No. 254 January Term, 1977, Appeal from an order of the Superior Court of Pennsylvania affirming the Judgment of Sentence of the Court of Common Pleas, Centre County at No. 265-1974.
William F. Donovan, State College, for appellant.
C. Kent Price, Asst. Dist. Atty., State College, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., concurred in the result. Roberts, J., filed a dissenting opinion in which O'Brien and Manderino, JJ., joined. Manderino, J., filed a dissenting opinion.
We granted an appeal in this matter from an order of the Superior Court at 242 Pa. Super. 233, 363 A.2d 1246 (1976), affirming a judgment of sentence based upon evidence which appellant contends was obtained as a result of an unlawful search and seizure. The pivotal question is whether appellant had a reasonable expectation of privacy with respect to the contents of certain closed containers stored inside a barn with the consent of the owner's relative who had a limited right to the use of the barn, where the owner of the barn neither knew nor specifically consented to the storage of such containers. For reasons following, we find that appellant had no reasonable expectation that the contents of the closed boxes and footlockers would not be open to inspection and that the owner of the premises had authority to consent to a search of the closed containers. The order of the Superior Court is hereby affirmed.
In reviewing a suppression court's findings, this Court will consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the
context of the record as a whole, remains uncontradicted. Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978), citing Commonwealth v. Harris, 479 Pa. 131, 136, 387 A.2d 869, 872 (1978). The court below summarized the testimony as follows:
"Minnie Bubb was the sole owner of a set of farm buildings which were not used as part of a farming operation. The buildings consisted of a large two-story farmhouse, a woodshed, a shanty, and a large barn, the latter located some 25-30 yards distance from the house. Her niece was married to Robert Hinds, and she rented to Mr. and Mrs. Hinds the one side of the farmhouse for $100 per month, which included utilities. Minnie Bubb resided in the remainder of the farmhouse.
Minnie Bubb never at anytime made any lease, either oral or written, with respect to the barn or any of the out-buildings, but she did from time to time grant permission for relatives to store articles and to utilize lower portions of the barn. Mrs. Hinds kept a horse in the barn prior to her marriage, and, following her marriage, they kept a goat there and parked their car under the barn. Minnie Bubb also gave permission to a brother to store his tractor, lumber, and a lawn mower in the barn, and allowed him to park his truck outside the barn. She never at anytime gave permission to anyone to use the loft, the haymow, or the upper portion of the barn.
Robert Hinds was a friend of the defendant, Bruce Latshaw. Without knowledge, permission or consent of Minnie Bubb, Robert Hinds gave permission to Bruce Latshaw to store and process shipments of marijuana in the hayloft of the barn for $75.00 a shipment. The presence of the defendant and his co-conspirators was explained to Ms. Bubb by informing her that they were college students who were planting a garden and were doing something for a term paper, and that their presence was necessary as a college requirement.
A week before the search and seizure occurred, Minnie Bubb noticed on her brother's truck, parked outside of the
barn, greenish material resembling weeds, which she suspicioned [sic.] to be marijuana. She discussed it with her brother and then called in her sister-in-law, Dora Bubb, who climbed into the loft and discovered a brown paper bag which further confirmed their suspicions, and they then called the police to investigate. Not only did Minnie Bubb give permission to the police authorities to search the area, she actually called them and invited them to do so. The police search which followed uncovered 76 pounds of cured marijuana in bags, cartons and footlockers and, in addition thereto, the police discovered dust masks, a 100-lb. hanging scale, a pair of shears, nets for drying marijuana, a pair of binoculars, masking tape, cord and other processing equipment."
The Fourth Amendment does not preclude a warrantless search of property when consent is given by a person possessing the authority to consent to such search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973); Commonwealth v. Storck, 442 Pa. 197, 275 A.2d 362 (1971). There is no question that Ms. Bubb's consent was voluntarily given and unlike many situations arising in this area, here the police did not seek the permission to search. Thus, the present case is distinguishable from cases in which the government initiated the search, and cases in which there was an element ...