offered in evidence. In the presence of many troopers and three FBI agents it is doubtful that Burgan's consent to search was voluntary.
CONCLUSIONS OF LAW
1. "... Fourth Amendment rights are personal rights that may not be asserted vicariously ...." Rakas v. Illinois, 439 U.S. 128, 133, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978).
The search of the car performed by the state police pursuant to a search warrant issued on probable cause and valid under state law was conducted on the Chrysler car, the property of John Sebetich and in the possession of Rose McAvoy Sebetich. Even if the search was illegal, none of the Fourth Amendment rights of Franklin Sebetich were infringed. Franklin Sebetich had neither a property right nor a possessory right in that car. Even had he been a passenger in that car, he would not have been entitled to challenge a search.
The motion to suppress the crowbar as evidence will be denied.
2. The motion to suppress the bolt cutters as evidence will be denied. The bolt cutters were found in the yard, ten or fifteen feet from the McAvoy mobile home for which a search for Franklin Sebetich had been consented to by McAvoy (Exhibit 1 to the hearing on Motion to Suppress held on January 8, 1981). McAvoy could legitimately consent to the officer's search. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
Consent by a third party occupant of property, McAvoy, validates the seizure of Sebetich's bolt cutters found thereon. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
The bolt cutters were found on the ground in an open area rather than some place where Sebetich could assert he had a special right of privacy.
Troopers Paraska and Fleming were lawfully present in the area of the McAvoy house since Trooper Fleming was armed with an arrest warrant for Sebetich. They were likewise lawfully present in the McAvoy home and curtilage surrounding it. The bolt cutters belonging to Sebetich were in plain view on the ground ten or fifteen feet from the house and near a tool box also belonging to Sebetich. The incriminating nature of the bolt cutters was immediately apparent to Trooper Paraska who had observed that a padlock on the gate giving access to the dynamite storage area had been cut.
It is our opinion that the troopers were lawfully present in the McAvoy house and upon the curtilage and access thereto. Police are excused from obtaining a warrant under the exception known as the "plain view" doctrine. United States v. Rodriguez, 596 F.2d 169, 175 (6th Cir. 1979).
The state police armed with an arrest warrant for Sebetich had a right to enter and leave the home. They had a right to search the area for the fugitive. The evidence was in plain view and thus subject to seizure. United States v. Phillips, 593 F.2d 553, 556 (4th Cir. 1978); Cf. Coolidge v. New Hampshire, 403 U.S. 443, 465-467, 91 S. Ct. 2022, 2037-2039, 29 L. Ed. 2d 564 (1971).
3. The search of the Burgan house was conducted on November 19, 1980 pursuant to a search warrant issued by Magistrate Albert Spence in Washington, Pennsylvania. A Pennsylvania magistrate's court is not a court of record. Since FBI Agents Skupien, Kwait and Rescick participated in the search of the Burgan house, the search warrant is invalid under Rule 41, Federal Rules of Criminal Procedure. If a federal agent is invited to participate, the search becomes a joint search and must be tested in a federal prosecution as if it were a federal search. Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927). See also Lustig v. United States, 338 U.S. 74, 78-79, 69 S. Ct. 1372, 1374, 93 L. Ed. 1819 (1949). Rule 41 was violated since the warrant was not issued by a court of record. United States v. Brougher, 19 F.R.D. 79 (W.D.Pa.1956); United States v. Donald T. Smith, et al., Criminal No. 78-83 (W.D.Pa.); United States v. Duronio, Criminal No. 78-192 (W.D.Pa.1978).
The defendant Sebetich and his wife were living in the Burgan house; thus, he had a legitimate expectation of privacy. The evidence of the illegal arrest and search will be suppressed.