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Commonwealth v. Love

Commonwealth Court of Pennsylvania

May 10, 2018

Commonwealth of Pennsylvania
v.
Dennis Love, Appellant

          Submitted: April 12, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          P. KEVIN BROBSON, Judge

         Dennis Love (Love) appeals from the judgment of sentence imposed by the Court of Common Pleas of the 41st Judicial District, Juniata County Branch (trial court), dated February 23, 2017, which sentenced Love to pay fines, costs, and restitution stemming from violations of Section 2307 of the Game and Wildlife Code (Code).[1] For the reasons set forth below, we now reverse an earlier order of the trial court, dated November 2, 2016, denying a motion to suppress; vacate the trial court's judgment of sentence; and remand the matter to the trial court for further proceedings.

         On November 16, 2015, Pennsylvania Game Commission (Commission) Wildlife Conservation Officer Stephen S. Hower (Hower) submitted an application for a search warrant to a Magisterial District Judge (MDJ). The warrant application sought authorization to search Love's property for "[p]arts of unlawfully taken or possessed game or wildlife." (Reproduced Record (R.R.) at 38a.) In support of the application, Hower submitted an affidavit of probable cause which provided:

On 11/11/[20]15 at approximately 0100 hours, Pennsylvania Wildlife Conservation Officers were patrolling by aircraft over Juniata County when they observed a spotlight being operated from a vehicle in a field near East Waterford. Since it is unlawful to use an artificial light to search for game or wildlife after 11 PM, the officers watched the vehicle and reported the activity to officers on the ground. Deputy Wildlife Conservation Officer [(DWCO)] Terry Clevenger along with two other officers responded to 9853 Route 75 S, East Waterford where the officers in the aircraft had reported seeing the vehicle stop.
Upon their arrival DWCO Clevenger found the vehicle, a white Dodge truck, license number YHM3257, with what appeared to be blood in the bed and on the tail gate. He spoke to the home owner, Dennis R. Love, who explained that the blood was from a deer that he had killed on the evening of Thursday, November 12 "for crop damage[.]"[] When asked by Clevenger whether he had reported killing this deer to the Game Commission, Love annswered [sic] "No[.]"[] Clevenger asked for the head and hide of the deer and was told by Love that it had been disposed of. Love told the officers that the meat from this deer was "Wrapped and in the freezer[.]"[]
Since the killing of this deer had not been reported to the Commission as required, the possession of its parts would be in violation of the Game and Wildlife Code.[2]

(Id. at 39a.)

         On November 16, 2015, an MDJ authorized the warrant, and the Commission executed the search. The search revealed not only the deer hide and meat but also a myriad of other assorted game carcasses and meat. (Id. at 32a-33a.) As a result of this search, the Commission filed twenty-four summary citations against Love, which were comprised of twenty-two counts of Unlawful Taking or Possession of Game or Wildlife in violation of 34 Pa. C.S. § 2307(a) and two counts of Unlawful Acts Concerning Taking of Furbearers in violation of 34 Pa. C.S. § 2361(a)(2). (Id. at 24a-29a.) Love pleaded not guilty to all counts. Following a consolidated summary trial held on March 8, 2016, the MDJ found Love guilty of all counts.[3]

         On April 7, 2016, Love filed a notice of appeal from his twenty-four summary offenses, and the trial court scheduled a de novo hearing. (Id. at 23a-29a.) Prior to the hearing date, Love filed a motion seeking to suppress the evidence obtained during the search. (Id. at 32a-39a.) In so doing, Love argued that he had a reasonable expectation of privacy at all places from which the evidence was seized. (Id.) Further, Love challenged the warrant as overbroad and lacking specificity. (Id.) Following a motion hearing, the trial court denied Love's suppression motion by order dated November 2, 2016. (Id. at 70a.)

         The trial court conducted a de novo summary appeal hearing and found Love guilty of all counts. (Id. at 306a.) By order dated February 23, 2017, the trial court sentenced Love to fines, costs, and restitution on the twenty-four summary offenses. (Id. at 124a-25a.) Love then filed the instant appeal.

         On appeal, [4] Love argues that the trial court erred in denying his motion to suppress. Love challenges the search warrant as unconstitutionally overbroad and lacking the requisite degree of specificity. Love argues that probable cause only existed to perform a search for parts of a deer, whereas the search warrant authorized a search for parts of any game or wildlife, thus resulting in a fishing expedition.

         A search warrant cannot be used as a general investigatory tool to uncover evidence of a crime. In re Casale, 517 A.2d 1260, 1263 (Pa. 1986). Nor may a warrant be so ambiguous as to allow the executing officers to pick and choose among an individual's possessions to find which items to seize, which would result in the general "rummaging" banned by the Fourth Amendment. See Cmwlth. v. Santner, 454 A.2d 24, 25 n.2 (Pa. Super. 1982), cert. denied, 468 U.S. 1217 (1984) (citing Marron v. United States, 275 U.S. 192, 195 (1927)). The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized "as nearly as may be." Pa. Const. art 1, ยง 8. The clear meaning of the language is that a warrant must describe the items as specifically as is reasonably ...


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