Appeal No. 55 E.D. Appeal Docket 1988 from the Order of the Superior Court of Pennsylvania, 365 Pa. Superior Court 502,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., files a dissenting opinion in which Larsen, J., joins.
The appeal is dismissed as having been improvidently granted.
I must dissent from the majority's disposition of this case for several reasons. The most important of which is that their entire analysis is based upon the premise that an illegal search was the basis on which a warrant was obtained to seize contraband. My review of the record reveals that no such occurrence took place. I do not believe that there was a "search," either legal or illegal. Therefore, there was no evidence seized pursuant to a warrant based upon an illegal search. The evidence seized was admissible as it was obtained by means of a valid warrant.
The facts as summarized by the Superior Court are that:
Appellant Adolph Black is a manager and trustee of the Second Story Lounge. The Second Story Lounge is a private club reserved for members of the Reading Veteran Volunteer Firemans' Association. The club is located on the second floor of a building on Franklin Street in Reading, Pennsylvania.
In order to gain admittance to the club, one must first enter a vestibule, ring a buzzer, and display identification as to membership to a doorman seated behind a sliding partition. Behind the vestibule is a flight of stairs which leads to the second floor. On the second floor are a "back room" and a "front room" located at opposite ends of a corridor. The "back room" is an entertainment area where alcoholic beverages are served to club members.
The "front room" is listed as a card room on the PLCB forms and is part of the premises licensed for the sale of alcohol. The "front room", however, is actually an apartment which was used by appellant as his personal office.
In 1984, Agent Jan F. Llewellyn, an enforcement officer for the PLCB, was assigned to investigate a complaint concerning the Second Story Lounge. This complaint was based on information relayed to the PLCB by the Vice Division of the Reading Bureau of Police. Agent Llewellyn contacted the vice squad office and requested that municipal police participate in an "open inspection" of appellant's club. He later stated that the purpose of this inspection was to check for "possible minors and to establish the names of individuals who were working on the premises that evening." (R.R. at 8a).
At 4 A.M. on December 15, 1984, Vice Squad Police Officer Richard Garipoli accompanied several PLCB investigators on an unannounced inspection of appellant's club. Officer Garipoli did not secure a warrant beforehand. He proceeded directly to appellant's office and entered without first obtaining appellant's consent. The officer noticed appellant standing next to a table on which he observed in plain view items which the officer believed to be small amounts of marijuana, cocaine, and metham-phetamine. The officer then departed, he returned with a valid search warrant at 5 A.M. and seized the suspected contraband.
Appellant was arrested and charged with offenses under the Controlled Substance, Drug, Device and Cosmetic Act. Pa.Stat.Ann. titl. 35 §§ 780-101 to 144 (Purdon 1977 & Supp.1987). His pre-trial omnibus motion was denied. After a trial by jury, he was ...