Commonwealth v. Eshelman

345 A.2d 286, 236 Pa. Super. 223, 1975 Pa. Super. LEXIS 1702

• Court: Superior Court of Pennsylvania
• Decided: September 22, 1975
• Docket: Appeal, 1196
• Status: Published

Opinions

Opinion by

Price, J.,

Appellant was found guilty on April 8, 1974, by the lower court sitting without a jury of possession of marijuana and possession with intent to deliver marijuana.¹ Following the denial of post-trial motions, the appellant was fined $500 and sentenced to a term of not less than 3 months nor more than 22 months in the Blair County Prison.

The facts indicate that appellant lived with his grandmother, Mrs. Smith, in her house in Taylor Township, Blair County, adjacent to the Borough of Roaring Springs. On October 15, 1973, Mr. Norman Decker went to the wooded area behind the property looking for a friend who was training hunting dogs. On his way back to his car, Mr. Decker crossed Mrs. Smith’s property. He noticed a car parked in the rear of the property, and walked over to it. Mr. Decker felt the car had been abandoned because it had no license plate, and because grass and weeds had grown up around it.

Mr. Decker glanced into the car and observed rolls or packages of newspaper. Although Mr. Decker was a full time employee of the New Enterprise Stone and Lime Company, he also served, on a part-time basis, as an auxiliary policeman in the Borough of Roaring Springs. As a result of training he had received for his police work, he believed that the packages contained marijuana, which was in the process of being dried. Mr. Decker reached through a partially opened window and retrieved one of the packages.

Mr. Decker took the unopened package to the chief of police of Roaring Springs to have the contents analyzed. The chief could not positively identify the contents, and suggested that the State Police in Hollidaysburg would be better able to identify the substance. Acting on this advice, Mr. Decker proceeded to the State Police Barracks, where the substance was positively identified as marijuana.

Troopers John Winklbauer and William Kephart then secured a search warrant and an arrest warrant and returned to the premises where the marijuana had been found. The search warrant was served on appellant’s grandmother who gave the officers permission to search. While, the troopers were removing the marijuana from the car, the appellant arrived on the scene. He was immediately placed under arrest and informed of his constitutional rights. Appellant admitted the car and the marijuana were his, and informed the officers that there was more marijuana in a nearby shed. Appellant then took the troopers into the shed and helped carry the marijuana outside. Entire plants, weighing approximately 70 pounds, were confiscated.

Appellant now contends that the warrantless search by Mr. Decker was conducted in his capacity as a police officer or at the behest of a sovereign authority, and as such was illegal. Appellant argues that the subsequent warrant was based on illegally obtained information thus tainting all evidence secured under the warrant. Appellant finally argues that even if Mr. Decker was not acting as a police officer, but rather as a private citizen, the search should still come under the proscriptions of the Fourth Amendment to the United States Constitution. We find no merit to appellant’s contentions and will, therefore, affirm.

It is well settled that a search by a private individual is not subject to the restraints of the fourth amendment. Burdeau v. McDowell, 256 U.S. 465 (1921); Commonwealth v. Dingfelt, 227 Pa. Superior Ct. 380, 323 A.2d 145 (1974). Although appellant argues that this should not apply in the Commonwealth, we will not overturn previous cases, and, once again, reaffirm this as the law in Pennsylvania.

We are, therefore, concerned only with the question of whether or not Mr. Decker was acting either in his capacity as an auxiliary police officer, or under the control of some government authority. A search conducted by a private citizen may lose its immunity if the police request the search, or if they take an active part in it. Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). However, where the search is conducted solely by a private citizen without police knowledge, and the results are later turned over to a proper law enforcement agency for further action, the evidence is admissible. Commonwealth v. Kozak, 233 Pa. Superior Ct. 348, 336 A.2d 387 (1975).

The testimony revealed that Mr. Decker worked 246 hours as an auxiliary policeman during 1973. He was not on a salary, but was paid an hourly rate of $2.00. Mr. Decker did not have a regular work shift as an auxiliary police officer, but was available to be called any time the chief of police felt additional help was needed. When he was on duty, Mr. Decker wore a uniform, carried a gun, and rode in the police car.

On October 15, 1973, Mr. Decker was not on duty, was not in uniform or carrying his police weapon, and was not even in Roaring Springs, his jurisdictional territory, when he made the search. Mr. Decker also testified that he was not on the property looking for marijuana at the direction of any law enforcement agency.

Auxiliary policemen are discussed at 53 P.S. §735:

“ (a) Auxiliary policemen on active duty shall have the same powers as regular police officers of the municipality in which they are serving, and shall perform such other duties as may be assigned to them by the chief of police.

(c) The powers herein conferred may be exercised by auxiliary policemen only after they report for active duty and until they are relieved from duty.” (emphasis added)²

The statute clearly indicates that the powers and authority of auxiliary police officers are in effect only while they are on active duty. Once the particular tour of duty is completed, the auxiliary officer returns to his former station as a private citizen. He no longer has the unique powers and abilities which society vests in him by virtue of his position as a policeman, nor does he have the sometimes staggering burdens which often accompany the job. We must recognize that there is a very real difference between an on duty auxiliary police officer and an off duty auxiliary police officer. We hold that an off duty auxiliary police officer is a private citizen and as such is not bound by the restrictions of the fourth amendment insofar as they apply to a search.

Finally, the trial judge did not accept appellant’s contention that Mr. Decker was actually working under orders from either the Roaring Springs’ police authorities or the Pennsylvania State Police. “It is well settled that a jury or a trial Court can believe all or a part of or none of . . . the testimony of any witness: (citations omitted).” Commonwealth v. Carroll, 412 Pa. 525, 538, 194 A.2d 911, 916 (1963). Mr. Decker testified that he was not under police orders or on any course of conduct influenced by or guided by any governmental agency when he entered the property of appellant’s grandmother, and the trial court believed this testimony. The trial judge’s finding is supported by the. record and will not be disturbed on appeal. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Weiner, 230 Pa. Superior Ct. 245, 326 A.2d 896 (1974).

The judgment of sentence of the lower court is affirmed.

1 . Appellant was arrested and tried for violation of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, §1 (35 P.S. §780-101) et seq.

2 . Act of January 14, 1952, P.L. (1951) 2016, §5 (53 P.S. §735).