Commonwealth v. Janek

363 A.2d 1299, 242 Pa. Super. 340, 1976 Pa. Super. LEXIS 2063

• Court: Superior Court of Pennsylvania
• Decided: September 27, 1976
• Docket: 1680
• Status: Published

Opinions

VAN der VOORT, Judge:

On July 1, 1974, appellee George Janek and a companion, a minor, were arrested by Pennsylvania State Policemen John Parcell and John Freed, while leaving a field belonging to Janek’s mother, Mrs. Lillian Sukup. The field was not visible from the nearest public road, and was posted with “No Trespassing” signs signed by Mrs. Sukup’s husband. The field contained a tent, various gardening implements, approximately two hundred live marijuana plants, and a five or ten pound can of Miracle Grow fertilizer. Appellee was charged with possession with intent to manufacture or deliver drugs, and with unlawful possession of a controlled substance. Ap-pellee filed a timely motion to suppress all evidence obtained by the police in connection with the arrest, which motion was granted by the lower court on June 5, 1975. The Commonwealth took this direct appeal to our Court from the lower court’s Order granting the suppression motion. We find that the lower court erred in granting the motion, and we reverse.

Appellee argues that the police were unlawfully on his mother’s property, and that all evidence discovered by the police while there should be inadmissible against him. We disagree. In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), federal revenue agents on private land without a search or arrest warrant, observed petitioner Charlie Hester drop a jug of moonshine. The Supreme Court stated: “It is obvious that even if their had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant’s own acts, and those of his associates, disclosed the jug, the jar, and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. . The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester’s father’s land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is riot extended to the open fields.” 265 U.S. at 58-59, 44 S.Ct. at 446. Hester has not been overruled, and in fact has been cited by the Supreme Court in recent cases, including Air Pollution Variance Board v. Western Alfalfa, 416 U.S. 861, 865, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). We believe that the situation in the case before us is essentially the same as the situation in Hester, and we find that officers Par cell and Freed were justifiably in position to observe the illegal acts and to seize the marijuana and gardening implements.

Even if we were to conclude that Hester is distinguishable from the case before us, or that it no longer has legal validity in light of Katz v. United, States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), (the conclusion drawn by the lower court in granting appellee’s suppression motion), we find that the police were on the property with the consent of the husband of the record owner, and we would still find it necessary to reverse. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the joint user of a duffel bag gave permission to police officers to search the bag. The resulting search disclosed evidence which was used to convict the owner of the bag of second degree murder. The Supreme Court held that the joint user of the bag “clearly had authority to consent to its search,” and that the petitioner “assumed the risk that [the joint user] would allow someone else to look inside.” 394 U.S. at 740, 89 S.Ct. at 1425. In the case before us, appellee’s step-father, a person married to and residing with the record owner of the property, requested that the police check the property in question in order to prevent further vandalism. Although the record owner of the property testified that she had not consented at any time to the presence of the police on the property, and that to the best of her knowledge her husband had never given any consent, the woman also testified, in apparent contradiction: “[a]fter the fire, we were refused protection by the State Police.” State Police Officer Terry Seiple testified at the suppression hearing that in 1970 or 1971 he had had at least six conversations with Mr. Sukup, in which the latter specifically requested that the State Police check the property in question for the purpose of preventing further acts of vandalism. Although the requests had been made three or four years prior to appellee’s arrest, since the Sukups had moved away and were no longer able to personally keep an eye on the property, and since the perpetrators of the vandalism had never been apprehended, the police were certainly justified in checking the property from time to time. Mr. Sukup did not appear at the suppression hearing to contradict the testimony of Officer Seiple, and we find that the latter’s testimony that he had been requested by Mr. Sukup to check the property was sufficient to establish that the police were legally in a position to observe any illegal activity that was taking place there.

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). “The only requirement for the plain view doctrine is that the officer must have had the right to be in the position to have the view.” Commonwealth v. Clelland, 227 Pa. Super. 384, 323 A.2d 60 (1974). We find that the police in this case were legally justified in being on the property in question. The police officers observed appellee with mud on his clothes and gardening implements nearby, in a field which they knew contained marijuana plants; they therefore had probable cause to believe that they were observing appellee in the commission of a crime, and were legally justified in making a warrantless arrest. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964); Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Tookes, 236 Pa. Super. 386, 344 A.2d 576 (1975). Evidence obtained from appellee’s person, or which is otherwise “fruit” of the arrest is therefore admissible. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Commonwealth v. Tookes, supra.

The Order of the lower court granting the motion to suppress is reversed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.