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filed: March 21, 1980.


No. 1404 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Chester County, at No. 2049-77, Criminal Division.


William R. Hagner, Assistant District Attorney, Paoli, for Commonwealth, appellant.

Fred T. Cadmus, III, West Chester, for appellee.

Cercone, President Judge, and Price, Van der Voort, Spaeth, Hester and Wieand,*fn* JJ. Spaeth, J., files a concurring opinion in which Wieand, J., joins.

Author: Price

[ 275 Pa. Super. Page 456]

The instant appeal by the Commonwealth is from an order by Judge Thomas A. Pitt, Jr., of the Chester County Court of Common Pleas, suppressing evidence seized pursuant to a warrant executed at appellee's residence. After reviewing the record, we find no violation of appellee's fourth amendment right to be free from an unreasonable search and seizure, and reverse the order of the trial court.

During the first week of October 1977, Trooper Clifford Shaw, a narcotics investigator with the Pennsylvania State Police, went to the residence of appellee in West Goshen Township, Chester County. Appellee was not at home, and Trooper Shaw spoke with his sister. The trooper stated to appellee's sister that he had heard that appellee was in the process of converting a barn located on the premises into a home, and misrepresented that he was contemplating a similar conversion of a barn that he owned. He requested permission to examine the structure to get an idea how the work should be performed. The trooper was in plain clothes and at no time did he identify himself as a member of the Pennsylvania State Police. Permission was granted, and Trooper Shaw examined the outside of the barn, although he did not venture inside. No incriminating evidence was obtained. The trooper did not explain why he was investigating appellee during the first week in October 1977.

As early as October 15, 1976, and again on October 17, 1977, Trooper Shaw received information from two sources indicating that appellee was storing large quantities of drugs in the barn in West Goshen Township. On November 1, 1977, Trooper Shaw returned to appellee's residence. This time appellee was present and working outside the barn. Trooper Shaw, again in plain clothes, gave a false name and

[ 275 Pa. Super. Page 457]

    misrepresented to appellee that he had purchased a barn and was interested in converting it into a photography studio, but that he lacked the technical expertise to carry out the planned conversion. Appellee showed the trooper various items of craftwork on the outside of the barn. Trooper Shaw then requested permission to enter and inspect the interior. Appellee refused, explaining that the interior was rather dirty, and that he wanted to delay any inspection until it could be cleaned. Without any further request by the trooper, appellee then approached a large shuttered window, pulled open the shutters and invited Trooper Shaw to inspect the interior. Making a visual inspection through the window, Trooper Shaw observed a quantity of marijuana.

Later that same day, Trooper Shaw secured a search warrant. On November 2, 1977, the warrant was executed and approximately eighty pounds of marijuana recovered from appellee's barn. On February 28, 1978, appellee filed a motion to suppress the evidence seized during the November 2, 1977 raid. At a hearing on April 20, 1978, appellee testified that his consent to Trooper Shaw being on the premises was the direct result of the trooper's failure to properly identify himself and his misrepresentation regarding his purpose in wishing to view the barn. The trial court ruled that the evidence was inadmissible based, inter alia, upon the involuntary nature of the appellee's consent. We disagree and hold that the intrusion was with consent and was not an unreasonable invasion of appellee's fourth amendment right of privacy.

In determining whether appellee's consent to the visual search of his premises, albeit procured through the fraudulent representation of Trooper Shaw, was nevertheless voluntary, we begin with the basic tenet that the fourth amendment is intended to safeguard from unreasonable government intrusions those areas in which a person displays a reasonable expectation of privacy. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

[ 275 Pa. Super. Page 458576]

(1967). With few exceptions, an intrusion into a place of privacy may not be effected absent a warrant issued based upon probable cause. See, e. g., Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is when a criminal suspect consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Katz v. United States, supra. Instantly, we must determine whether consent may be deemed "voluntary" when procured by a police official who misrepresents both his identity and purpose.

In Schneckloth v. Bustamonte, supra, the Supreme Court was required to define the voluntariness of consent for fourth amendment purposes. In that case, the police had stopped a vehicle containing a driver and five passengers for a minor traffic offense. The police requested and obtained permission to search the trunk of the vehicle, and incriminating evidence against one of the passengers was discovered. The issue on appeal was whether permission to search could be deemed voluntary in the absence of an express warning that the suspect had a right to refuse that permission. In rejecting petitioner's contention that the right to be free from an unreasonable search and seizure was analogous to the fifth amendment provision against self-incrimination and the sixth amendment right to counsel, thus requiring a modified Miranda warning prior to the consensual search, the Supreme Court undertook an extensive analysis regarding the fourth amendment protection.

"There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

[ 275 Pa. Super. Page 459]

A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial . . . .

The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, as Mr. Justice Frankfurter's opinion for the Court put it in Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782, the Fourth Amendment protects the 'security of one's privacy against arbitrary intrusion by the police . . . .' In declining to apply the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, to convictions that had become final before rendition of that decision, the Court emphasized that 'there is no likelihood of unreliability or coercion present in a search-and-seizure case,' Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 14 L.Ed.2d 601. . . . The Fourth Amendment 'is not an adjunct to the ascertainment of truth.' The guarantees of the Fourth Amendment stand 'as a protection of quite different constitutional values -- values reflecting the concern of ...

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