“Silver Platter” Exception to the Exclusionary Rule; Non-occupant’s Invitation

Commonwealth v. Capriotti, 2021 WL 3836846 (Pa. Super. 2021) (unreported), allocatur granted Feb. 23, 2022, appeal docket 23 MAP 2022

Zachary Clayton Capriotti (Capriotti), a parolee, was convicted of unlawfully possessing guns and drugs  found  by his parents, Enrico and Arlene Capriotti (Enrico and Arlene), in the presence of the State Police, in a property owned by Enrico and Arlene that included a restaurant and an upstairs apartment. Superior Court summarized Arlene Capriotti’s testimony as follows:

… in 2014, she and her husband allowed Capriotti to move into the upstairs apartment at the property after his release from prison so that he had a residence for parole purposes.2 (See N.T. Hearing, 6/09/19, at 10). Enrico and Arlene had an oral agreement with Capriotti that, in return for being allowed to stay in the apartment, Capriotti would pay the mortgage and any bills associated with the premises and run the restaurant. In approximately September/October 2018, Capriotti began having problems paying the mortgage, and in November/December 2018, the insurance on the building was cancelled for nonpayment. Enrico and Arlene took over Capriotti’s agreed payment obligations. The parties discussed that Capriotti would have to find another place to stay if he did not take care of his obligations and in November 2019, they decided to sell the premises, calling an auctioneer to make arrangements.

In February 2019, Enrico and Arlene took over running the restaurant and new locks were installed so Capriotti could no longer access the restaurant, although he had continued access to the upstairs apartment via back stairs so he could remove his belongings. (See id. at 17-19, 42). At that time, Enrico told Capriotti he had two weeks to move out and Capriotti told him that he had guns in the wall of the restaurant he would need to retrieve. (See id. at 20). Enrico believed that the guns were hidden in the restaurant kitchen wall that had recently been painted white, when previously it had been green like all the others. (See id. at 26).

On February 17, 2019, Capriotti came into the restaurant while Arlene was there. At that time, Capriotti’s cousin, Caleb Stoner, was also visiting and staying with Capriotti in the apartment. Arlene saw Capriotti pull a pistol in a brown leather holster out of the kitchen area. He was acting irrational and swinging the pistol around. Arlene called 911. (See id. at 24). When state police troopers arrived, Capriotti was no longer holding the handgun and he left the premises after briefly speaking with them. Arlene testified that either she or Enrico told the state police troopers that Capriotti told them there were guns in the restaurant kitchen wall, and Enrico used a utility knife to cut into the wall while Trooper Curtis Benjamin was watching and discovered two rifles. (See id. at 26-27, 51-52). The state police troopers took possession of the firearms and left the premises.

Arlene stated that after the state police troopers left, she and Enrico were concerned that there were more guns on the premises and Enrico went into the apartment to search. When Enrico found two pistols and drugs on a ledge in the closet of her grandson’s room, Enrico and Arlene called the state police troopers again and Trooper Curtis Benjamin came back and retrieved the contraband. (See id. at 56). Arlene identified one of the guns as the same one she had seen Capriotti waving around earlier. (See id. at 34, 59).

On February 22, 2019, Enrico and Arlene began formal eviction proceedings because they were concerned that if Capriotti was released from prison, he would “come back and destroy the place.” (Id. at 59); (see id. at 43). There was no question in her mind that they had all agreed that Capriotti had to leave since he was not meeting his half of the deal.

Slip op. at 3-5. Superior Court additionally summarized the testimony of Pennsylvania State Trooper Curtin Benjamin regarding the search of the upstairs apartment, as follows:

[Trooper Benjamin] returned to the state police barracks with the shotgun and AK-47 to log them into evidence before receiving a call to return to the premises because Enrico had located two additional guns and what he believed to be drugs in the upstairs apartment.

Upon returning, Trooper Benjamin followed Enrico upstairs to the apartment and Enrico showed him where the items were in the closet. Trooper Benjamin had not told him to conduct the search. The state police trooper removed the items from inside the closet on a ledge, unloaded one pistol that he found was loaded, and took them downstairs to see if Arlene could identify them. He had not seen the pistol during the walk-through because it was not a search. Arlene identified one gun as the pistol she had seen Capriotti in possession of earlier in the day. Both she and Enrico confirmed that they did not own any of the discovered items. The drugs were later identified as methamphetamine and marijuana.

Slip op. at 6.

Capriotti filed a motion to suppress evidence in which he asserted that he had a proprietary possessory interest in the entire property, including the restaurant and apartment owned by his parents. Because his parents had no right to be on the property, he contended that they did not have the authority to allow the police to search protected areas of the building. Capriotti argued that state police troopers conducted an unlawful search when Enrico led them to the upstairs apartment and to a closet shelf from which Trooper Benjamin retrieved two more firearms, drugs and paraphernalia.

The trial court denied Capriotti’s motion to suppress, finding that:

Enrico and Arlene provided the evidence against Capriotti to police on a “silver platter’ when they, “the property and business owners, on their own accord, discovered weapons and a magazine for an AK-47 in the wall of their restaurant. Although the Pennsylvania State Police were present when the discovery was made, [they] did not direct or order Enrico and Arlene Capriotti to cut the wall.”

Slip op. at 14.

Superior Court affirmed the trial court’s denial of the motion to suppress, reasoning that:

As acknowledged by the court, although the Pennsylvania State Police were on the scene when Enrico cut the hole in the wall, he “took it upon himself” without any direction from Trooper Benjamin to cut open the wall, thus revealing weapons in plain view. As for the evidence found in the upstairs bedroom, again, the trooper had not told him to search there and did not assist with the search, merely retrieving the weapons at Enrico’s request upon arriving at the scene.

Slip op. at 15. Superior Court further noted that Zachary failed to establish that he had any privacy interest in the restaurant, explaining:

He concedes that his parents, who owned the property, had changed the locks two weeks before the incident and he no longer was running the establishment. The troopers were lawfully on the premises where they had been dispatched due to the parents’ 911 report of parolee, Capriotti, acting erratically and being in possession of a handgun at the restaurant. The only search conducted by the troopers was incident to arrest to ensure that there were no more guns or other dangerous items endangering the children on the property. Even assuming, arguendo, that Capriotti is correct that the court erroneously found that he had vacated the apartment prior to this incident, the search conducted in the apartment that resulted in the discovery of weapons was not done by the troopers, but by his parents. The Fourth Amendment’s prohibition against search and seizures is inapplicable to them.

Slip op. at 16 n. 6 (emphasis in original).

In a concurring and dissenting opinion, Judge McLaughlin disagreed that the trial court properly denied the motion to suppress as to the items seized from the apartment Capriotti was using as his residence, explaining that there was no testimony to support the conclusion that Capriotti completely vacated the apartment to support application of the “silver platter” doctrine to those items obtained as a result of the search of the apartment.

The Supreme Court granted allocatur as to the following issue:

Whether the Superior Court erred in its application of the “silver platter” exception to the exclusionary rule, where police retrieved evidence of criminality after accepting a non-occupant’s invitation into a residence to retrieve items discovered by the non-occupant during a prior search?

In granting review, the Supreme Court acknowledged that “[t]his question necessarily implicates the legality of the non-occupant’s invitation”  and instructed the parties to address that issue “factually and legally, as they have in the courts below.”


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