[J-82-2022]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ZACHARY CLAYTON CAPRIOTTI,

Appellant

:

:

:

:

:

:

:

:

:

:

:

:

:

No. 23 MAP 2022

Appeal from the Order of the 

Superior Court dated August 27, 

2021 at No. 1287 MDA 2020 

Vacating the Judgment of Sentence 

of the Sullivan County Court of 

Common Pleas, Criminal Division, 

dated September 1, 2020 at No. 

CP-57-CR-0000021-2019 and 

Remanding

ARGUED: November 30, 2022

DISSENTING STATEMENT

JUSTICE DONOHUE FILED: January 10, 2023

I join Justice Wecht’s Dissenting Statement. We granted Zachary Capriotti’s 

petition for allowance of appeal to answer an important and novel constitutional question

regarding the Superior Court’s expansive application of the silver platter and/or private 

search doctrines in circumstances that strain any connection to the underlying rationale

of those exceptions to the warrant requirement.

1 I perceive no reason why we should not 

decide this case. I would also reach the merits of Capriotti’s claim today and reverse the 

1 As Justice Wecht aptly notes, the facts of this case are “categorically different” from the 

typical silver-platter or private-search doctrine case, wherein contraband is delivered to 

police by a private party on a proverbial silver platter. Justice Wecht’s Dissenting 

Statement at 19 (“Wecht Dissenting Statement”). Here, Pennsylvania State Police Officer

Curtis Benjamin (“Trooper Benjamin”) was delivered to the contraband, by traversing 

constitutionally protected space without a warrant, and absent any applicable exception 

to the warrant requirement.
[J-82-2022] - 2

judgment of the Superior Court for the reasons set forth in Justice Wecht’s Dissenting 

Statement. 

I write separately to offer my additional perspective as to why this appeal was not 

improvidently granted. Orders of this Court dismissing appeals as improvidently granted 

are opaque and cause speculation by the bench and bar as to the reason for avoiding 

disposition of fully briefed and argued cases. Ordinarily, in such cases there are some 

facts or set of facts or some procedural irregularity (most often waiver) that present an 

impediment to our resolution of the important issue upon which we granted allowance of 

appeal. 

Central to the viability of Capriotti’s objection to the application of any exception to 

the warrant requirement is the existence of his privacy interest in the searched premises. 

If he lacked such an interest or his privacy interest was diminished or he failed to assert 

a privacy interest, the propriety of the application of the private search doctrine or the 

silver platter exception would necessarily escape our review. None of these impediments 

infect this case.

Capriotti has consistently maintained at every stage of the proceedings in this 

case, without exception, that he had a reasonable expectation of privacy in the apartment 

when Trooper Benjamin accompanied Capriotti’s father to the location where the 

contraband was found. In his suppression motion, Capriotti asserted that he had a 

“possessory interest” in the “entire property” that was protected under both the Fourth 

Amendment and Article 1, Section 8 of the Pennsylvania Constitution. Motion to 

Suppress, 5/22/2019, ¶¶ 14-15. He claimed that his parents had no right to be on the 

property and, therefore, no “authority to let the police search protected areas of the 
[J-82-2022] - 3

building ... .” Id. ¶ 14. Capriotti argued that his parents were trespassing on the date of 

the search, id. ¶ 16, that he was still “sleeping and living in that apartment[,]” that day, 

and that his father had “no right to search the upstairs apartment where” Capriotti resided, 

id. ¶ 22. Capriotti filed an omnibus post-sentence motion raising, inter alia, a challenge 

to the trial court’s denial of his suppression motion. Despite having no knowledge as to 

why the court had denied it (because the trial court never issued findings of fact and 

conclusions of law), Capriotti challenged the decision, arguing that a search warrant was 

required in the circumstances of this case. Specifically, he asserted that the court erred 

by “allowing the prosecution to rely on the silver platter doctrine,” and that no “exception 

to the search warrant requirement applied because [Capriotti] had an exclusive 

possessory interest as the properties searched were leased to him, there were no 

exigent circumstances, and the [t]roopers partook in the search.” Post-Sentence Motion, 

9/9/2020, at 2, ¶ 6 (emphasis added). 

