Com. v. Oglialoro

• Decision Date: 23 August 1990
• Citation: 525 Pa. 250,579 A.2d 1288
• Parties: , 59 USLW 2158 COMMONWEALTH of Pennsylvania, Appellant, v. Joseph OGLIALORO, Appellee.
• Court: Pennsylvania Supreme Court

Page 1288

579 A.2d 1288

525 Pa. 250, 59 USLW 2158

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph OGLIALORO, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 14, 1989.

Decided Aug. 23, 1990.

[525 Pa. 253] Alan M. Rubenstein, Dist. Atty., T. Gary Gambardella, Asst. Dist. Atty., Stephen B. Harris, Chief, Appeals Div., for appellant.

Claire C. Capristo, for amicus--Pa. D.A. Assn.

Ernest D. Preate, Jr., for amicus--Office of Atty. Gen.

Ronald H. Elgart, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

This is an appeal of the Commonwealth of Pennsylvania, Appellant, from the opinion and order of the Superior Court granting the Appellee, Joseph Oglialoro, a new trial and reversing the order of the Court of Common Pleas of Bucks County.

On September 9, 1986, the Honorable Edward G. Biester, Jr., denied the Appellee's motion to suppress marijuana seized from his premises. Appellee was later convicted, in a non-jury trial before Judge Biester, of possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia, and sentenced to a term of imprisonment of 11 1/2 to 23 months. This conviction stemmed from the following incident, as summarized by the suppression court:

On October 11, 1985, Pennsylvania State Police at the Trevose Barracks received an anonymous telephone tip, allegedly from a private aircraft pilot reporting the presence of marijuana in the [Appellee's] pole-barn. (N.T., p. 15). Acting on the tip, three police officers flew over the premises in a state police helicopter on October 16, 1985. (N.T., pp. 15, 33). The day was bright and sunny. (N.T., p. 40). The helicopter initially flew over [Appellee's] property at a height of approximately 500 feet above the [Appellee's] barn; however, the police were unable to ascertain the barn's contents at that altitude and therefore reduced their altitude to approximately 50 feet over the barn. (N.T., pp. 23-24). The police were not using any visual aids to assist their observations. (N.T., pp. 33, 47). While hovering at 50 feet, police observed the tops of plants which were pressed up against the barn's roof, and which clearly matched the color, size, and configuration of marijuana. (N.T., pp. 56-57). The police helicopter hovered at a height of 50 feet for approximately 15 seconds and made a total of three or more passes over the [Appellee's] property, lasting approximately five minutes. (N.T., pp. 25, 32, 45,). [Appellee's] wife was present in the home at the time. (N.T., p. 93). She experienced various sensations caused by the helicopters proximity, such as loud noise, and vibration of the house and windows. (Id.)

After clearly identifying the marijuana from an altitude of 50 feet over the barn (N.T., pp. 63-64), the helicopter returned to the State Police Barracks. On the basis of the officers' aerial observations, the local police chief proceeded to obtain a search warrant (N.T., pp. 25-26), while other officers drove to the site to secure the property in the interim. (N.T., p. 26).

The officers participating in the aerial viewing had significant training and experience in the detection of marijuana. (N.T., pp. 29-30, 55). Marijuana has a precise growing configuration (N.T., p. 30), and grows in a distinctive color, distinguishable from other vegetation growing in Pennsylvania. (N.T., pp. 47-48, 58-60). From an altitude of 500 feet it was possible to observe through the barn roof a color identical to the color of growing marijuana plants. (N.T., p. 39). At 50 feet, it was possible to identify, clearly as marijuana, the leaves of a plant which were pressed against the barn roof. (N.T., p. 39). In general, it was possible to observe objects inside the barn through the roof, especially if the object was positioned close to the roof. (N.T., p. 39).

When the search warrant arrived, the police forcibly entered the barn and observed 91 very large marijuana plants. (N.T., p. 9, Exhibits CS-3, 13). The plants appear to have ranged in height between 12 to 18 feet tall, and some were stooped over and pressed against the barn's roof. (Exhibits CS-3, 13).

Appellee appealed to the Superior Court. Commonwealth v. Oglialoro, 377 Pa.Superior Ct. 317, 547 A.2d 387 (1988). In that appeal, Appellee contended that the police conducted an illegal helicopter search because it interfered with his reasonable expectation of privacy in his pole-barn. Furthermore, Appellee insisted his pre-trial motion to suppress should have been granted, and that fruits of the illegal search, the marijuana plants, should have been suppressed.

