No. 2709 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 3042-80.
Edward F. Kane, Norristown, for appellant.
Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Brosky and Wieand, JJ.
[ 310 Pa. Super. Page 379]
Does a burglar who parks his vehicle on property of another in violation of posted "No Trespassing" signs have a reasonable expectation of privacy with respect to stolen property stored in the trunk of his vehicle from which he has allowed the keys to remain dangling while he engages in the commission of a burglary? The trial court concluded that there was no such expectation of privacy and refused to suppress stolen property found in the trunk by a policeman
[ 310 Pa. Super. Page 380]
responding to a silent burglar alarm. The Commonwealth used the evidence in obtaining the vehicle owner's non-jury conviction for burglary and related offenses. Raymond Bosworth, the vehicle's owner, who was found and arrested inside the building being burglarized, appeals from the judgment of sentence. We affirm.
At or about 12:25 p.m. on October 10, 1980, the police of Towamencin Township were alerted by a silent burglar alarm which had been tripped in a barn used for storage in Harleysville. Sgt. Alfred M. Gillette arrived at the property of P.H. Lumber Company at 12:28 p.m. He observed a Cadillac automobile parked in a weeded area near the barn. He approached the vehicle in order to obtain the registration number, but as he drew closer, he observed that the keys were dangling from the trunk lock. He opened the trunk of the Cadillac and observed the top of a birdbath and other items. He closed the trunk, taking the keys with him, and went to the barn, which was the building protected by the alarm. Upon entering the building through a door which had previously been forced open, he observed appellant descending a ladder from the second floor. He also observed a birdbath pedestal which seemed to match the birdbath seen in the trunk of the Cadillac. Appellant was taken into custody. The vehicle, which was registered in appellant's name, had been parked on P.H. Lumber Company's land which had been posted with "No Trespassing" signs.
The controlling principle appears in Commonwealth v. Grabowski, 306 Pa. Super. 483, 452 A.2d 827 (1982) as follows:
The Fourth Amendment of the Constitution prohibits only unreasonable searches and seizures. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To constitute a 'search' within the Fourth Amendment, police activity must intrude upon an area or concern wherein the appellant harbored a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98,
[ 310 Pa. Super. Page 381100]
S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. ...