Com. v. Hernley

• Court: Superior Court of Pennsylvania
• Citation: 263 A.2d 904,216 Pa.Super. 177
• Parties: , 48 A.L.R.3d 1172 COMMONWEALTH of Pennsylvania v. John Lloyd HERNLEY, Dorthy Hernley and Raymond H. Dunham, Appellants.
• Decision Date: 19 March 1970

Page 904

263 A.2d 904 216 Pa.Super. 177, 48 A.L.R.3d 1172 COMMONWEALTH of Pennsylvania
v.
John Lloyd HERNLEY, Dorthy Hernley and Raymond H. Dunham, Appellants. Superior Court of Pennsylvania. March 19, 1970.
Application for Allocatur Denied May 22, 1970.

Page 905

Robert Banks, Greenville, for appellants.

Herman M. Rodgers, Sharon, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.

JACOBS, Judge.

This is an appeal by the Commonwealth from an order of the court below suppressing all evidence obtained [216 Pa.Super. 178] under a search warrant on the grounds that the warrant was issued upon information received as a result of an unconstitutional search and seizure. ¹ Disposition of this case depends entirely on whether the nocturnal observation through the windows of appellees' printshop by an FBI agent while standing on top of a ladder and using binoculars constituted an unreasonable search. The Commonwealth contends that this observation, if upheld, supports the issuance of the warrant by itself and, therefore, the tangible evidence seized will support its case. The Commonwealth has conceded that evidence acquired by other police activities prior to the issuance of the warrant and admissions made by some of the appellees when the warrant was executed are inadmissible. The relevant facts are as follows:

Sometime during the fall of 1967, FBI Special Agent Forsythe became aware that football gambling forms were in distribution in Farrell, Pennsylvania. Upon receiving some information, the source and content of which is not made known in the record, Forsythe began surveillance of appellees' printshop. During the evening of October 16, 1967, Forsythe noticed that the presses inside the shop were operating, but due to the location and size of the windows, ² he was unable to observe what was being printed from his position off the premises. In order to remedy this problem, Forsythe mounted a four-foot ladder which he had placed on the railroad tracks abutting appellees' property, [216 Pa.Super. 179] and from a distance of thirty to thirty-five feet observed through a side window, by using binoculars, some "Las Vegas" football parlay sheets, white in color, being run off the press.

Appellees argue that this constituted an illegal search of an area in which they had a reasonable expectation of freedom from governmental visual intrusion. The Commonwealth, on the other hand, contends that, since the appellees left their activities open to view, they may not claim any violation of their rights under the

Page 906

Fourth Amendment. The court below held the search unreasonable on the basis of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Whether the actions of the FBI agent in this case constitute an unreasonable search can only be decided by examining all the surrounding circumstances in light of the Fourth Amendment requirements as interpreted by the relevant case law. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). This examination amounts to a "balancing of interests between the security of public order by the solution and prevention of crimes, and a person's immunity from police interference into his privacy." Commonwealth v. Hicks, 209 Pa.Super. 1, 5, 223 A.2d 873, 875 (1966). In making this determination, it is essential to keep in mind the basic purpose of the Fourth Amendment to protect the individual's privacy against arbitrary intrusion by the police. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Camara v. Municipal Ct., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Viewing the facts of this case, we cannot agree with the court below. A long line of federal court decisions involving window observations have held such to be in violation of the Fourth Amendment where the officers made their surveillance while on the defendant's property. See Brock v. United States, 223 F.2d 681 (5th Cir.1955); People of State of Cal. v. Hurst, 325 F.2d 891 (9th Cir.1963), [216 Pa.Super. 180] rev'd on other grounds, 381 U.S. 760, 85 S.Ct. 1796, 14 L.Ed.2d 713 (1965); and State of Texas v. Gonzales, 388 F.2d 145 (5th Cir.1968). ³ In contrast, cases such as People v. Wright, 41 Ill.2d 170, 242 N.E.2d 180 (1968), and Ponce v. Craven, 409 F.2d 621 (9th Cir.1969), have upheld visual observations where the police, as here, were off the defendant's premises. ⁴ Further, the fact that the visual observation was made by the use of binoculars has not made it unreasonable. In Johnson v. State, 2 Md.App. 300, 234 A.2d 464 (1967), the court upheld an observation by police officers into the windows of defendant's house by using binoculars while situated in an adjacent house. In Fullbright v. United States, 392 F.2d 432 (10th Cir.1968), cert....