Appeal from order of Court of Common Pleas of Mercer County, June T., 1968, No. 9, in case of Commonwealth of Pennsylvania v. John Lloyd Hernley et al.
Robert F. Banks, Assistant District Attorney, with him Edward M. Bell, District Attorney, for Commonwealth, appellant.
Herman M. Rodgers, with him Rodgers, Marks and Marks, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Concurring Opinion by Hoffman, J. Dissenting Opinion by Montgomery, J.
[ 216 Pa. Super. Page 177]
This is an appeal by the Commonwealth from an order of the court below suppressing all evidence obtained
[ 216 Pa. Super. Page 178]
under a search warrant on the grounds that the warrant was issued upon information received as a result of an unconstitutional search and seizure.*fn1 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:
Some time 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,*fn2 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,
[ 216 Pa. Super. Page 179]
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 (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 (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. Superior Ct. 1, 4-5, 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 ...