Capriotti preserved the issue in his Pa.R.A.P. 1925(b) statement, see Rule 1925(b) 

Statement, 10/16/2020, at 1, ¶ 2, in his Superior Court brief, see Capriotti’s Superior Court 

Brief at 26, 31-32, in his petition for allowance of appeal, see Petition for Allowance of 

Appeal at 8, and he did not waver from this position in his brief to this Court, see Capriotti’s 

Brief at 9. Thus, Capriotti preserved the assertion of his privacy interest in the apartment.2

2 Moreover, as explained by Justice Wecht, the evidence produced at the suppression 

hearing conclusively supported that Capriotti had a privacy interest in the apartment on 

the day in question in his capacity as a de facto tenant pursuant to an oral lease or, if not 

as a tenant, as an occupant of the apartment. See Wecht Dissenting Statement at 11 

(explaining that it was Capriotti’s “subjective expectation of privacy, not his precise legal 

relationship to the property” that is dispositive under the Fourth Amendment); see also id. 

at 21-22 (demonstrating that, regardless, the facts from the suppression hearing showed 

that Capriotti was effectively a tenant). 
[J-82-2022] - 4

Although the trial court never made the legal conclusion that Capriotti abandoned 

his privacy interest in the apartment,3 the issue lurked in the background. In its opinion, 

the trial court stated that Capriotti “vacated the apartment approximately one (1) week 

prior to the incident.” Trial Court Opinion, 11/30/20, at 5. As noted by Justice Wecht, the 

trial court made no attempt to justify this statement by citation to the record and nothing 

in the record could support that factual finding. Wecht’s Dissenting Statement at 11 n.25. 

Nevertheless, Capriotti consistently challenged the finding that he had vacated the 

apartment at every stage of proceedings from the time that the trial court first made it in 

response to Capriotti’s post-sentence motion. In his Rule 1925(b) statement, Capriotti

refuted that finding by reasserting that he did, in fact, have “a right of privacy in ... his 

apartment,” a claim wholly inconsistent with the notion of abandonment ostensibly implied 

by the trial court’s finding that he had vacated the apartment prior to the incident. Rule 

1925(b) Statement at 1, ¶ 2. In his brief to the Superior Court, he repeatedly maintained 

3 “[T]o prevail on a suppression motion, a defendant must demonstrate a legitimate 

expectation of privacy in the area searched or effects seized, and such expectation 

cannot be established where a defendant has meaningfully abdicated his control, 

ownership or possessory interest.” Commonwealth v. Dowds, 761 A.2d 1125, 1131 (Pa. 

2000) (citing Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998)). “Significantly, 

abandonment of a privacy interest is primarily a question of intent and may be inferred 

from words spoken, acts done, and other objective facts.” Id. (citing Commonwealth v. 

Shoatz, 366 A.2d 1216, 1220 (Pa. 1976)). I would conclude that the trial court did not 

make a ruling premised on abandonment, given that it never used that legal term of art, 

but instead used the term “vacated,” which fails to encompass the primary question in 

abandonment jurisprudence, which is a matter of intent, not one of mere spatial presence 

in the location searched. See id. at 1131. Moreover, while the trial court cited case law 

related to the silver platter and private search doctrines in its opinion, it cited no authorities 

concerning abandonment. The court concluded the second phase of its analysis 

(regarding the discovery of the contraband in the apartment) by invoking the silver platter 

doctrine (citing Commonwealth v. Borecky, 419 A.2d 753 (Pa. Super. 1980)), making no 

mention or reference to its prior statement about Capriotti’s vacating the apartment.
[J-82-2022] - 5

that he did not abandon the apartment. Capriotti’s Superior Court Brief at 31, 33.

4 

Likewise, Capriotti challenged the trial court’s factual finding in his Petition for Allowance 

of Appeal, Petition for Allowance of Appeal at 8 (noting “uncontradicted evidence” during 

the suppression hearing “that [Capriotti] was still occupying the upstairs apartment and 

that he had not yet vacated the premises”), and in his brief to this Court, Capriotti’s Brief 

at 15 (“There was no evidence that [Capriotti] ever abandoned the apartment.”). It is 

4 In its brief to the Superior Court, the Commonwealth baldly asserted that: “The 

testimony and evidence provided at trial showed that the [Capriotti] had vacated the 

building and that [any] proprietary interest belonged solely to the owners of the real 

estate.” Commonwealth’s Superior Court Brief at 8 (emphasis added). The 

Commonwealth provided no citations to the record to support its assertion nor any 

accompanying legal analysis. Indeed, on its face, the Commonwealth’s argument was 

meaningless, as an appellate court’s “scope of review of suppression rulings includes 

only the suppression hearing record and excludes evidence elicited at trial.” 

