[J-150-2004] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : JASON MILLNER, : : Appellee : : : : :
No. 35 EAP 2004 Appeal from the Order of the Superior Court entered October 31, 2003 at No. 1519 EDA 2002 affirming the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section entered April 3, 2002 at No. 767, December Term, 2000
SUBMITTED: October 7, 2004
CONCURRING OPINION MR. CHIEF JUSTICE CAPPY DECIDED: December 28, 2005
I join the majority opinion. I write separately only to note that our decision today should not, in any way, be interpreted to represent support for the broad proposition that passengers in a vehicle or those with something other than ownership interests in a vehicle cannot establish a legitimate expectation of privacy in the vehicle searched. Cf.
Commonwealth v. Shiflet, 670 A.2d 128, 131 (Pa. 1995); Commonwealth v. Tarbert, 535 A.2d 1035, 1038 (Pa. 1987) (indicating that “the driver and passengers do not forfeit all reasonable expectation of privacy, and may not be subjected to unfettered governmental intrusion”); see also Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (noting that passengers possess the same “reduced expectation of privacy” in vehicles as drivers). Indeed, we have repeatedly indicated that the focus of the inquiry in such situations is not
whether the person has a property right in the area searched, but rather, focuses on the person’s legitimate expectation of privacy in the place searched. Commonwealth v. Ardestani, 736 A.2d 552 (Pa. 1999). Read in this light, this case stands for the limited proposition that, similar to Appellant Williams in Commonwealth v. Torres, 764 A.2d 532, 543 (Pa. 2001), Appellant did not establish a subjective expectation of privacy in the vehicle. Thus, he is not entitled to relief on his suppression motion.
Madame Justice Newman and Mr. Justice Baer join this concurring opinion.
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