Thomas M. Reese, Reese & Wilt, Martinsburg, for appellant.
William J. Haberstroh, D. Brooks Smith, Asst. Dist. Attys., Hollidaysburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case.
Appellant Larry Chester Eshelman was convicted by a judge sitting without a jury of possession of a controlled substance with intent to deliver.*fn1 His post-verdict motions were denied, and he was fined $500.00 and sentenced to a prison term of not less than three nor more than twenty-two months. On direct appeal the Superior Court affirmed.*fn2 Commonwealth v. Eshelman, 236 Pa. Super. 223, 345 A.2d 286 (1975). We granted Eshelman's petition for allowance of appeal, and this appeal followed.
Eshelman contends that the trial court erred in refusing to suppress as the product and fruit of an unconstitutional search and seizure evidence used against him at his trial. During his pretrial suppression hearing, at which the only witnesses were the Commonwealth's,*fn3 testimony indicating the following facts was presented.
On the afternoon of October 15, 1973, Glenn Norman Decker, an off-duty auxiliary policeman*fn4 in the borough of Roaring Spring, Blair County, went in search of a friend who was running his dogs in the woods behind the home of Eshelman's grandmother, Margaret Smith, where Eshelman also resided. The Smith property was located in Taylor Township, a short distance from the adjoining community of Roaring Spring. After talking with his friend, Decker, without permission, crossed the Smith property. Behind the house near the edge of the woods he noticed an old Cadillac, surrounded by weeds and without tags, which he knew had belonged to Eshelman. Through the windows of the car he observed that it contained a number of thin packages or rolls; the contents of the packages, wrapped in newspaper and tied with string, were not visible. Decker, however, recalled that he had heard a talk at his police station which indicated that this was a common method of wrapping and drying marijuana, and he became suspicious that the packages contained marijuana. He therefore reached inside a partially open window of the car, extracted one of the packages and, without opening it or examining its contents, took it to the police station at Roaring Spring and showed it to the chief of police, under whom he worked when on active duty. The chief then made arrangements by telephone for Decker to take the package to Trooper Winklbauer at the state police barracks at Hollidaysburg.
Accordingly, Decker brought the package to the state police barracks and turned it over to Trooper Winklbauer, who tested the contents and concluded the package contained marijuana. As a result of this information, Winklbauer sought and obtained a warrant to search the Cadillac. He then went to the Smith property, served the warrant on Mrs. Smith, searched the car, and removed from it other packages containing plants similar to the one removed by Decker. While searching the car, he also observed through the open door of a nearby shed other similar packages,
but he did not then examine them. At this point Eshelman arrived, and Winklbauer arrested him and advised him of his rights. Eshelman admitted that both the car and the plants it had contained belonged to him. He also admitted that the plants inside the shed were his, stated "you might as well get them all," and helped the officer remove them.*fn5
On the basis of this testimony, the suppression judge found that at the time he removed the marijuana from Eshelman's car, Decker was not on duty as an auxiliary policeman and "was not acting under the direction of any sovereign or police authority." He concluded that Decker's search and seizure, "while possibly constituting a civil trespass by a private citizen, [did] not constitute an unlawful search and seizure conducted under unlawful authority," and that therefore the evidence seized by Decker and the evidence subsequently obtained as a result of Decker's seizure need not be suppressed. In affirming, the Superior Court majority noted that the suppression judge, in his capacity of trier of fact, chose to believe the testimony of Decker that he was not searching for marijuana or acting under police orders when he trespassed upon the Smith property, observed that ...