504 Pa. 46 (1983) 470 A.2d 457

COMMONWEALTH of Pennsylvania, Appellee,
v.
Larry SELL, Appellant.

Supreme Court of Pennsylvania.

Argued October 27, 1983. Decided December 30, 1983.

*47 C. Steven Miller, Allentown, for appellant.

Robert L. Steinberg, Asst. Dist. Atty., for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION OF THE COURT

NIX, Justice.

In this appeal we have agreed to decide whether, under Article I, section 8 of the Pennsylvania Constitution, which guarantees the citizens of this Commonwealth protection against unreasonable governmental searches and seizures, *48 a defendant accused of a possessory crime will continue to have "automatic standing" to challenge the admissibility of evidence alleged to be the fruit of an illegal search and seizure. The United States Supreme Court has abolished "automatic standing" under the Fourth Amendment to the federal Constitution. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In interpreting Article I, section 8, therefore, we must decide whether to retain the "automatic standing" principle as a matter of state constitutional law, or to embrace the reasoning and conclusions of the United States Supreme Court and eliminate that concept.

I.

On December 11, 1978 the Allentown Police Department executed a search warrant at an amusement arcade known as Games Galore located in the city of Allentown. The items set forth in the search warrant included firearms stolen in a recent burglary. As a result of the search, the police retrieved a number of firearms. These firearms were located on open shelves beneath the counter in the arcade. It was later established that this area was one to which all of the employees had access.

Appellant, who was a partner in the business, was not present at the time that the search was conducted.^[1] Subsequent to the search appellant was arrested and charged with the crimes of receiving stolen property and criminal conspiracy. The firearms recovered during the search formed the basis for the charge of receiving stolen property. Appellant, through his counsel in a pre-trial motion, sought to suppress the use of the fruits derived from the search, contending that the search warrant was defective. The court of common pleas determined that appellant had "automatic standing" to assert the illegality of the search and, further concluding that the warrant was defective *49 because the reliability of the informant had not been properly established, suppressed the seized evidence. The Superior Court, 288 Pa.Super. 371, 432 A.2d 206, disagreed and held that appellant did not have standing. That court concluded that the concept of "automatic" standing had been overruled and was no longer viable and further that the appellant was unable to establish "actual" standing. We permitted review and are now being called upon to determine whether appellant was entitled to "automatic standing" under Article I, Section 8, of the Pennsylvania Constitution.

In undertaking our interpretation of that section of the state constitution, we find guidance in the admonitions of Mr. Justice Brennan of the United States Supreme Court:

[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.

Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977).

Accordingly, we shall begin our discussion by analyzing the federal case law in the area of Fourth Amendment standing.

II

It is appropriate to begin by tracing the historical development of the concept of Fourth Amendment^[2] standing. *50 The requirement that a criminal defendant have standing to maintain a motion to suppress evidence alleged to have been obtained in violation of the Fourth Amendment's proscription of unreasonable searches and seizures was developed by the federal courts in response to the United States Supreme Court's decision in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The obvious intent of the standing requirement, which, from its inception, was more stringent than the rules generally employed to determine standing, see Scott, Standing in the Supreme Court-A Functional Analysis, 86 Harv.L.Rev. 645 (1973) (an analysis of general standing), was to limit the applicability of the exclusionary rule announced in Weeks.^[3]See, e.g., Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471 (1952); Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings and the Reasonable Expectation of Privacy, 31 Case W.Res.L.Rev. 656 (1981); Comment, 55 Mich.L.Rev. 567 (1957). Justification for imposing a standing requirement was most often found in the prevailing view that Fourth Amendment rights are personal rights which may not be vicariously asserted. See, e.g., Grainger v. United States, 158 F.2d 236 (4th Cir.1946); Ingram v. United States, 113 F.2d 966 (9th Cir.1940); Lewis v. United States, 92 F.2d 952 (10th Cir. 1937); Mello v. United States, 66 F.2d 135 (3d Cir.1933); Brown v. United States, 61 F.2d 363 (8th Cir.1932); Shore v. United States, 60 U.S.App.D.C. 137, 49 F.2d 519, cert. denied, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469 (1931); In *51 Re Dooley, 48 F.2d 121 (2d Cir.1931); Coon v. United States, 36 F.2d 164 (10th Cir.1929). Thus, standing to maintain a motion to suppress was sustained only where the search or seizure sought to be challenged was claimed to have violated the defendant's own Fourth Amendment rights. See, e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498 (D.C.Cir.1950), aff'd., 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Ingram v. United States, supra; United States v. Seeman, 115 F.2d 371 (2d Cir.1940); Cravens v. United States, 62 F.2d 261 (8th Cir.1932), cert. denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933); United States v. DeVasto, 52 F.2d 26 (2d Cir.), cert. denied, 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573 (1931); Simmons v. United States, 18 F.2d 85 (8th Cir.1927); Graham v. United States, 15 F.2d 740 (8th Cir.1926), cert. denied sub nom. O'Fallon v. United States, 274 U.S. 743, 47 S.Ct. 587, 71 L.Ed. 1321 (1927).

