No. 904 Pittsburgh, 1981, Appeal from Suppression Order of the Court of Common Pleas, Criminal Division, of Somerset County, No. 466 Criminal 1980.
James B. Yelovich, District Attorney, Somerset, for Commonwealth, appellant.
Jon C. Botula, Pittsburgh, for appellee.
Wieand, Beck and Montgomery, JJ.
[ 313 Pa. Super. Page 348]
This is a Commonwealth appeal from an order which suppressed the remnants of recently harvested marijuana plants which had been seized, pursuant to warrant, from an open field in Somerset County. The order also suppressed observations made one day earlier by narcotics agents from a helicopter flying low over the cleared land in which marijuana plants were growing and observations of growing marijuana made two days earlier by narcotics agents who had entered the woodland surrounding the open field in which the marijuana was growing.*fn1 For reasons appearing in this opinion, we reverse.
[ 313 Pa. Super. Page 349]
The physical search and seizure of remnants of marijuana plants was accomplished on July 24, 1980, pursuant to a warrant issued for the search of a tract of two acres of land owned by appellee, Jack D. Beals. The facts upon which the finding of probable cause for the warrant had been made appeared in an affidavit as follows:
At or about 2:00 p.m. on July 20, 1980, affiant, Kenneth R. Lemon, received information from a reliable and credible informant personally known to him for about one (1) year and whose name, residence address, place of employment, social security, age and current whereabouts are known to Kenneth R. Lemon personally. The informant has no criminal history on file with the Pennsylvania State Police, nor with the Somerset, Berlin, Meyersdale, or Central City Police Departments, nor is there any record of criminal history in the Clerk of Courts Office in the Courthouse at Somerset, Pennsylvania. The informant, to Kenneth R. Lemon's knowledge, has been a resident of Somerset County, for in excess of twenty (20) years. The informant is an unpaid person who desires to remain anonymous because he is fearful of his safety. Prior to relating any information to the affiant Kenneth R. Lemon, the informant was informed of the consequences of giving false information to law enforcement authorities, that such conduct was a criminal offense and was further advised that any information he volunteered could and would be used against him in a court of law, if inculpatory, that he had the right to remain silent, his right to counsel of his choice before and during questioning and to a free lawyer, if he could not afford counsel as well as the right to stop answering questions at any time. The informant was not in custody for an offense nor was he the focus of an investigation. The informant acknowledged
[ 313 Pa. Super. Page 350]
that he understood his rights and was willing to impart information to Kenneth R. Lemon.
The informant advised Kenneth R. Lemon that on prior occasions this summer and particularly during the week of July 13 through 20, 1980, while personally present on the property owned by Jack D. Beals as hereinbefore described, he personally observed what he believed to be marijuana plants being grown and cultivated in large quantities in an approximate two (2) acre area located near the extremity of a row-crop, in an area surrounded by large trees and further identified the property as the property of "Jack Beal."
On July 20, 1980, the confidential informant took Kenneth R. Lemon to the property and identified it as the place where he saw the suspected marijuana growing. "No Trespassing" signs surrounding the property were signed by "Jack Beals", in handwriting similar to that which appears on the deed attached. An employee of an adjacent land owner further identified the owner of the property as "Jack Beal." (Through further investigation at the Courthouse in Somerset, Pa., it was determined that the property in question was owned by Jack D. Beals, 818 Smith Street, Somerset, PA 15501). On July 23, 1980, both affiants in the company of Trooper Steve Lapata of the Pennsylvania State Police flew over the property in a helicopter and observed, in the area pinpointed by the informant and their research, at a heighth of approximately two hundred (200) feet, a cultivated area of approximately two (2) acres, surrounded by ...