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filed: January 4, 1985.


No. 00165 Philadelphia 83, Appeal from the Judgment of Sentence of December 15, 1982 in the Court of Common Pleas of Northampton County, Criminal Division, at No. CR 549-1982.


Richard D. Atkins, Philadelphia, for appellant.

Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.

Del Sole, Montemuro and Hoffman, JJ.

Author: Hoffman

[ 337 Pa. Super. Page 224]

The issue on appeal is whether appellant had a legitimate expectation of privacy in the contents of a garbage pit located beside a barn on a leased lot so as to warrant suppression of evidence seized by police in a trespassory warrantless search. We hold that appellant had no such privacy expectation and, accordingly, affirm.

Based upon the lower court's findings of fact and the record, the relevant facts are as follows: On January 22, 1981, appellant became the lessee of a lot located at the southeast corner of Eighth Street and Beil Alley in Northampton County, Pennsylvania. According to the terms of the lease, the premises were to be used for non-commercial purposes and appellant was to pay for all utilities. Upon the lot was a woodframe barn measuring approximately 20 feet by 40 feet with a single locked door at the front, no windows, and a sheet metal roof punctuated by two large exhaust vents. Near one side of the barn was an open pit comprised of a hollow metal drum or tub planted in the ground to a depth of about four feet. Although this pit was clearly observable from both Eighth Street and Beil Alley, its contents were not visible from either street. The lot was grassy, overgrown with weeds and dirt patches, and was not fenced or enclosed in any way. The lot was surrounded closely by alleys and neighboring buildings.

On January 15, 1982, Patrolman Richard Fenstermaker of the Northampton Borough Police Department received information regarding alleged suspicious activities at this lot based upon an unusual amount of traffic in the area. On February 28, 1982, Officer Fenstermaker, along with Officers Robert Benson and Howard George, began periodic surveillance of the barn and surrounding area. On March 5, Officer Benson observed appellant exit the front of the barn carrying some dried plants or weeds and throw the vegetation into the open pit. Appellant then left the premises. That evening, Officer Fenstermaker returned to the lot and, upon approaching the pit, observed dried clippings of what appeared to be marijuana plants lying atop some

[ 337 Pa. Super. Page 225]

    garbage. He took several of these clippings and returned to police headquarters, where the material was "field tested" and positively identified as marijuana. Officer Fenstermaker returned to the lot and took photographs of the pit contents. At this point in time, a "more earnest surveillance" was established. Over the next two months, appellant was observed sixteen times at the barn, and, each time, appellant would immediately lock the door upon entering and exiting the barn. Officers Benson and Fenstermaker also took electrical and water readings from meters attached to an exterior wall of the barn and visible from adjoining property. These readings, covering the period from March 1981 through March 1982, revealed that extremely high amounts of water and electricity were being consumed for an uninhabited building.

Based upon the above information, a warrant was obtained on May 19, 1982, to search for marijuana plants, other controlled substances, and any related paraphernalia or instruments used in the growing or manufacture of such items. As a result of the May 19 search conducted in appellant's presence, 344 immature marijuana plants were seized from the barn. The total weight of the dried leaves and stems when stripped from the plants was 11.9 pounds.

Appellant was arrested and charged with unlawful possession of a controlled substance (marijuana) and possession with intent to deliver a controlled substance (marijuana). On December 7, 1982, after making findings of fact and conclusions of law, the lower court denied appellant's motion to suppress the physical evidence seized by police and impounded the record of the suppression hearing. On December 15, appellant waived jury trial and the lower court found him guilty on both counts. Appellant then waived his rights to file post-verdict motions and to a pre-sentence investigation report. He was subsequently sentenced to (1) a term of five years probation and a $5,000 fine plus prosecution costs on the possession with intent to deliver charge, (2) a concurrent term of one year probation plus costs on the possession charge, and (3) community service

[ 337 Pa. Super. Page 226]

    as a volunteer at the Northampton County Prison for a minimum of twelve hours per month during the first year of probation. This appeal followed.*fn1

Appellant contends that Officer Fenstermaker's trespassory and warrantless search and seizure of the marijuana clippings from his pit was unreasonable because neither probable cause nor exigent circumstances existed. He therefore argues that the marijuana plants seized in the subsequent search of the barn pursuant to a warrant should have been suppressed as the fruit of the prior illegal search of the pit. The Commonwealth, on the other hand, argues that appellant had no reasonable expectation of privacy in the clippings which he had abandoned.

"The Fourth Amendment does not prohibit warrantless searches, but rather unreasonable searches. The reasonableness of a search depends upon the facts and circumstances of the particular case, considered in the context of established Constitutional principles." United States v. Samuels, 374 F.Supp. 684, 685 (E.D.Pa. 1974). See also Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963); Commonwealth v. Weimer, 262 Pa. Superior Ct. 69, 74-75, 396 A.2d 649, 651-652 (1978) (en banc). In Pennsylvania, "the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment." Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978). It is now well-recognized that, in order to challenge successfully a warrantless search, the challenger must have a legitimate expectation of privacy in the area or property searched:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment ...

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