The Superior Court agreed and held that the marijuana was suppressible. Accordingly, the Superior Court reversed the judgment of sentence and granted Appellee a new trial. In so doing, that Court found persuasive the holding in the case of People v. Sabo, 185 Cal.App.3d 845, 230 Cal.Rptr. 170 (1986), cert. denied, California v. Sabo, 481 U.S. 1058, 107 S.Ct. 2200, 95 L.Ed.2d 855 (1987). In Sabo, the California Court of Appeals concluded that helicopter "views from non-navigable airspace of a defendant's marijuana viewed through the missing panels of a greenhouse, located in the defendant's backyard, constituted an invasion of privacy, and the seizure of contraband under the warrant issued pursuant to the helicopter viewing violated respondents Fourth Amendment rights." Sabo, 230 Cal.Rptr. at 176.

We granted the Commonwealth's petition for allowance of appeal to consider the propriety of the Superior Court's conclusion that suppressing the evidence obtained here was part of an illegal search.

To prevail successfully on a claim of governmental invasion of privacy, Appellee is required first to show that a subjective expectation of privacy exists as to the area being searched. An expectation of privacy is present when the individual, by his conduct, "exhibits an actual (subjective) expectation of privacy" and that the subjective expectation "is one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). ¹ See, Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 470, 248 A.2d 197 (1968); Commonwealth v. Brachbill, 520 Pa. 533, 555 A.2d 82 (1989). The controlling consideration is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched. See, Commonwealth v. Dobson, 486 Pa. 299, 317-18, 405 A.2d 910, 920 (1979).

Appellee contends that he exhibited an expectation of privacy in the pole-barn because of the manner of its construction and its location in a rural area. This structure stood approximately 18 feet tall. The sides of the barn were completely opaque and the roof consisted of transparent plastic sheets. He assembled his pole-barn entirely upon his property: approximately 446 feet from the road, and 251 feet from his residence. The building and placement of this structure appear to be such that Appellee successfully denied anyone adjacent to this structure, or parallel to this structure, a view of the goings on inside of it.

However, while this expectation may be adequate to persons attempting to view the contents from ground level, the question is whether Appellee's expectation extended to aerial observations of the roof. Appellee's use of a transparent roof created an unobstructed window to the sky. People in the barn could gaze through the opening skyward and overhead spectators, with equal ease, could peer into the barn because of the transparent roof. Since the construction of the roof made it like an open or uncovered window, it would be most instructive to review the case law as to whether an expectation of privacy is present where one opens his windows.

The mere looking at that which is open to view is not a search. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985).

In Commonwealth v. Hernley, 216 Pa.Superior Ct. 177, 263 A.2d 904 (1970), allocatur denied, cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), a Federal Bureau of Investigation Agent, standing on a ladder and using binoculars, observed gambling records through a window on the third floor of a print shop. The Superior Court accepted the Commonwealth's argument that the defendant left his activities open to view; therefore, there was no violation of the Fourth Amendment. The court stated that "it was incumbent on the suspect to preserve his privacy from visual observation." Hernley, 216 Pa.Superior Ct. at 181, 263 A.2d 904.

Failure of a defendant, or those with him, to close the window shades negates defendant's argument that he was deprived of his privacy. Commonwealth v. Johnson, 247 Pa.Superior Ct. 208, 372 A.2d 11, 13 (1977), vacated, 484 Pa. 349, 399 A.2d 111 (1979). ² In Johnson, the defendant and his accomplice were observed as they left the scene of a robbery. A witness spotted their getaway vehicle in front of an apartment building five blocks from the scene of the crime, and subsequently informed police that he watched three men run into the apartment building. Investigating officers stationed themselves upon a common area patio attached to the rear of the apartment building where they could peer into the apartment through a four inch gap between curtains on a kitchen window. In effect, the Johnson court found that the opening in the window negated any expectation of privacy from the eyes of the world or of the police.

We agree with our Superior Court that there can be no expectation of privacy when one leaves his windows open or uncovered so that any passerby might peer into one's dwelling with impunity, and we have little trouble in concluding that the same result should apply regardless of where the window or opening is placed in the dwelling.

By installing a...