Com. v. Russo

Citation934 A.2d 1199
Decision Date20 November 2007
Docket NumberNo. 135 MAP 2005.,135 MAP 2005.
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Joseph RUSSO, Jr., Appellant.
CourtPennsylvania Supreme Court

Andrew D. Bigda, Esq., Wilkes-Barre, for Joseph Russo, Jr.

George Paul Skumanick, Jr., Esq., for Commonwealth of Pennsylvania.



Justice CASTILLE.*

We granted allowance of appeal in the instant case to determine whether, under Article I, Section 8 of the Pennsylvania Constitution, a landowner has a reasonable expectation of privacy against enforcement of Pennsylvania's Game Code in his open fields. Because we conclude that the Fourth Amendment open fields doctrine as enunciated by the United States Supreme Court in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) applies equally under the Constitution of this Commonwealth, we affirm, albeit on different grounds, the order of the Commonwealth Court.

At 6:45 a.m. on November 25, 2002, nine minutes after the opening of Pennsylvania's bear-hunting season, appellant Joseph Russo, Jr., claimed to have killed a bear near his hunting cabin in Mehoopany Township, Wyoming County. Pursuant to Section 2323(a)(2) of the Game Code,1 appellant transported the bear to the Game Commission station in Dallas for examination and tagging. Later that day, the Game Commission received a tip that appellant's hunting camp was "baited" in violation of Section 2308(a)(8) of the Game Code.2 The information was relayed to Wildlife Conservation Officer (hereinafter "WCO") William Wasserman, who, in turn, directed Deputy WCO William Jeffrey Pierce to go to appellant's camp to investigate.3

Upon arriving after dark at approximately 6:00 p.m., WCO Pierce found appellant's camp apparently unoccupied. Appellant's property was clearly posted with "No Trespassing" signs. After parking his truck, Officer Pierce stepped over a cable across the driveway and walked approximately six hundred feet toward appellant's cabin until he observed, in plain view, an eight- by ten-foot pile of "apple mash"4 located about ninety feet from the cabin. The officer also noticed in the apple mash a large indentation consistent with a bear having lain there, a clearly identifiable bear paw print, and leaves with blood droplets. Officer Pierce called Officer Wasserman and informed him of the bait pile. Pursuant to Officer Wasserman's instructions, Officer Pierce seized the bloody leaves as evidence. Continuing his investigation, Officer Pierce discovered a second pile of apple mash as well as a corn feeder approximately one hundred fifty yards from appellant's cabin. Finally, Officer Pierce returned to his vehicle and drove down a dirt road about four hundred yards into the woods.5 After parking his truck, the officer got out and found what he recognized as bear entrails. Although the rest of the body was not at the location, an examination of the entrails revealed that the bear had recently eaten corn and mashed apples. The officer then seized the bear's stomach and its contents as evidence.

Meanwhile, once Officer Pierce had informed him of the bait pile, Officer Wasserman contacted Officer James Jolley, a WCO stationed in Luzerne County, where appellant maintained his residence. Officers Wasserman and Jolley, accompanied by two deputy WCOs, proceeded to appellant's home in Pittston. Upon pulling into appellant's driveway, the officers observed a dead black bear carcass hanging from a piece of construction equipment. When the officers knocked on appellant's door, he answered and invited them in. In response to their questioning, appellant indicated that he was aware of the bait at his camp but asserted that the bear was not shot at either of the bait piles. The officers then seized the bear carcass as evidence and departed.

Officers Pierce and Wasserman returned to appellant's camp the next morning to take photographs and measurements and to gather additional evidence. At the first apple mash pile discovered by Officer Pierce, the officers found and seized a small piece of bear tissue. A forensic DNA analysis subsequently performed by the United States Fish and Wildlife Service established that all the blood and tissue recovered by the officers in the course of their investigation came from the bear whose carcass was seized at appellant's residence. Thereafter, appellant was charged with two summary violations of the Game Code: Unlawful Taking or Possession of Game or Wildlife, 34 Pa. C.S. § 2307;6 and Unlawful Devices and Methods, 34 Pa.C.S. § 2308, see supra. After being found guilty of both offenses before a district judge, appellant appealed to the Court of Common Pleas of Wyoming County.

