No. 2391 October Term, 1976, Appeal from Order Supressing the Commonwealth's Evidence of the Court of Common Pleas of Montgomery County, Criminal, No. 886, January Term, 1976 and No. 1596-1976.
P. Stephen Lerario, Assistant District Attorney, with him William T. Nicholas, District Attorney, Norristown, for Com., appellant.
E. William Heuser, Norristown, for appellee, Rovanna Best-Bey.
Richard C. Sheehan, Norristown, submitted a brief for appellees, Nathaniel Best-Bey, Tyrone Elwood Scott and Vernon Mayes.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion, in which Jacobs, President Judge, joins. Hoffman, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case. The decision in this case was made prior to the retirement of Hoffman, J.
[ 258 Pa. Super. Page 479]
The Commonwealth has charged the defendants, appellees, with numerous counts of theft of movable property, theft by receiving stolen property, criminal mischief, criminal conspiracy and possession of motor vehicles with defaced
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serial numbers. Defendants made an application to suppress certain evidence, which they alleged was acquired by the Commonwealth as a result of an illegal search and seizure. After hearing upon the application the court below suppressed the evidence, which ruling for all practical purposes effectively terminated or substantially handicapped the prosecution of the charges. The Commonwealth has appealed.
On or about December 22, 1975, Trooper John T. Hennessey was told by a citizen who is a respected member of the community that surreptitious activities were taking place at a location known as the Old Mill in Upper Salford Township, Montgomery County, near the intersection of Quarray Road and Salford Station Road. Having been alerted to this activity, Trooper Hennessey on January 1, 1976, went to the premises at the location described by the informing citizen. There he noted that there was a large rectangular 2-story building located adjacent to Old Reading Railroad tracks, from which the rails had been dismounted. The lower half of the building was constructed of green cinder block with a wooden frame upper half and with a roof partly of metal and partly of roofing shingles. The property was owned by one Geoffrey Loughrey. The railroad tracks used to be a siding for the building. It was now used as a roadway up to and alongside the building. The premises were not fenced; there was no gate or other deterrent to entry. On the said January 1st, 1976, Trooper Hennessey visited the grounds; he saw a G.M.C. truck having a blue cab and a silver colored body parked on the old railroad bed. The Officer took the vehicle identification number (V.I.N. number, the same as the Manufacturer's number) from that truck. Further investigation disclosed that the truck was registered to Rovanna Best (who is the same person as Rovanna Best-Bey, one of the appellees) of Philadelphia.
On January 9, 1976, Trooper Hennessey along with Corporal DiStefano returned to the property and obtained from some vehicles parked outside of the building additional V.I.N. numbers. One was from a 1972 Ford pick-up truck
[ 258 Pa. Super. Page 481]
parked outside of the overhead doors, which was the main working entrance to the Old Mill. The Ford truck registration had been issued to a person named PETRELLIS, of 719 Crestview Street, Philadelphia, and the truck had been reported stolen on September 8, 1975. On January 16, 1976, three officers revisited the premises and noted that at the rear of the G.M.C. truck were five (5) motor vehicle engines, (4 truck and 1 automobile), covered by a canvas cover. An examination of these engines disclosed that one had a V.I.N. number -- 6L47S4Q423194 -- belonging to a 1974 Cadillac El Dorado, stolen from the King of Prussia shopping center in Upper Merion Township, Montgomery County, on December 24, 1975. The investigations by the officers were carried on in the night time. None of them entered the Old Mill building until a search warrant had been obtained, as will be described infra. On January 10, 1976, Trooper Hennessey had again contacted the informing citizen who said that a Cadillac automobile arrived at the Old Mill on a flat bed truck. It was parked outside for a few days and then taken inside and was never seen again. On February 2, 1976, Rovanna Best-Bey was seen leaving the Old Mill premises in a dump truck. The vehicle was loaded with automotive parts and assorted body parts. On February 6, 1976, he was observed leaving the area operating a red dump truck, again loaded with automobile body parts. On February 9, 1976, Rovanna Best-Bey and another black male were observed leaving the Old Mill with automotive parts loaded on the back of a 1967 Ford truck. Registration for this vehicle had been issued to Rovanna Best.
A title search from a 1974 Chevy Truck revealed that it was bought by Best from the Underwriters Salvage Co., in Runnemede, New Jersey, which the salvage company had bought for junk on May 10, 1974. The V.I.N. number had been removed from the salvage vehicle and placed on another vehicle which was in good condition.
Armed with this information, Trooper Hennessey applied for and received a search warrant for the premises which was executed on February 10, 1976, at five minutes to four
[ 258 Pa. Super. Page 482]
p.m. The El Dorado engine, the Petrellis truck and the Ford IV wheel drive frame with the V.I.N. number welded over were still on the premises. The Petrellis truck had a V.I.N. number when the officer first saw it, but on February 10th it had no such number. Subsequent search warrants were issued also, as the investigation developed further unlawful activity, on six (6) additional occasions, i.e., February 11th, February 12th, February 18th, February 26th, March 16th, and March 19th, 1976. Rovanna Best-Bey was present on February 26, 1976.
