Com. v. Weik

• Decision Date: 10 February 1987
• Citation: 521 A.2d 44,360 Pa.Super. 560
• Parties: COMMONWEALTH of Pennsylvania v. Scott A. WEIK, Appellant.
• Court: Pennsylvania Superior Court

Page 44

521 A.2d 44

360 Pa.Super. 560

COMMONWEALTH of Pennsylvania v. Scott A. WEIK, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 24, 1986.

Filed Feb. 10, 1987.

Peter D. Maynard, Reading, for appellant.

Rosamond A. Presby, Asst. Dist. Atty., Lebanon, for Com., appellee.

Before TAMILIA, HOFFMAN and HESTER, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for maintaining a slot machine for gambling purposes, 18 Pa.C.S.A. § 5513(a)(1). Appellant contends that the lower court erred in refusing to suppress evidence seized by police following a warrantless entry into a building on his property. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was charged with maintaining a slot machine for gambling purposes, in violation of 18 Pa.C.S.A. § 5513(a)(1). Prior to trial, appellant moved to suppress the slot machine that was seized pursuant to a warrantless entry of a building on his property. The motion was denied, and appellant was later found guilty following a jury trial. Appellant was sentenced to a twenty-three-month term of probation, and this appeal followed.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant's rights. The burden of proving the admissibility of the evidence lies on the Commonwealth's shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence.... On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court's findings of fact....

In considering whether the record supports the court's finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.... In addition, where the suppression court's findings are amply supported by the record they may not be disturbed on appeal....

Commonwealth v. Eliff, 300 Pa.Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted). See also Commonwealth v. Rispo, 338 Pa.Superior Ct. 225, 227-28, 487 A.2d 937, 938 (1985).

Viewed in the light most favorable to the Commonwealth, the facts are as follows:

In the early morning hours of April 28, 1985, two North Lebanon Township police officers saw a bonfire on appellant's property. Suspecting that the fire was in violation of a local ordinance, the officers returned to the police station, discovered that appellant did not have a permit for such a fire, and determined that he was in violation of the ordinance. The officers therefore returned to appellant's property, saw that the fire was still burning, and entered onto the property to tell appellant to extinguish it. A house, a detached garage, and a detached shed are located on appellant's property. As they approached, the officers saw appellant walk away from the fire and enter the shed. There were windows in the shed which were not covered by curtains. Through the uncovered windows, the officers saw three slot machines against a wall, and saw a companion of appellant attempting to cover the machines. Appellant then walked out of the shed and approached the officers. The officers told appellant that they were there to investigate the fire, but that they had also seen the slot machines. The officers then announced that they were going in to take a closer look at the machines and, over appellant's objection, entered the shed and seized the machines.

Appellant contends that his fourth amendment rights were violated when the police officers entered his building without a warrant and seized his slot machines. "In general, where practical the police are required to obtain a search warrant. Warrantless searches are per se unreasonable, subject only to a few, limited exceptions." Commonwealth v. Gabrielle, 269 Pa.Superior Ct. 338, 344-45, 409 A.2d 1173, 1177 (1979) (citations omitted). See also Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. Rispo, supra, 338 Pa.Superior Ct. at 230, 487 A.2d at 939; Commonwealth v. Morrison, 275 Pa.Superior Ct. 454, 457, 418 A.2d 1378, 1379 (1980) (en banc). When police officers who are "justifiably at the scene [see] contraband in plain view," however, the observation "is not a search within the meaning of the Fourth Amendment.... [and] no warrant is required." Commonwealth v. Getz, 236 Pa.Superior Ct. 469, 472, 344 A.2d 686, 687 (1975) (citations omitted).

The Commonwealth argues, and the lower court held, that the warrantless seizure here was lawful because the officers were legitimately on appellant's property, and then saw the machines in plain view. "Under the plain view doctrine, the cases fall into two distinct categories." Commonwealth v. Chiesa, 329 Pa.Superior Ct. 401, 405, 478 A.2d 850, 852 (1984). The first line of cases

involves those situations in which the "view" takes place after an intrusion into a constitutionally protected area. Under this line of cases if the original intrusion is justified, such as by consent, hot pursuit, warrant or other, objects sighted in plain view will be admissible, ... so long as the view was inadvertent.

Commonwealth v. Adams, 234 Pa.Superior Ct. 475, 479, 341 A.2d 206, 208 (1975) (emphasis in original) (citations omitted). See also Commonwealth v. Chiesa, supra. The second line of cases

involves situations where the view takes place before any intrusion into a constitutionally protected area. These cases are distinguishable from the first line of cases in two respects. First, because no intrusion into a constitutionally protected area takes place, fourth amendment rights are not involved and the requirement that the view be inadvertent is not applicable. Secondly, the warrantless seizure of evidence cannot be justified by the plain view alone....

It is generally held that the mere looking at that which is open to view is not a search.... [Thus,] [i]n those situations in which no intrusion into a constitutionally protected area occurs, no search is made....

The second distinction in this line of cases is that the warrantless seizure of evidence cannot be justified by the plain view alone. This was clearly stated in Coolidge v. New Hampshire, [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ]. "[P]lain view alone is never enough to justify the warrantless seizure of evidence.... [E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure." Id. at 468 (emphasis in original). Thus, in those cases in which the view precedes an intrusion into a constitutionally protected area the officer must be able to rely upon exigent circumstances ... or he must obtain a warrant before he seizes the evidence.... This rule is contrary to the rule in the after-intrusion line of cases. In those cases because the justifiable intrusion already has occurred, no further intrusion is occasioned by the seizure of evidence which is in plain view and the seizure is permitted without more.... In the pre-intrusion view cases no intrusion is occasioned by the view and the intrusion necessary to seize evidence must be justified by a warrant or one of the exceptions to the warrant requirement....

Commonwealth v. Adams, supra, 234 Pa.Superior Ct. at 480-82, 341 A.2d at 210-11 (emphasis added) (citations omitted). In applying the above guidelines, we must keep in mind that

the application of Fourth Amendment coverage must often be analyzed separately with respect to the initial observation and subsequent seizure of the same article. Thus, while the visual observation of an article may not violate any reasonable expectation of privacy, and thus obviate the application of the Fourth Amendment, the seizure of the same article may trigger the protection of the Fourth Amendment.

Commonwealth v. Milyak, 508 Pa. 2, 6, 493 A.2d 1346, 1348 (1985) (citations omitted).

In summary, then, analysis of the lawfulness of the seizure in the instant case requires us to determine whether the record supports the suppression court's findings that (1) the police had legitimate reason to be on appellant's property when they viewed the machines; (2) their sighting of the machines falls under the plain view doctrine; and (3) the subsequent entry and seizure of the machines was lawful under the plain view doctrine. Here, upon review of the suppression testimony, we agree with the Commonwealth and the lower court that the officers were legitimately on the premises and that, once the officers were on appellant's property, they saw the machines in plain view. We find, however, that the lower court erred in assuming that the officers' mere sighting of the machines justified the subsequent warrantless entry into the shed and seizure of the slot machines.

On the night in question, the officers had reason to believe that appellant was in violation of a local ordinance which prohibits the burning of recreational fires at night. N.T. August 6, 1985 at 5-6. They then properly entered upon appellant's property to enforce the ordinance. Id. at 6. Once the officers were thus legitimately on the premises to enforce the ordinance, they saw, from a distance of about fifty feet, id. at 29, the slot machines, which were plainly visible through the uncurtained window in the shed. Id. at 7. Because the officers were lawfully in position to make this view, the observation was not an "intrusion into a constitutionally protected area," Commonwealth v. Adams, supra, and...