth in U.S. v. Holland, 755 F.2d 253 (2d. Cir.1985), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985).

¶ 11 The defendant in Holland was arrested when he opened the outside door to a hallway shared with other apartments in the building. The Second Circuit held that the arrest did not occur within the defendant's protected zone of privacy, pursuant to three separate rationales. First, the Supreme Court cases which define the area protected from unreasonable searches consistently refer to invasions of living quarters. Second, pursuant to Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court reasoned that only when a defendant has the ability and right to exclude others from entrance to an internal area would a reasonable expectation of privacy arise. Finally, the court opined that a rule that extended an individual's zone of privacy to common areas would prevent police from protecting the tenants' actual residences. Holland, 755 F.2d at 255-256.

¶ 12 The Acosta court found itself "in agreement with the Second Circuit's analysis in Holland as applied to the facts [before it]". Acosta, 965 F.2d, at 1252. The Third Circuit recognized that two circuits had held that common areas were protected. Acosta, 965 F.2d at 1252 (citing Carriger, supra, and Fluker, supra ). However, the Acosta court found the Second Circuit's analysis in Holland most persuasive. As a result, the court held that "[o]n this record, defendants had no way to exclude anyone and, therefore, could not have reasonably expected their privacy to extend beyond their apartment door." Id. (citations omitted).

¶ 13 A similar conclusion was reached by this Court independently in Commonwealth v. Thomas, 698 A.2d 85 (Pa.Super.1997). In Thomas, a police officer used a fire escape to gain access to the rooftop of a building. On the roof was a free-standing apartment as well as a small garden. The officer observed marijuana plants in the garden and charged the occupant of the rooftop apartment with manufacture and possession of a controlled substance.

¶ 14 In Thomas the defendant argued that the officer's use of the fire escape violated his Fourth Amendment right against unreasonable searches. This Court, on appeal, affirmed the judgment of sentence, holding that a fire escape utilized by several apartments was not an area protected from unreasonable searches and seizures.

¶ 15 Appellant attempts to distinguish Thomas by arguing that "[a]ccess to the fire escape was not limited to the tenants of the building, however, as the fire escape was unlocked and open to the public." Appellant's Brief at 11. However, this Court specifically stated in Thomas that "the suppression court judge's finding that the fire escape was used on a daily basis for ingress and egress is not supported by the record." Although the record did not support a finding that the fire escape was routinely used by other tenants, we emphasized that the fire escape was an emergency route open to all occupants of the building: "the officer did not stray from the path that the residents of appellant's apartment or the adjacent building would have taken during an emergency." Thomas, 698 A.2d at 86. Accordingly, we read the Thomas opinion to hold that an area that was not routinely used by other tenants, but could have been used in an emergency by the tenants, was not protected.

¶ 16 The crucial distinction between protected and unprotected areas, as set forth in the above cited cases, is whether an unrelated person has unfettered access to the area.² If even one unrelated person has an unfettered right to access an area, the area is not protected in Pennsylvania from government searches and seizures.³ While we recognize that some foreign jurisdictions do not agree with this...