By February 9, 1976, Trooper Hennessey believed he had enough knowledge and information about this operation at the Old Mill to justify making an application for a search warrant. On February 10, 1976, he applied for and secured a search warrant. He recited as probable cause the following:
"On or about 22 Dec 75, reporting officer was contacted by a confidential informant who related that criminal activity was taken place at a large warehouse located in Salford Station, Montgomery County Penna. The informant stated that several new trucks and motor vehicles were seen being taken into the building and bright lights and smoke being emitted from the shop as though the vehicles were being dismantled. The informant stated that the building was located parallel to the Reading Railroad tracks approximately 500 feet from the intersection of Quarry Rd., and Salford Station Rd., in Salford Station, Upper Salford Twp., Montgomery County Penna. On 1 Jan 76, reporting officer accompanied by Sgt. Daniel MONKIEWICZ., proceeded to Salford Station, Penna., and observed a building, green in color at the above mentioned location. The building is a two story rectangular building. The bottom half is cinder block with a wood frame upper half. The building has a part metal roof and part roofing shingles. The property is owned by one Geoffery LAUGHERY, Salford Station Rd., Salford Station Penna. A registration number was obtained from the G.M.C. truck, sivler (sic) enclosed box, parked on the old
[ 258 Pa. Super. Page 483]
railroad bed. The number was Penna. CK90933. The vehicle was registered to Rovanna BEST 3125 Natrona St., Philadelphia Penna. A criminal records check was made with the Philadelphia Police Department. The subject BEST has a criminal record involving a large number of arrests for theft of motor vehicles, receiving stolen property and related offences. His last arrest is listed as 12/28/74, 13 counts of theft of motor vehicles etc. The subjects correct name is Rovanna Best BEY. A check with the Motor Vehicles Bureau revealed that the subject has 12 vehicles registered to him in the name of Rovanna BEST. The subject aslo (sic) is in possession of a Pennsylvania Operators License in the name of Rovanna BEST.
On 9 Jan 76, reporting officer and Tpr. Albert DeSTEFANO, P.S.P. conducted a surveillance of the building known sa (sic) the old mill. VIN number F10YEP85341 was obtained from a green Ford Truck, 1972 model, issued to Petrellis 719 Crestview St., Philadelphia Penna., reported stolen on 9/8/75., from the city of Philadelphia, Penna.
On 16 Jan 76, a surveillance of the old mill was conducted by Tprs. Richard PREBULA, and David MOTKO. a VIN number was obtained from a motor and transmission which was located behind the G.M.C. Truck on the old railroad bed under a canvas cover. The number was 6L47S4Q423194. The vehicle, a 1974 Cadillac was reported stolen from the King of Prussia Shopping Center, Upper Merion Twp., Montgomery County Penna., on 12/24/75. The owner of the vehciel (sic) is one Joseph R. PEARL of CURTI Dr., Southampton, Penna.
On 10 Jan 76, reporting officer contacted informant who stated that a Cadillac vehicle arrive (sic) at the old mill on a flat bed truck. The vehicle was parked outside of the building for several days and then taken inside. The vehicle was not seen again. The informant stated that smoke was emitted from the vent system of the building indicating that cutting or burning was being done inside of the building.
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On 2 Feb 76, the subject BEST was observed leaving the 'Old Mill' with a red dump truck. The vehicle was loaded with automobile parts, mostly fenders and assorted body parts.
On 6 Feb 76, the subject BEST was again observed leaving the area operating a red dump truck again loaded with automobile body parts.
On 9 Feb 76, the subject BEST and another black male were observed leaving the warehouse with automotive parts loaded on the back of a 1967 Ford Tk., bearing Penna. registration CL47520. the vehicle is issued to Rovanna.BEST. On the night of 9 Feb 76, a surveillance was conducted of the location and it was determined that the engines to the rear of the silver box truck bearing Pennsylvania registration CK90933, located on the old railroad bed adjacent to the 'OLD MILL'., are still in that location.
A title search of the 1974 Chevy Tk. VIN CCY244 B154292, bearing registration CT51486 was bought by BEST from the Underwriters Salvage Company, Black Horse Pk., Runnemede, New Jersey. New Jersey Motor Vehicle Division records revealed that the vehicle was previously owned by Wayne C. INGMAR 517 Franklin Ave., Cherry Hill, New Jersey. The local police agency varified (sic) that the vehicle was sold to the salvage company for junk on 5/10/74. This information indicates that the VIN number of the salvage vehicle was removed and placed on another vehicle in good condition, possibley (sic) a stolen vehicle.
The informant is a concerned citizen who is a respected member of the community."
The defendants-appellees claim that the visits which the State police made to the Old Mill premises were an unreasonable search and violated their Fourth Amendment rights under the U.S. Constitution, that they had a reasonable expectation of privacy of such magnitude as to preclude the elementary kind of investigation which the state troopers made upon the premises which they, the defendants, occupied.
[ 258 Pa. Super. Page 485]
With this claim we disagree. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) the court said among other things: "We have recently held that 'the Fourth Amendment protects people, not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 . . . (1967) and where ever an individual may harbor a reasonable 'expectation of privacy,' id., at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 588 (Mr. Justice Harlan concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is ...