The federal courts' early Fourth Amendment standing tests, known collectively as the "trespass doctrine", were based solely on the relative strength of the defendant's possessory interest in the items seized or the property searched. See White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 33 (1970); Edwards, Standing to Suppress Unreasonably Seized Evidence, supra; Note, Standing Up for Fourth Amendment Rights: Salvucci, Rawlings, and the Reasonable Expectation of Privacy, supra. In essence, these rules found that the "personal" requirement was satisfied by a showing of a property or possessory right in the object seized or the place searched. Accordingly, the federal courts of appeals generally required an affirmative claim of ownership or possession of the seized property or a substantial possessory interest in the premises searched to establish Fourth Amendment standing. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); see generally Annot., 4 L.Ed.2d 1999 (1960); Annot., 96 L.Ed. 66 (1952).

As the term "trespass doctrine" implies, the federal courts relied on the common law of property in determining the question of standing:

*52 They have denied standing to "guests" and "invitees" (e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 218 F.2d 47, 48; Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 384; In Re Nassetta, 125 F.2d 924 [2nd Cir.1942]; Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234), and employees, who though in "control" or "occupancy" lacked "possession" (e.g., Connolly v. Medalie, 58 F.2d 629, 630 [2nd Cir.1932]; United States v. Conoscente, 63 F.2d 811 [2nd Cir.1933]). The necessary quantum of interest has been distinguished as being, variously, "ownership in or right to possession of the premises" (e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48 [72 S.Ct. 93, 96 L.Ed. 59]), the interest of a "lessee or licensee" (United States v. De Bousi, 32 F.2d 902 [D.C.Mass.]), or of one with "dominion" (McMillan v. United States, 26 F.2d 58, 60 [10th Cir.1928]; Steeber v. United States, 198 F.2d 615, 617 [10th Cir. 1952].)

Jones v. United States, supra 362 U.S. at 265-266, 80 S.Ct. at 733.

The requirement of a showing of ownership or possession of the property seized created a dilemma for defendants accused of crimes of which possession is itself an element. Judge Learned Hand articulated the position of such defendants in Connolly v. Medalie, 58 F.2d 629 (2d Cir.1932):

Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.

Id. at 630 (emphasis added).

Under the "trespass doctrine's" formulation of standing, therefore, a defendant charged with a possessory crime who sought to suppress seized evidence was obligated to *53 testify as to his ownership or possession of the seized property, risking the possibility of subsequent use of such admissions by the prosecution to obtain a conviction. The essence of the dilemma is a counterposition of Fourth Amendment protection against the Fifth Amendment's privilege against self-incrimination. The interrelationship of those two amendments was alluded to by Justice Bradley in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.2d 746 (1886):

[T]he "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment.

Id. at 633, 6 S.Ct. at 533.

