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decided: November 16, 1989.


Appeal from the Order of the Commonwealth Court Entered at No. 205 C.C. 1986, on October 9, 1987, Reversing and Remanding the Order of the Court of Common Pleas of Chester County, Criminal Division, Entered at No. 54, 55-1983 on December 23, 1985. Pa. Commw. Ct. , A.2d (198 ).


James A. Cunningham, Pottstown, for appellant.

Kenneth A. Gelburd, Sp. Deputy Atty. General, Dept. of Environmental Resources, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., file dissenting opinions.

Author: Papadakos

[ 523 Pa. Page 276]


In this case we are again called upon to examine the constitutionality of the warrantless inspection provisions of Section 608 of the Solid Waste Management Act, 35 P.S. § 6018.608 (Supp. 1985). For the reasons set forth below, we find these provisions to be constitutionally valid and hence affirm the judgment of the Commonwealth Court.

The facts are as follows: On August 19, 1982, a Department of Environmental Resources (DER) employee, Mr. Frank Holmes, while on a public highway, observed one of Appellant's loaded trash trucks enter a property and then back into a concrete building. This building or "transfer station" was used to compact waste so that it could be loaded onto a tractor-trailer for transportation and ultimate disposal. Mr. Holmes was aware of the purpose of this building, as he had visited it previously and knew that Appellant had not been issued a permit to operate it as a transfer station pursuant to Section 201 of the Solid Waste Management Act, 35 P.S. § 6018.201 (Supp. 1987). When Mr. Holmes lost sight of the truck as it entered the building, he exited his car, walked onto the property and into the "transfer station" building, without a warrant, to view the operation.*fn1 The trash truck was not empty and a load of

[ 523 Pa. Page 277]

    solid waste was in the compacting machinery. Thereafter, DER initiated a prosecution against Appellant under the Solid Waste Management Act for operating a transfer station without a permit.

Initially, Appellant was convicted of a summary offense by a district justice. Appellant then filed a de novo appeal to the Court of Common Pleas of Chester County. On the date set for trial, Appellant filed a motion to suppress the testimony of Mr. Holmes on the basis that his testimony would be grounded on information obtained without a search warrant. The trial court allowed his testimony, reasoning that there could be no reasonable expectation of privacy under the Fourth Amendment to the United States Constitution, or Article I, Section 8 of the Pennsylvania Constitution, due to the highly regulated nature of the waste disposal industry. After a non-jury trial, Appellant was found guilty and filed an appeal with the Commonwealth Court before sentence was imposed. The Commonwealth Court initially remanded to the trial court for sentencing. Appellant then filed a motion for reconsideration in light of Commonwealth v. Fiore, 88 Pa. Commonwealth Ct. 418, 491 A.2d 284 (1984) (since reversed at 512 Pa. 327, 516 A.2d 704 (1986)). The trial court reversed its original decision and held that the Commonwealth Court decision in Fiore, supra, required suppression of the evidence. DER appealed the trial court decision to the Commonwealth Court and, on appeal, the Commonwealth Court reversed the order of the trial court and remanded for imposition of sentence. 110 Pa. Commw. 194, 532 A.2d 497. Appellant has now appealed to this Court.

[ 523 Pa. Page 278]

In their opinion in the instant case, the Commonwealth Court briefly mentions Fiore, supra, and Commonwealth v. Lutz, 512 Pa. 192, 516 A.2d 339 (1986),*fn2 but bases the disposition of the matter on neither. Instead, the Commonwealth Court relies on the "good faith" exception to the Fourth Amendment enunciated in Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).

In Krull, a Chicago detective relied upon a warrantless administrative search provision in conducting an investigation. The very next day the warrantless search portion of the statute was held unconstitutional. The United States Supreme Court held that the evidence should not have been suppressed due to the officer's good faith reliance upon the statute. This same rationale was applied to the matter at hand by the Commonwealth Court. It was their belief that no greater protection is afforded Appellant under Article I, Section 8 of the Pennsylvania Constitution.*fn3

The issue presented in this appeal is whether our holding in Lutz, supra, requires suppression of the evidence obtained when the DER inspector entered private property, not visible from the public road, and searched an enclosed area without first obtaining a search warrant. Implicit in this question is the following corollary issue: while a good faith exception to the Fourth Amendment exclusionary rule has been established by the U.S. Supreme Court in Illinois v. Krull, supra, must we afford Appellant greater protection under Article I, Section 8 of the Pennsylvania Constitution than he would now receive under the Fourth Amendment of the United States Constitution. If we agreed that

[ 523 Pa. Page 279]

The United States Supreme Court held that (1) the barn and the area around it lay outside the protected curtilage of the suspect's ranch house, so that the warrantless observation of the barn and surrounding area did not constitute a search of the curtilage in violation of the Fourth Amendment, where (a) the barn was located a substantial distance away from the ranch house, (b) the barn did not lie within the area that was enclosed by a fence which surrounded the ranch house, (c) the officers possessed objective data which indicated that the barn was not being used for intimate activities of the home, and (d) the suspect did little to protect the barn area from observation by those standing in the open fields; and (2) even assuming that the suspect had an expectation of privacy in the barn which was independent of the curtilage doctrine, the Fourth Amendment was not violated, where the officers never entered the barn or any other structure on the premises, and merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front.

Appellant contends that the "open fields" doctrine, as elaborated by the United States Supreme Court in Dunn, is not applicable in this case because here (unlike Dunn), Agent Holmes was inside the "transfer station" building when he viewed the alleged illegal activity. Brief for Appellant, at pp. 12-13. We agree.

Mr. Justice Hutchinson's Opinion Announcing the Judgment of the Court in Lutz, supra, was joined by only two other Justices. It is not stare decisis or binding precedent. Moreover, that judgment has now been vacated by the United States Supreme Court. This writer joined in Mr. Justice Larsen's dissenting opinion in Lutz, supra, and we are now convinced upon argument and reflection that it accurately states the law under the ...

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