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). Even so, there is also 

nothing in the record from Capriotti’s trial that would support the wholly unfounded 

assertion that Capriotti had “vacated,” much less “abandoned” the apartment, if the trial 

transcripts fell within our scope of review. The trial court record shows the opposite. For 

instance, Capriotti’s father testified at trial that, when he asked police to search Capriotti’s 

apartment, the police refused to conduct a comprehensive search (beyond a brief safety 

sweep), telling Capriotti’s father that they “didn’t have a legal right” to do so, ostensibly 

because police well-understood at that time that Capriotti retained at least some privacy 

interest in the apartment, his home, and had not vacated or abandoned it. N.T., 

11/3/2020, at 77. Later, Capriotti’s father agreed that his son was “[n]ever” locked out of 

the apartment, and that when he heard footsteps from the apartment stairwell on the day 

of the incident, he assumed it was Capriotti. Id. at 82. Capriotti’s mother also testified at 

trial that Capriotti was “[n]ever” locked out of the apartment. Id. at 44. She further stated 

that she and her husband “made sure that [Capriotti] had a key so that he could come in 

and out of the apartment as he needed ... .” Id. Not only does the trial record fail to 

support the Commonwealth’s assertions that Capriotti had abandoned his privacy interest 

in the apartment, but it also directly refutes that claim.
[J-82-2022] - 6

patently clear that Capriotti had consistently challenged the trial court’s factual finding that 

he had vacated the apartment prior to the contested search.5,6

As recognized in our grant of allowance of appeal,

7 if the Commonwealth 

established that Capriotti’s father possessed either the actual or apparent authority to 

consent to Trooper Benjamin’s search of the apartment, the warrant requirement would 

not have applied. However, neither the trial court nor the Superior Court ever discussed 

authority to consent or apparent authority to consent, relying instead on the silver platter

and/or private search doctrines, which are wholly inapplicable if Capriotti’s father 

possessed the actual or apparent authority to authorize Trooper Benjamin’s warrantless 

intrusion. Nevertheless, Capriotti consistently maintained that his father had no such 

authority to consent to a search. As noted by Justice Wecht, no such authority could 

legally stem from Capriotti’s relationship to his father or his father’s role as a landlord, nor 

do any other facts ascertainable from the suppression hearing suggest that Trooper 

Benjamin could have reasonably believed that Capriotti’s father had the apparent 

5 Moreover, as detailed by Justice Wecht, the record utterly fails to support the trial court’s 

factual finding that Capriotti vacated the apartment. See Wecht Dissenting Statement at 

10-11. 

6 I further note that the Commonwealth effectively conceded that Capriotti had a privacy 

interest in the apartment, stating: “The Commonwealth is not suggesting that [Capriotti]

had no expectation of privacy in his son’s room [where the contraband was found], just 

that in the circumstances of this case that expectation was limited.” Commonwealth’s 

Brief at 17 n.11 (emphasis added). 

7 In granting Capriotti’s petition for allowance of appeal, we stated: “This question 

necessarily implicates the legality of the non-occupant’s invitation, which the parties 

should address factually and legally, as they have in the courts below.” Commonwealth 

v. Capriotti, 273 A.3d 510 (Pa. 2022) (per curiam).
[J-82-2022] - 7

authority to consent to a search of Capriotti’s private residence. See Wecht Dissenting 

Statement at 22.

With respect to the father’s authority to consent, neither the trial court nor the 

Superior Court concluded that an exigency exception to the warrant requirement applied 

in this case. Indeed, exigency was only vaguely suggested by the facts testified to at the 

suppression hearing in that the contraband was discovered inside Capriotti’s son’s 

bedroom closet, presumably thereby creating a safety concern. The Commonwealth

sporadically and unconvincingly argues8 that this fact supported a legal conclusion that 

was never made by any lower court – that the risk to the child created an exigency, 

justifying a warrantless search. However, I fully agree with Justice Wecht that, if there 

was a concern for Capriotti’s son, either Trooper Benjamin or Capriotti’s father “could 

have secured the apartment against entry by Capriotti’s son (or anyone else) while 

troopers obtained a search warrant.” Wecht Dissenting Statement at 22. The 

Commonwealth never made any attempt to demonstrate that temporarily securing the 

premises was unfeasible, nor does the record independently reveal such a reason. 

Finally, it was uncontested throughout the proceedings in this case that Capriotti 

was on parole at the time of the search, thus, under certain circumstances, he had a 

diminished expectation of privacy. However, any theory that Trooper Benjamin was 

permitted to dispense with the warrant requirement because of that status would require 

8 The Commonwealth’s Brief does not set forth exigency as an independent justification 

for the warrantless search, and instead occasionally references Capriotti’s father’s 

concern for his grandson due to the presence of the contraband. However, the 

Commonwealth did aver that exigent circumstances existed in its answer to Capriotti’s 

suppression motion (although it did not explain the nature of that exigency). 

