A favorable cases for the defense this year is in the area of warrantless home searches in Commonwealth v. Arnold, 2007 PA Super 248, 932 A.2d 143 (Pa. Super. 2007).

In Arnold, the police responded to a noise complaint from residents of the lower level of an apartment building. When the police were finished speaking with the complainants, they walked upstairs through a common area of the building and approached a door that was distinct from the downstairs apartment. One of the officers knocked and rang the doorbell, but nobody answered. The officer opened the door and walked in an apartment and walked down a flight of stairs.

The officer observed the defendant, Arnold, who was a casual visitor to the apartment, pass a marijuana pipe to another person. The officer arrested them and charged Arnold with possession of a small amount of marijuana and possession of drug paraphernalia.

After losing a motion to suppress evidence in the trial court, that is, to prevent the government from using the evidence against him, based on a violation of rights to be free from unreasonable searches and seizures, he was convicted of both charges.

The Superior Court reversed the trial court and concluded that the drug evidence should have been suppressed. The panel was comprised of Ford Elliot, P.J., Lally-Green and Johnson, J.J., with Johnson, J., writing the opinion of the Court and Lally-Green, J., dissenting. The majority began by citing Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (Pa. 1994), which reiterated that warrantless searches of a home are presumptively unreasonable, and absent probable cause and exigent circumstances, a search is prohibited under the Fourth Amendment. Citing Roland and Commonwealth v. Demshock, 2004 PA Super 263, 854 A.2d 553 (Pa. Super. 2004), as controlling authority, the court held that because the police had no warrant and probable cause and exigent circumstances, the officer had no good reason to be in the premises, and because the officer was not in a lawful vantage point, seizure of evidence could not be justified as being in plain view. In addition, an alleged noise violation, a mere summary offense, cannot amount to exigent circumstances.

Judge Lally-Green’s dissent agreed with the Commonwealth, concluding that the defendant has the initial burden in showing that he has a personal right to privacy in the place to be searched or the items seized by the government. The majority opinion responded to Commonwealth’s contention that the motion to suppress was properly granted because the defendant made no showing that he did not have a personal right to privacy in the apartment where he was a casual visitor and noted, “[t]he police officers did not search the apartment but instead searched Arnold’s person to find the contraband” and that the police should not be permitted to “provide retroactive justifications and randomly invade homes on the pretense that any person found to be a non-resident after the fact could be searched”.

Therefore, this case supports the view that casual visitors to a home have a reasonable expectation of privacy in their activities conducted therein.