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filed: September 1, 1988.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal at No. 670/86.


Ronald H. Elgart, Levittown, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Beck, Kelly and Popovich, JJ. Kelly, J. filed a concurring opinion.

Author: Popovich

[ 377 Pa. Super. Page 318]

This is an appeal from the judgment of sentence which was imposed upon appellant, Joseph Oglialoro, after he was convicted by a judge, sitting without a jury, of certain drug offenses. These offenses are possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia.

Appellant contends that the helicopter search which was conducted by the police was illegal because it interfered with appellant's reasonable expectation of privacy. Appellant also contends that his pretrial motion to suppress should have been granted, and the fruits of the illegal search should have been suppressed. We agree and must reverse the judgment of sentence and grant a new trial.

The standard of review which governs a ruling on a motion to suppress has been set forth below:

In reviewing a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom. In determining whether the record supports the court's findings of fact, we must accept the Commonwealth's evidence and so much of the evidence of the

[ 377 Pa. Super. Page 319]

    defense as, fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Weik, 360 Pa. Super. 560, 562, 521 A.2d 44, 45 (1987); Commonwealth v. Eliff, 300 Pa. Super. 423, 428-29, 446 A.2d 927, 929-30 (1982).

Commonwealth v. Lemanski, 365 Pa. Super. 332, 342-343, 529 A.2d 1085, 1089 (1987).

In the instant case, the factual findings of the suppression court are supported by the record; however, we are unable to agree with the legal conclusions drawn from that record. The factual findings of the suppression court consisted of the following:

Appellant is the owner of a certain tract of land located in a rural area in Bucks County which tract contains, inter alia, the dwelling of defendant and his family and the pole-barn in which the marijuana was discovered. (N.T. pp. 85-86). Appellant's property is bounded by Durham Road on one side, and by trees and shrubs on the other three sides. (N.T. pp. 89-90 and Exhibit DS-8). A fence extends along the rear of half of one side. (N.T. p. 89). The pole-barn which contains the marijuana is located at the rear of appellant's property, approximately 446 feet from the road, and 251 feet from defendant's residence. (N.T. pp. 87-88). It is a windowless wooden structure, known as a "pole-barn", (N.T. pp. 7, 21) and measures approximately 31 feet by 48 feet. (N.T. p. 88). The material used to construct the barn's roof is a clear plastic-type substance. (N.T. pp. 7, 21; Exhibit DS-26). However, it appears somewhat milky and translucent due to the fact that it is corrugated and is molded into rippled, rather than smooth, sheets.

On October 11, 1985, Pennsylvania State Police at the Trevose Barracks received an anonymous telephone tip, allegedly from a private aircraft pilot, reporting the presence of marijuana in the defendant's pole-barn. (N.T. p. 15). Acting on the tip, three police officers flew over the premises in a State Police helicopter on October 16, 1985. (N.T. pp. 33, 15). The day was bright and sunny. (N.T.

[ 377 Pa. Super. Page 320]

    p. 40). The helicopter initially flew over appellant's property at a height of approximately 500 feet above the appellant's barn. However, the police were unable to ascertain the barn's contents at that altitude and therefore reduced their altitude to approximately 50 feet over the barn. (N.T. pp. 23-24). The police were not using any visual aids to assist their observations. (N.T. pp. 33, 47). While hovering at 50 feet, police observed the tops of plants which were pressed against the barn's roof, and which clearly matched the color, size and configuration of marijuana. (N.T. pp. 24, 56-57). The police helicopter hovered at a height of 50 feet for approximately 15 seconds and made a total of three or more passes over defendant's property, lasting approximately five minutes. (N.T. pp. 25, 32, 45). Appellant's wife was present in the home at the time. (N.T. p. 93). She experienced various sensations caused by the helicopter's proximity, such as loud noise, and vibration of the house and windows. (Id.) After clearly identifying the marijuana from an altitude of 50 feet over the barn (N.T. pp. 63-64), the helicopter returned to the State Police Barracks. On the basis of the officers' aerial observations, the local police chief proceeded to obtain a search warrant (N.T. pp. 25-26), while other officers drove to the site to secure the property in the interim. (N.T. p. 26).

The officers participating in the aerial viewing had significant training and experience in the detection of marijuana. (N.T. pp. 29-30, 55). Marijuana has a precise and identifiable growing configuration (N.T. p. 30), and grows in a distinctive color, distinguishable from other vegetation growing in Pennsylvania. (N.T. pp. 47-48, 58-60). From an altitude of 500 feet it was possible to observe through the barn roof a color identical to the color of growing marijuana plants. (N.T. p. 39). At 50 feet, it was possible to identify, clearly as marijuana the leaves of a plant which were pressed against the barn roof. (N.T. p. 39). In general, it was possible to observe objects inside the barn through the roof, especially if the object was positioned close to the roof. (N.T. p. 39).

[ 377 Pa. Super. Page 321]

When the search warrant arrived, the police forcibly entered the barn and observed 91 very large marijuana plants. (N.T. p. 9, Exhibits CS-3, 13). The plants appear to have ranged in height between 12 and 18 feet tall, and some were stooped over and pressed against the barn's roof. (Exhibits CS-3, 13). Trial Court's Opinion pp. 1-4.

With these facts in mind, the inquiry becomes whether appellant had a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J. Concurring). Accord California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986).

There is no doubt that appellant had a subjective expectation of privacy since he did take precautions to maintain privacy. Further, a review of the law in this area reveals that appellant's subjective expectation is one that society is prepared to recognize as reasonable. Katz, supra.

The case of People v. Sabo, 185 Cal.App.3d 845, 230 Cal.Rptr. 170 (1986), cert. denied, California v. Sabo, U.S. , 107 S.Ct. 2200, 95 L.Ed.2d 855 ...

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