Commonwealth’s Answer, 5/30/2019, ¶ 10. 
[J-82-2022] - 8

a total revamping of the applicable law governing warrantless searches of homes of 

parolees. The home of a parolee or probationer, “like anyone else’s, is protected by the 

Fourth Amendment's requirement that searches be ‘reasonable.’” Griffin v. Wisconsin, 

483 U.S. 868, 873 (1987). A warrant is generally required to satisfy the Fourth 

Amendment’s reasonableness standard, however, the United States Supreme Court has 

“permitted exceptions when ‘special needs, beyond the normal need for law enforcement, 

make the warrant and probable-cause requirement impracticable.’” Id. (quoting New 

Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment)). The

Griffin Court held that a warrantless search of a parolee or probationer’s home satisfies 

the Fourth Amendment if “it was carried out pursuant to a regulation that itself satisfies 

the Fourth Amendment’s reasonableness requirement under well-established principles.” 

Id. (emphasis added). The absence of regulatory framework governing warrantless 

searches of a probationer’s or parolee’s residence is a critical factor in determining 

whether such searches are reasonable under the Fourth Amendment, as this Court held 

in Commonwealth v. Pickron, 634 A.2d 1093, 1098 (Pa. 1993) (holding that “in the context 

of a probationer or parolee’s limited [F]ourth [A]mendment rights, some systemic 

procedural safeguards must be in place to guarantee those limited fourth amendment 

rights”). In Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013), this Court recognized that, 

in Pennsylvania, 42 Pa.C.S. § 9912 governs the relationship between parole/probation 

officers and parolees/probationers, noting that “Section 9912’s progenitor was adopted 

by the General Assembly with an eye to addressing the constitutional concerns identified 

in Pickron[.]” Wilson, 67 A.3d at 744. 
[J-82-2022] - 9

Pertinent here, Section 9912(b)(1) provides that “[o]fficers and, where they are 

responsible for the supervision of county offenders, State parole agents may search the 

person and property of offenders in accordance with the provisions of this section.” 42 

Pa.C.S. § 9912(b)(1). Section 9912(d)(2) provides that probation/parole officers may 

conduct a property search “if there is reasonable suspicion to believe that the real or other 

property in the possession of or under the control of the offender contains contraband or 

other evidence of violations of the conditions of supervision.” 42 Pa.C.S. § 9912(d)(2). 

However, Section 9911 defines “Officer” as follows: “A probation or parole officer 

appointed or employed by any court or by any county department of probation and parole 

to supervise persons released on county probation or parole.” 42 Pa.C.S. § 9911

(“Definitions”). Conspicuously absent from this definition are police officers or state 

troopers. Because no “officers” within the meaning of Section 9912(d)(2) participated or 

accompanied Trooper Benjamin during his intrusion into Capriotti’s apartment, it is 

patently clear that Trooper Benjamin’s failure to obtain a warrant was not permitted under 

Griffin’s “special needs” exception the Fourth Amendment, because the search fell 

outside the regulatory framework that permits that exception.9

Nevertheless, neither the trial court nor the Superior Court ruled that the Capriotti’s 

status as a parolee justified the warrantless intrusion into his apartment under the pretext 

9 Assuming that we were to ignore the express statutory definition of an officer under the 

statute, Trooper Benjamin’s actions would still not be authorized under Section 9912, 

because subsection (d)(3) further provides that “[p]rior approval of a supervisor shall be 

obtained for a property search absent exigent circumstances.” 42 Pa.C.S. § 9912(d)(3)

(emphasis added). Thus, absent exigency (which is not an issue in this case as discussed 

above), Section 9912(d)(3) requires prior approval by a supervisor for any property search 

undertaken under the auspices of probation and parole regulations, and there is no 

indication in the record that Trooper Benjamin ever sought prior approval from any 

supervisors before he transgressed into Capriotti’s apartment without a warrant. 
[J-82-2022] - 10

of the enforcement of parole regulations. While the Commonwealth had no burden to 

preserve such an issue, it has never argued the applicability of the Griffin exception to the 

warrant requirement at any stage in this case. Indeed, the Commonwealth briefly 

mentions Griffin for the first time in its brief to this court, yet it tacitly concedes the 

inapplicability of the Griffin exception, reasoning that “if parole officers had entered, the 

seizure would have been permissible.” Commonwealth’s Brief at 25 (emphasis added). 

Conclusion

In sum, this appeal is ripe for decision by this Court. Dismissing this appeal as 

improvidently granted is, to me, unsupported given the gravity of the Fourth Amendment 

implications of the Superior Court’s expansion of the silver platter doctrine10 and the lack 

of any discernable basis for avoiding the question we accepted for review. I respectfully 

dissent. 

Justice Wecht joins this dissenting statement.

10 I note that unpublished, non-precedential memorandum decisions issued by the

Superior Court after May 1, 2019 “may be cited for their persuasive value.” Pa.R.A.P. 

126(b)(2).