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decided: September 27, 1976.


Appeal from the Order of the Court of Common Pleas of Columbia County, Criminal Division, at No. 165 May Term, 1974. NO. 1680 OCTOBER TERM, 1975.


Gailey C. Keller, Bloomsburg, for appellant.

Thomas Arthur James, Jr., Berwick, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Van Der Voort

[ 242 Pa. Super. Page 341]

On July 1, 1974, appellee George Janek and a companion, a minor, were arrested by Pennsylvania State Policemen John Parcell and John Freed, while leaving a field belonging to Janek's mother, Mrs. Lillian Sukup. The field was not visible from the nearest public road, and was posted with "No Trespassing" signs signed by Mrs. Sukup's husband. The field contained a tent, various gardening implements, approximately two hundred live marijuana plants, and a five or ten pound can of Miracle Grow fertilizer. Appellee was charged with possession

[ 242 Pa. Super. Page 342]

    with intent to manufacture or deliver drugs, and with unlawful possession of a controlled substance. Appellee filed a timely motion to suppress all evidence obtained by the police in connection with the arrest, which motion was granted by the lower court on June 5, 1975. The Commonwealth took this direct appeal to our Court from the lower court's Order granting the suppression motion. We find that the lower court erred in granting the motion, and we reverse.

Appellee argues that the police were unlawfully on his mother's property, and that all evidence discovered by the police while there should be inadmissible against him. We disagree. In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), federal revenue agents on private land without a search or arrest warrant, observed petitioner Charlie Hester drop a jug of moonshine. The Supreme Court stated: "It is obvious that even if their had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant's own acts, and those of his associates, disclosed the jug, the jar, and the bottle -- and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. . . . The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." 265 U.S. at 58-59, 44 S.Ct. at 446. Hester has not been overruled, and in fact has been cited by the Supreme Court in recent cases, including Air Pollution Variance Board v. Western Alfalfa, 416 U.S. 861, 865, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). We believe that the situation in the case before us is essentially the same as the situation in Hester, and we find that officers Parcell

[ 242 Pa. Super. Page 343]

    and Freed were justifiably in position to observe the illegal acts and to seize the marijuana and gardening implements.

Even if we were to conclude that Hester is distinguishable from the case before us, or that it no longer has legal validity in light of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), (the conclusion drawn by the lower court in granting appellee's suppression motion), we find that the police were on the property with the consent of the husband of the record owner, and we would still find it necessary to reverse. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the joint user of a duffel bag gave permission to police officers to search the bag. The resulting search disclosed evidence which was used to convict the owner of the bag of second degree murder. The Supreme Court held that the joint user of the bag "clearly had authority to consent to its search," and that the petitioner "assumed the risk that [the joint user] would allow someone else to look inside." 394 U.S. at 740, 89 S.Ct. at 1425. In the case before us, appellee's step-father, a person married to and residing with the record owner of the property, requested that the police check the property in question in order to prevent further vandalism. Although the record owner of the property testified that she had not consented at any time to the presence of the police on the property, and that to the best of her knowledge her husband had never given any consent, the woman also testified, in apparent contradiction: "[a]fter the fire, we were refused protection by the State Police." State Police ...

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