Prior to trial de novo before President Judge Brendan J. Vanston, appellant filed a motion to suppress the evidence seized by Officers Pierce and Wasserman, challenging the legality of their entry onto and search of his property under Article I, Section 8 of the Pennsylvania Constitution. On March 31, 2004, the trial court held a suppression hearing, which the court consolidated with appellant's trial de novo, and denied the motion. Officers Pierce and Wasserman testified for the Commonwealth, describing in detail the course of the investigation they conducted on November 25 and 26, 2002. Appellant's case-in-chief consisted primarily of the testimony of his neighbor to the effect that apple trees were located on land near appellant's property. At the conclusion of the trial, the court convicted appellant of the two offenses and ordered him to pay $1,000 in fines, $2,599.87 in restitution, and the costs of prosecution.

The trial court found "[b]ased on the testimony of the officers and the photographic evidence presented" that "the nearest bait pile is not within the curtilage of [appellant's] cabin." Trial Ct. Op. at 5. Consequently, the court rejected appellant's argument that Article I, Section 8 prohibited the officers' warrantless search of the fields where the bait piles were found. "To rule otherwise," the court reasoned, "would emasculate the enforcement of the Game Code on any privately owned realty, as one would only have to post `no trespassing' signs to keep out the game wardens." Id. The court stated that such a result would be absurd and a result that the constitutional framers surely did not intend. Appellant appealed to the Commonwealth Court, pursuing his suppression claim.

On January 7, 2005, a three-judge panel of the Commonwealth Court unanimously affirmed the order of the trial court. Commonwealth v. Russo, 864 A.2d 1279 (Pa.Cmwlth.2005). In a published opinion authored by the Honorable Renée Cohn Jubelirer, the court held that, under Article I, Section 8 of the Pennsylvania Constitution, appellant did not have a reasonable expectation of privacy in the property upon which the bait piles were found. The court began and ended its analysis with appellant's argument that the "No Trespassing" signs that he posted created a reasonable expectation of privacy in the property. Thus, the court noted that a person does not commit trespass if he is "licensed or privileged to . . . enter[ ][the] place as to which notice against trespass is given." Id. at 1284 (quoting 18 Pa.C.S. § 3503(b)(1)(ii) (defining the offense of criminal trespass) (emphasis omitted)). Turning to the Game Code, the court observed that Section 901(a)(2) specifically authorizes a WCO to "go upon any land or water outside of buildings, posted or otherwise, in the performance of the officer's duty." Id. (quoting 34 Pa.C.S. § 901(a)(2)). Therefore, the court concluded, "[appellant]'s posting of the signs cannot form the basis of a reasonable expectation of privacy[ ] [because] it would be unreasonable for him to expect that game officers, who are privileged to enter the land, would not do so to assure compliance with the Game Law." Id. at 1285. Indeed, the Commonwealth Court agreed with the trial court's observation that, otherwise, "criminals could very easily carry on illegal enterprises by merely placing `No Trespassing' signs around the perimeter of their property." Id. Finally, in a footnote, the court noted the Commonwealth's reliance on the open fields doctrine as set forth in Oliver, supra, but determined that it was unnecessary to decide whether the doctrine applied under the Pennsylvania Constitution because of the court's holding in the case. Id. at n. 13.

Appellant petitioned this Court for allowance of appeal. On November 22, 2005, we granted appellant's petition and directed the parties to address the following issue: "Whether 34 Pa.C.S. § 901(a)(2) is unconstitutional because Article I, Section 8 of the Pennsylvania Constitution provides a landowner with a reasonable expectation of privacy in his posted property." Commonwealth v. Russo, 585 Pa. 1, 887 A.2d 1212 (2005).

Our standard of review of a trial court's denial of a suppression motion is well established:

[W]e may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 89 (2004). An appellate court, of course, is not bound by the suppression court's conclusions of law. Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455, 459 (2003).

The open fields doctrine was first recognized by the U.S. Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In that case, while surveilling the home of Hester's father (where Hester lived), two revenue officers observed Hester exit the house and hand a quart bottle to an individual whom the officers suspected to be attempting to purchase illegal bootleg whiskey....

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