PA: State bears initial burden of showing lack of REP that def must meet

In Pennsylvania, the state has to attempt to show a lack of reasonable expectation of privacy before it can argue a lack of standing. Here, it acquiesced in standing until after it lost the suppression argument, and that’s too late. Commonwealth v. Skipper, 2022 PA Super 108, 2022 Pa. Super. LEXIS 259 (June 9, 2022):

Importantly, a challenge to a defendant’s expectation of privacy is woven into the complex burden shifting involved in suppression hearings. See Enimpah, 630 Pa. 357, 106 A.3d 695, 700-01 (Pa. 2014) (before defendant must prove privacy interest in area searched, Commonwealth must initially satisfy its burden of production by presenting evidence showing defendant lacked any protected privacy interest; where Commonwealth fails to bear this initial burden, burden never shifts to defendant to prove privacy interest). Our Supreme Court has explained that, while the expectation of privacy can be described as a “preliminary” matter, Pa.R.Crim.P. 581(H) nevertheless requires the Commonwealth to both challenge a defendant’s expectation of privacy and demonstrate that the defendant lacked an expectation of privacy. See Enimpah, 106 A.3d at 701-02 (discussing Rule 581(H) and determining that “[t]he Commonwealth may concede the privacy interest, choosing to contest only the legality of the police conduct; if it does so, the defendant’s ‘reasonable expectation of privacy’ need not be established”); see also Pa.R.Crim.P. 581(H) (providing Commonwealth bears burden to present evidence that defendant’s constitutional rights were not infringed). Only after meeting these requirements does the burden of persuasion shift to the defendant to demonstrate that he had a reasonable expectation of privacy in the area searched. Enimpah, 106 A.3d at 700-01.

Instantly, our review, as highlighted above, reveals that the Commonwealth did not challenge Skipper’s expectation of privacy until after the trial court had already granted the suppression motion. At the suppression hearing and in its memorandum of law, the Commonwealth focused solely on the legality of the police conduct and, thus, the Commonwealth did not properly challenge Skipper’s expectation of privacy. See N.T. Suppression Hearing, 3/12/21, at 1-105 (Commonwealth presenting evidence of, inter alia, vehicle stop, inventory search, search of Skipper, and trial court ordering briefs in lieu of argument); Commonwealth’s Memorandum of Law, 4/23/21, at 1-9; Trial Court Opinion, 5/3/21, at 6 (determining Commonwealth had conceded expectation of privacy by failing to raise challenge); see also Enimpah, 106 A.3d 701-02.