These questions relating to the efficacy of the "trespass doctrine" and the Judge Hand "dilemma" were first squarely addressed by the United States Supreme Court in 1960 in Jones v. United States, supra. Prior to that time, the law had evolved through lower federal court decisions.^[4]

In Jones, the defendant, charged with drug offenses, had been denied standing to object to the search of an apartment in which he was present as an invitee and in which narcotics were found. The government had challenged his standing on the grounds that he "alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an `invitee or guest'". Id. 362 U.S. at 259, 80 S.Ct. at 730. After noting the lower federal courts' requirement that a defendant allege ownership or possession of the seized property or a substantial possessory *54 interest in the premises searched, the Jones Court pointed out the anomalous consequences of applying traditional standing doctrine in cases such as the one before it:

Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding, but also with the encouragement that he perjure himself if he seeks to establish "standing" while maintaining a defense to the charge of possession.

Id. at 261-262, 80 S.Ct. at 731.

The Jones Court rejected the inevitability of Judge Hand's "dilemma," concluding that the charge of possession itself "eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized. . . ." Id. at 263, 80 S.Ct. at 732. The Court reasoned that to hold to the contrary would permit the government to benefit from contradictory positions in obtaining a conviction:

Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. *55 The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception. . . .

Id. at 263-264, 80 S.Ct. at 732.

Thus Jones developed a rule, known as "automatic standing", that the mere charge of a defendant with a possessory offense conferred standing to assert an alleged Fourth Amendment violation. See, e.g., United States v. Colacurcio, 499 F.2d 1401 (9th Cir.1974); United States v. Hearn, 496 F.2d 236 (6th Cir.1974), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974); United States v. Smith, 495 F.2d 668 (10th Cir.1974); United States v. Moody, 485 F.2d 531 (3d Cir.1973); United States v. Pui Kan Lam, 483 F.2d 1202 (2nd Cir.1973); United States v. Price, 447 F.2d 23 (2nd Cir.1971), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971).

In an equally important development the Jones Court found as a second ground for the defendant's Fourth Amendment standing the mere fact that he was lawfully on the premises. In doing so the Court rejected earlier requirements of property ownership:

[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . Distinctions such as those between "lessee," "licensee," "invitee" and "guest," often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.

Id. 362 U.S. at 266, 80 S.Ct. at 733.

Instead, the court expressed the view that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are *56 proposed to be used against him." Id. at 267, 80 S.Ct. at 734.^[5]

The Jones decision represents the high-water mark of access in the context of capacity to challenge an asserted Fourth Amendment violation. Defendants charged with possessory offenses were provided "automatic" standing on the strength of the charge itself. Even where actual proof of standing was required it could be satisfied by the very liberal test of showing that the defendant was legitimately on the premises where the search occurred.^[6]

III.

The concept of a "legitimate expectation of privacy," ultimately employed by the United States Supreme Court to circumscribe Fourth Amendment protection and to render the standing inquiry ineffectual under the resulting Fourth *57 Amendment doctrine, was first articulated, ironically, in a decision which extended the reach of the Fourth Amendment to encompass remote electronic eavesdropping.^[7] In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which did not address standing, the Supreme Court was faced with the limitations of the "trespass" doctrine in determining whether a search within the meaning of the Fourth Amendment had occurred when the defendant's end of a telephone conversation, held in a closed telephone booth, was electronically overheard and recorded by government officials. Reasoning that technological advances in the art of surveillance outmoded the requirement of physical penetration, see, e.g., Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), the Supreme Court there held that the government's activities in electronically listening to and recording a defendant's words, without penetration of a structure, constituted a "search and seizure" which violated the privacy upon which the caller justifiably relied. The *58 Court declined to frame the issue as whether the telephone booth was a "constitutionally protected area." Rather, the Court looked to the caller's expectations.^[8]

This holding was immensely significant in the area of electronic surveillance, because it provided Fourth Amendment coverage in an area where protection was previously not afforded. However, in what proved to be an even more far-reaching consequence, Justice Harlan, in a concurring opinion in Katz, first began the articulation of the "reasonable expectation of privacy" concept, and suggested its applicability beyond merely electronic surveillance cases.

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."

Katz v. United States, supra at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), which followed Katz, Justice Harlan, writing for six members of the Court, replaced the Jones "legitimately on the premises" test with his "reasonable expectation of privacy" rule.^[9] Implicit in the DeForte decision was that the two tests were not inconsistent.

