Grant of suppression motion is affirmed where the state carries burden of proof and put on nothing whatsoever, trying to put a burden on the defendant to at least go forward. That’s not state law. Commonwealth v. Enimpah, 2014 Pa. LEXIS 3466 (December 29, 2014):
Does a motion to suppress evidence demand proof by the accused of a reasonable expectation of privacy in the area in which the evidence is found before the Commonwealth’s burden of production is triggered? Here, the Commonwealth refused to present any evidence at appellee’s suppression hearing, claiming its obligation was not in force until appellee met this “threshold” burden. The trial court accordingly suppressed the evidence; the Superior Court affirmed. We affirm that decision and reiterate that which should now be clear: “In all cases, the burden of production is [] upon the Commonwealth.” Pa.R.Crim.P. 581 cmt.
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Generally, to have standing to pursue a suppression motion under Pa.R.Crim.P. 581, the defendant’s own constitutional rights must have been infringed. However, it is well settled that a defendant charged with a possessory offense in this Commonwealth has “automatic standing” because “the charge itself alleges an interest sufficient to support a [] claim [under Article I, § 8].” Commonwealth v. Sell, 470 A.2d 457, 468 (Pa. 1983) (citation and internal quotation marks omitted). This rule entitles a defendant to a review of the merits of his suppression motion without a preliminary showing of ownership or possession in the premises or items seized, Commonwealth v. Peterson, 636 A.2d 615, 617 (Pa. 1993), and as noted above, the Commonwealth does not challenge appellee’s standing. In addition to standing, though, a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable. Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (citation omitted).
While cursorily similar, standing and privacy interest are different concepts serving different functions. Standing is a legal interest that “empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government’s evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Id., at 266 (citations omitted). It ensures a defendant is asserting a constitutional right of his own. See id., at 269 (citations omitted) (noting this Court’s refusal to recognize vicarious assertions of constitutional rights). The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated. See Commonwealth v. White, 327 A.2d 40, 42 (Pa. 1974). In essence, while a defendant’s standing dictates when a claim under Article I, § 8 may be brought, his privacy interest controls whether the claim will succeed — once a defendant has shown standing, “[h]e must, in short, having brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises.” Peterson, at 618 (citation omitted).
As noted supra, the Commonwealth relies on the Superior Court’s decision in Boulware to support its contention that the defendant’s burden to establish his privacy interest temporally precedes its burden of production. It maintains the result here must be the same as the situation is “exactly like” that in Boulware. Commonwealth’s Brief, at 21. This argument is without merit, and we of course are not bound by precedent from a panel of the Superior Court. In Boulware, the defendant was charged with robbery and filed a motion to suppress evidence, which included a sweatshirt seized from his home. At the suppression hearing, he presented no evidence, and had no automatic standing as robbery was not a possessory crime. The Commonwealth presented no evidence pertaining to his arrest or seizure of the sweatshirt — accordingly, the trial court suppressed the evidence, and the Superior Court reversed, noting, inter alia, the defendant had not shown standing.
The Commonwealth is correct that the Boulware panel opined that a defendant must prove his privacy interest before the Commonwealth’s burden of production is triggered — for the reasons discussed infra, that holding is disapproved. Regardless, the error was harmless, as the defendant was not entitled to reach the merits of his suppression claim because he failed to establish standing. Thus, this case is not “exactly like” or analogous to Boulware. Moreover, Boulware preceded our decision in Millner,1 after which the Superior Court recognized, “Whether [a] defendant has a legitimate expectation of privacy is a component of the merits analysis of the suppression motion made upon evaluation of the evidence presented by the Commonwealth and the defendant.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc) (citation omitted).
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The Commonwealth contends the Millner Court’s characterization of the burden as “preliminary” signifies it must precede the presentation of other evidence. See id., at 686, 689 (referring to “defendant’s preliminary burden” (citations omitted)). At first blush, without proper context, the word “preliminary” might support the Commonwealth’s position. See id., at 692 (noting that where there was no evidence establishing defendant’s privacy interest, “there was no need for the Commonwealth to establish the lawfulness of the police entry into the vehicle and the seizure of the firearm, and there was no basis upon which the lower courts could properly order its suppression” (citation omitted)); Hawkins, at 268 n.3 (“[O]ur cases place the burden squarely upon the defendant seeking suppression to establish a legitimate expectation of privacy as an essential element of his case[.]”); Peterson, at 618 (“Without such expectation of privacy, police entry into the store front would have constituted no intrusion, and the exigent circumstances which are posited to justify police action need not be advanced.”).
However, “preliminary” in context refers to analytical order, not a temporal order of proof. Privacy expectations are “preliminary” in the sense that their absence renders all that follows irrelevant. Indeed, in all of these cases, the Commonwealth presented evidence sufficient to allow disposition of the defendant’s claim — in each case, the Commonwealth’s evidence showed the defendant lacked any protected privacy interest, and the defendant failed to effectively rebut that evidence. We were not dealing with the peculiar situation in which the Commonwealth refused to call a single witness. Rather, each case dealt with the court’s post-hearing analysis of a claim’s merits and the significance of a defendant’s privacy interest in conducting that inquiry.4 None of these cases involved the order in which evidence is presented, or the shifting of burdens, and one should not read them as commenting on those issues.
Unlike these cases, there was no evidence presented whatsoever — here, neither party called a single witness. Consequently, the court was forced to decide the motion based solely on which party bore the burden of production, the burden of “going forward with the evidence,” which, as the Superior Court noted, are basically synonymous terms. The allocation of that burden is clear — the Commonwealth must prove the constitutional rights of the accused were not violated by the search. The allegation is that unlawful detention led to the search, but if the evidence shows there was no expectation of privacy in the area searched, the prosecution has met its burden and need not go further. The lawfulness of the detention becomes irrelevant, as constitutional error cannot inure to the benefit of the expectation-less accused. To overcome that result, the accused has the burden of showing such an expectation did exist. If the accused does so, the search is again at issue, and the prosecution must prove its constitutionality.
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While we reject the Commonwealth’s interpretation of the “preliminary” nature of this burden, it is worth noting that in analyzing the merits of a suppression motion, the trial court may, indeed, treat the defendant’s privacy interest as a “threshold” or “preliminary” matter. That is to say, if the evidence shows there was no privacy interest, the Commonwealth need prove no more; in terms of the court’s review, it need go no further if it finds the defendant has not proven a reasonable expectation of privacy. However, as it relates to the parties’ presentation of evidence, our cases and the Rules of Criminal Procedure make clear that the Commonwealth has the burden of production, to give the court evidence allowing that conclusion. Once it places the issue before the court, as a basis for denying suppression, the defendant may prove the contrary.6 If that proof is found to meet defendant’s burden, then the search itself may be examined with the burden on the prosecution to show it was not unconstitutional.
