Commonwealth v. Johnson

¶1dissenting:

¶2I agree with my distinguished colleagues that abandonment is primarily a question of intent. I also agree with the assertion by my colleagues “that appellee did have a subjective intent to retain possession of the bag [containing drugs].” Majority opinion at 658. It is because of my agreement on these key points that I must respectfully disagree with the conclusion of my colleagues and, accordingly, dissent.

¶3All three cases cited by the Majority on the issue of abandonment stand for the principle that there must be an observable act by a party which clearly evidences an intention to dissociate from certain property before abandonment can be found. Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992); Commonwealth v. Sanders, 407 Pa.Super. 270, 595 A.2d 635 (1991); Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313 (1988).

¶4In a footnote, the Majority sets forth the case for the non-abandonment of the property in the appeal now before us as follows:

While we agree that appellee did have a subjective intent to retain possession of the bag,3....

¶5Majority opinion at 658 (emphasis added). This is clearly correct. The Majority then proceeds, however, to characterize the defendant’s assumed future conduct with these words:

Clearly, appellee’s placement of the bag constituted a conscious effort to dissociate himself from the bag in the event there was police intervention.

¶6Id. at 659 (emphasis added).

¶7With this sentence, the Majority would seemingly accomplish what could not be accomplished in Bennett, Sanders, or Williams, supra.By speculating as to the purpose or reason *299for defendant’s conduct prior to police intervention, the Majority would manufacture a “future abandonment” which is triggered “in the event there was police intervention.” Not surprisingly, my colleagues concede that there are no Pennsylvania cases directly on point, but would liken the facts in the present appeal to the situation obtained in Commonwealth v. Rodriguez, 385 Pa.Super. 1, 559 A.2d 947 (1989); appeal denied, 524 Pa. 619, 571 A.2d 381 (1989).

¶8I am unable to agree with my colleagues’ conclusions for several reasons. First, Rodriguezis inapposite. There, on a pretrial appeal by the Commonwealth, we held that the defendant’s act of throwing away the keys to an abandoned house constituted such a relinquishment of interest in the contents of the house as to defeat the defendant’s attempt to assert a reasonable expectation of privacy in its contents. In Rodriguez, we concluded that the defendant’s lack of standing arising from her act of throwing away the house keys precluded her from even initiating a fourth amendment argument.

¶9Moreover, the Majority would ascribe two diametrically opposed intentions to the single act of the defendant. The Majority first concedes that the careful depositing of the bag in the tree manifests a clear intention by the defendant to retain possession of the bag. My colleagues then assert that the very same act of careful concealment “constituted a conscious effort to dissociate [the defendant] from the bag” assuming a future happening of police intervention. I am unable to join in this reasoning. The facts as found by the distinguished trial judge leave no doubt that the defendant did nothing and said nothing upon being approached by the uniformed officers which could by any stretch of the imagination be understood to be an act of dissociation.

¶10The Majority would hold that the mere placement of the bag in the tree constitutes abandonment where the reviewing court can foretell the actor’s intended conduct in the event of police intervention. Perhaps the greatest flaw in this construction is that, in this case, the police did openly intervene, stopping their marked police car within one foot of, and facing, the defendant’s body. Rather than dissociating himself from *300the bag, as would be required under the theory advanced by the Majority, the defendant stood there, never once saying or doing anything that could be interpreted as dissociating himself from the brown plastic bag placed in the tree.

¶11I decline to join in formulating a rule which would permit the Commonwealth to establish a future intent to abandon property based solely upon the careful concealment of property, which concealment might support an unexpressed desire to disclaim, or throw away, the property involved. At the time the police officer removed the bag from its hiding place in the tree, probable cause for an arrest did not exist nor is there any suggestion that the bag had to be seized and searched to protect the officers’ safety. I would find the seizure to have been unlawful and conclude that the order suppressing the evidence was not in error.

¶12Hence this dissent.