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COMMONWEALTH v. ESHELMAN (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
ESHELMAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Blair County, No. 137 of 1974, in case of Commonwealth of Pennsylvania v. Larry Chester Eshelman.

COUNSEL

Thomas M. Reese, Assistant Public Defender, for appellant.

William J. Haberstroh, Assistant District Attorney, and Amos C. Davis, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J.

Author: Price

[ 236 Pa. Super. Page 224]

Appellant was found guilty on April 8, 1974, by the lower court sitting without a jury of possession of marijuana and possession with intent to deliver marijuana.*fn1 Following the denial of post-trial motions, the appellant was fined $500 and sentenced to a term of not less than 3 months nor more than 22 months in the Blair County Prison.

[ 236 Pa. Super. Page 225]

The facts indicate that appellant lived with his grandmother, Mrs. Smith, in her house in Taylor Township, Blair County, adjacent to the Borough of Roaring Springs. On October 15, 1973, Mr. Norman Decker went to the wooded area behind the property looking for a friend who was training hunting dogs. On his way back to his car, Mr. Decker crossed Mrs. Smith's property. He noticed a car parked in the rear of the property, and walked over to it. Mr. Decker felt the car had been abandoned because it had no license plate, and because grass and weeds had grown up around it.

Mr. Decker glanced into the car and observed rolls or packages of newspaper. Although Mr. Decker was a full time employee of the New Enterprise Stone and Lime Company, he also served, on a part-time basis, as an auxiliary policeman in the Borough of Roaring Springs. As a result of training he had received for his police work, he believed that the packages contained marijuana, which was in the process of being dried. Mr. Decker reached through a partially opened window and retrieved one of the packages.

Mr. Decker took the unopened package to the chief of police of Roaring Springs to have the contents analyzed. The chief could not positively identify the contents, and suggested that the State Police in Hollidaysburg would be better able to identify the substance. Acting on this advice, Mr. Decker proceeded to the State Police Barracks, where the substance was positively identified as marijuana.

Troopers John Winklbauer and William Kephart then secured a search warrant and an arrest warrant and returned to the premises where the marijuana had been found. The search warrant was served on appellant's grandmother who gave the officers permission to search. While the troopers were removing the marijuana from the car, the appellant arrived on the scene. He was immediately placed under arrest and informed of his constitutional

[ 236 Pa. Super. Page 226]

    rights. Appellant admitted the car and the marijuana were his, and informed the officers that there was more marijuana in a nearby shed. Appellant then took the troopers into the shed and helped carry the marijuana outside. Entire plants, weighing approximately 70 pounds, were confiscated.

Appellant now contends that the warrantless search by Mr. Decker was conducted in his capacity as a police officer or at the behest of a sovereign authority, and as such was illegal. Appellant argues that the subsequent warrant was based on illegally obtained information thus tainting all evidence secured under the warrant. Appellant finally argues that even if Mr. Decker was not acting as a police officer, but rather as a private citizen, the search should still come under the proscriptions of the Fourth Amendment to the United States Constitution. We find no merit to appellant's contentions and will, therefore, affirm.

It is well settled that a search by a private individual is not subject to the restraints of the fourth amendment. Burdeau v. McDowell, 256 U.S. 465 (1921); Commonwealth v. Dingfelt, 227 Pa. Superior Ct. 380, 323 A.2d 145 (1974). Although appellant argues that this should not apply in the Commonwealth, we will not overturn previous cases, and, once again, reaffirm this as the law in Pennsylvania.

We are, therefore, concerned only with the question of whether or not Mr. Decker was acting either in his capacity as an auxiliary police officer, or under the control of some government authority. A search conducted by a private citizen may lose its immunity if the police request the search, or if they take an active part in it. Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). However, where the search is conducted solely by a private citizen without police knowledge, and the results are later turned over to a proper law ...


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