Com. v. Hernley

• Decision Date: 19 March 1970
• 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.
• Court: Pennsylvania Superior Court

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.

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 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, 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 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), 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. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968), where the federal agents observed defendants through an open door, the court held that the use of binoculars did not change the admissibility of the information gained. The Supreme Court of the United States, in applying the plain view doctrine when a searchlight had been used in apprehending a rum runner, opined, "Such use of a searchlight is comparable to the use of a marine glass or field glass. It is not prohibited by the constitution." United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927).

The question then is whether the decision in Katz requires a different result. There the court held that the attachment of an electronic listening device to the outside of a telephone booth, whereby the police were able to record the defendant's conversation while using the telephone within the booth, was an unreasonable search and seizure because it violated the privacy upon which defendant justifiably relied while using the telephone booth. Previous cases holding that electronic surveillance was not unreasonable where no trespass was involved were held to be no longer controlling.

We find that Katz does not require a different result for two reasons. In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), Katz was given wholly prospective application insofar as it departed from previous holdings of the court and was held to apply only to electronic surveillances conducted after December 18, 1967. Thus, even if we felt that the rationale of Katz applied to this visual observation we would consider it a distinct departure from the past and hesitate to apply it to this observation which occurred on October 16, 1967. The second, but more significant, reason is that although Katz does eliminate the physical intrusion requirement in electronic eavesdropping situations, it also emphasizes the need for a justifiable expectation on the part of the suspect that he is conducting his activity outside the sphere of possible governmental intrusion. Justice HARLAN's concurring opinion points to a two-fold requirement: That (a) the suspect has "exhibited an actual (subjective) expectation of privacy", and (b) that society can view this expectation as a reasonable one. 389 U.S. at 361, 88 S.Ct. at 516. In Katz, the suspect entered a phone booth, closed the door and paid the toll, thereby seeking to effectively exclude the listening ear. The Court held that his expectation in this regard was justifiable. Our case presents the situation in which it was incumbent on the suspect to preserve his privacy from visual observation. ⁵ To do that the appellees had only to curtain the windows. Absent such obvious action we cannot find that their expectation of privacy was justifiable or reasonable. The law will not shield criminal activity from visual observation when the actor shows such little regard for his privacy.

The order of the lower court insofar as it suppresses statements made by ...