*59 A qualitative change in the development of the Harlan test occurred in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).^[10] The Rakas Court radically altered both the focus of the inquiry into the capacity to invoke Fourth Amendment protection and the scope of that protection itself. After expressly rejecting the defendants' theory that they had standing because they were the "target" of the investigation, Justice Rehnquist proceeded to reevaluate the standing requirements set forth in Jones. He concluded that the type of standing requirements discussed in Jones are more properly subsumed under substantive Fourth Amendment doctrine. Justice Rehnquist specifically rejected the "legitimately on the premises" test as a test for the measurement of Fourth Amendment rights. 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 *60 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.

The impact of the Rakas Court's pronouncements upon Fourth Amendment jurisprudence cannot be minimized. Whereas that Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," U.S. Const.Amend. IV, an interest in the property searched or objects seized, or one's legitimate presence in the searched place, have become mere factors in determining whether a violation of the Fourth Amendment has occurred at all. Thus the Fourth Amendment protects only those persons who can demonstrate, after the fact, a "legitimate expectation of privacy" within the context of a particular search and seizure. Absent such a showing, a warrantless governmental intrusion, however blatant, is not "unreasonable". Thus, the focus has shifted from the unreasonable governmental intrusion to a showing of the exclusivity of the defendant's right of privacy. Justice White, writing for four members of the Court in the dissent in Rakas, persuasively argued that the majority's test was divorced from the purpose of the Fourth Amendment:

The distinctions the Court would draw are based on relationships between private parties, but the Fourth Amendment is concerned with the relationship of one of those parties to the government.

Id. at 167-168, 99 S.Ct. at 443-444 (White, J., dissenting).

The Rakas "legitimate expectation of privacy" concept was subsequently employed by the United States Supreme Court to abolish the other aspect of Jones, "automatic standing," in Salvucci v. United States, supra.^[11] In Salvucci, the Court held that "defendants charged with crimes *61 of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated". Id. 448 U.S. at 85, 100 S.Ct. at 2549. The test offered to determine when this personal requirement has been met was "whether [they] had an expectation of privacy in the area searched." Id. at 93, 100 S.Ct. at 2553. Whether the defendants had a possessory interest was no longer controlling.^[12]

On the same day the opinion in Salvucci was filed, the Supreme Court, again speaking through Justice Rehnquist, further refined its Rakas standard and the manner in which it is to be applied in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).^[13] In Rawlings, it became clear that the right to assert Fourth Amendment violations *62 was to be arrived at after the application of a "totality of the circumstances" test.^[14] In rejecting the petitioner's contention that his claim of ownership of seized drugs entitled him to challenge the search regardless of his expectation of privacy, the Court contrasted the nature of the appropriate judicial inquiry before and after Rakas:

Had petitioner placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given "standing" in such a case to challenge a "search" that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner.

Id. at 106, 100 S.Ct. at 2562.

Thus after Rakas, Salvucci, and Rawlings the ability to prove a "legitimate expectation of privacy" by the "totality of the circumstances" is the sole determinant of the scope of protection afforded under the Fourth Amendment to the United States Constitution. The United States Supreme Court has chosen to limit the availability of relief by significantly narrowing the substantive scope of the protection provided by the Fourth Amendment. See Slobogin, Capacity to Contest a Search and Seizure: the Passing of Old Rule and Some Suggestions for New Ones, 18 Am.Crim.L. Rev. 387 (1981). Critical to the enjoyment of the protection is the demonstration of the exclusivity of the control of the defendant and the diminution of the concern as to unlawful and unreasonable governmental intrusion.

*63 IV.

We turn now to an interpretation of Article I, section 8 of the Pennsylvania Constitution. Preliminarily, we note that constitutional protection against unreasonable searches and seizures existed in Pennsylvania more than a decade before the adoption of the federal Constitution, and fifteen years prior to the promulgation of the Fourth Amendment. Clause 10 of the Pennsylvania Constitution of 1776 afforded such a guarantee. Our present Constitution, in section 8 of Article I, the Declaration of Rights, states:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.

While minimum federal constitutional guarantees are "equally applicable to the [analogous] state constitutional provision," see, e.g., Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183,