Commonwealth v. Laskovich, 110819 PACCA, 1556 C.D. 2018

Docket Nº:1556 C.D. 2018, 1557 C.D. 2018
Opinion Judge:ELLEN CEISLER, JUDGE
Party Name:Commonwealth of Pennsylvania, Appellant v. Keith Robert Laskovich
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
Case Date:November 08, 2019
Court:Commonwealth Court of Pennsylvania
 
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Commonwealth of Pennsylvania, Appellant

v.

Keith Robert Laskovich

Nos. 1556 C.D. 2018, 1557 C.D. 2018

Commonwealth Court of Pennsylvania

November 8, 2019

OPINION NOT REPORTED

ARGUED: October 3, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

MEMORANDUM OPINION

ELLEN CEISLER, JUDGE

The Commonwealth of Pennsylvania appeals from an order entered on March 19, 2018 in the Court of Common Pleas of the Fifty-Ninth Judicial District, Elk County Branch (trial court).1 The trial court suppressed evidence in the form of a game camera seized without a warrant by a wildlife conservation officer of the Pennsylvania Game Commission, as well as photographic evidence subsequently removed from the camera pursuant to a search warrant. After thorough review, we reverse.

I. Background

In April 2016, wildlife conservation officer Jason M. Wagner (Wagner) was walking the state game lands in Elk County in the vicinity of a camp owned by Keith Robert Laskovich (Laskovich). Wagner noticed hay scattered on the state game lands, five-gallon buckets fastened to the bases of trees, elk droppings and tracks, and a driveway motion sensor on Laskovich's driveway. Based on these indicators, Wagner believed someone might be illegally feeding elk. Laskovich was not present at that time. Wagner returned in May 2016, discussed his prior observations with Laskovich, and verbally warned Laskovich not to feed elk.

In January 2017, Wagner was driving with a deputy officer in the vicinity of Laskovich's camp. Wagner was able to see from his vehicle on a public road that several bull elk were feeding on something in the yard behind Laskovich's cabin. Wagner parked the vehicle and walked with the deputy officer through the state game lands to the back edge of Laskovich's property, which abuts the state game lands. From the state game lands, Wagner could see that the elk were feeding on several piles of corn that had been placed in Laskovich's yard. Wagner also noticed a game camera strapped to a tree with bungee cords. The game camera was pointed directly at the spot where the elk were feeding. The tree to which the game camera was attached had a white game lands boundary marker on it. The game camera had no name tag or other information identifying its owner.

Wagner seized the game camera. Because the camera also had a view of the back door of Laskovich's cabin, Wagner obtained a search warrant before removing the memory card from the game camera and viewing the images it contained.

Laskovich was charged with feeding elk. He moved to suppress Wagner's seizure of the game camera, as well as the photographic evidence obtained from the game camera. The trial court held a suppression hearing, at which the evidence included expert testimony from a surveyor that the tree containing the game lands boundary marker was actually 2.62 feet inside Laskovich's property line. The trial court granted the suppression motion. This appeal by the Commonwealth followed.

II. Issues

On appeal, 2 the Commonwealth argues Wagner's seizure of the game camera did not violate Laskovich's constitutional rights under either the United States Constitution3 or the Pennsylvania Constitution.4 The Commonwealth posits that although Laskovich may have had a privacy interest in the contents of the game camera's memory card (which interest was protected by obtaining a search warrant), he had no reasonable expectation of privacy in the camera itself. The Commonwealth further asserts that Laskovich exhibited no expectation of privacy because he did not secure the game camera with a lock and did not attach any indicia of his ownership. The Commonwealth contends no unlawful search or seizure occurred when Wagner removed the game camera from a tree marked with a white game lands boundary line stripe. The Commonwealth also argues the seizure was proper because the game camera was in plain view, and additionally because it was not within the curtilage of Laskovich's property.

Laskovich insists the Commonwealth violated his constitutional rights because Wagner's conduct did not satisfy the requisite elements of the plain view doctrine. Laskovich further asserts there were no exigent circumstances to justify a warrantless seizure of the game camera. Accordingly, although the search of the memory card occurred pursuant to a search warrant, Laskovich argues the trial court properly suppressed the contents of the memory card as fruit of the poisonous tree, 5based on the purportedly improper seizure of the game camera.

III. Discussion

A. Reasonable Expectation of Privacy

A defendant asserting that a warrantless seizure violated his...

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