Commonwealth v. Soychak
Commonwealth v. Soychak
Concurring Opinion
Concurring Opinion by
I would like to note my specific concurrence with the majority’s holding that any observations through the exhaust fan by the officers on the roof would be inadmissible unless made after the police at the front door announced their identity and purpose.
Opinion of the Court
Opinion by
The present appeal concerns the admissibility of gambling evidence obtained from a police surveillance and raid of defendants’ premises. The evidence was suppressed by the lower court following a hearing and the Commmonwealth now appeals.
The chain of circumstances leading to the present appeal began with a tip from a confidential informant. The informant advised the police that gambling operations were being conducted at the ABC Billiard Club. Acting on this information, police officers placed the club under surveillance for an hour, from 11:00 p.m. to midnight, during which time they observed various males entering and leaving the premises. The officers
On the basis of the above facts a search warrant was obtained. The affidavit supporting the search warrant included the following information: (1) a gambling establishment was alleged to be in operation on the described premises of the ABC Billiard Club; acquisition of this information was attributed to a confidential informant; (2) the “stickman” and “doorman” were identified, also through the statements of the confidential informant; (3) the information from the informant was said to be based on the informant’s own personal knowledge, he having observed gambling, and actually gambled, on the premises in question; (4) the information from the informant was alleged to have proved reliable in the past; two convictions and three pending prosecutions for gambling, all the result of the informant’s information, were set out in detail; (5) the results of the one-hour police surveillance were described; during this one-hour period various males were said to have entered the premises and two males from the premises were seen setting garbage on the street; (6) finally, the affidavit described the police officer’s observation through the exhaust fan of gambling in the club’s billiard room.
During this time the troopers who were still on the rear roof observed the defendants through the exhaust fan. One of the troopers testified at the suppression hearing that he watched the defendants running around the room while the police were trying to open the front door. One of the defendants put billiard balls on the table on which they had been playing dice. Another defendant ran into the bathroom and flushed dice down the commode.
The items which the police confiscated as a result of the raid were a deck of cards, two curtain rods with tape on both ends, the exhaust fan, and the two reinforced doors that barred access to the club. This evidence, along with the testimony concerning the observations through the exhaust fan, was suppressed by the lower court. For the reasons that follow we affirm the lower court order with regard to the initial exhaust fan observations, but reverse with respect to the subsequent exhaust fan observations and the physical evidence seized.
Primarily, three issues are raised by this appeal. The issues concern the propriety of the initial police observations through the exhaust fan, the validity of the search warrant, and the admissibility of the evi
With respect to the propriety of the initial exhaust fan observations, the test is whether the police officer unreasonably violated defendants’ justifiable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). The Supreme Court in Katz held that the absence of a physical intrusion does not per se demonstrate that a police surveillance was reasonable; even a non-trespassory surveillance can be unreasonable and therefore unconstitutional. As we intimated in Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A. 2d 904 (1970), the presence or absence of an accompanying trespass is merely a factor to consider in determining the reasonableness of a visual intrusion. In the instant case the police officer’s observations were effected by trespassing upon the roof of the building and manipulating the louvers of the billiard club’s exhaust fan. This physical trespass accompanying the officer’s visual observation is, therefore, a relevant consideration in determining the propriety of his conduct.
Another consideration which we found significant in Hernley, supra, is the reasonableness of the suspect’s expectation of privacy. The suspects in Hernley had failed to curtain their windows, and accordingly we found that, absent such obvious action, their expectation of privacy was neither justifiable nor reasonable. In contrast, a reasonable expectation of privacy has been found to exist in cases wherein the suspects have drawn their curtains but in so doing have failed to completely block the view of police investigators. See, e.g., Pate v. Municipal Court, 11 Cal. App. 3d 721, 89 Cal. Rptr. 893 (1970); and People v. Myles, 6 Cal. App. 3d 788, 86 Cal. Rptr. 274 (1970), wherein the suspects were found, under the circumstances, to have exhibited
In the present case the suspects could not have permanently closed the louvers on their exhaust fan without being deprived of the use of the fan. Hence, their failure to so close the louvers does not negate the existence of an expectation of privacy. And the defendants have in fact affirmatively demonstrated an expectation of privacy by their use of louvers which closed when the fan was not operating, their use of two reinforced doors, and their employment of a “doorman”. This expectation of privacy may be considered reasonable with regard to the observations through the club’s bathroom fan because a bathroom is a room ordinarily considered private and because a view of the particular bathroom in question was only accessible to a person standing on the roof.
Thus, we find that the defendants exhibited a reasonable expectation of privacy. This expectation was unreasonably violated by the trespassory intrusion of the police officer, as discussed above. This combination of circumstances leads us to the conclusion that tbe initial exhaust fan observations by the police officer were unconstitutional and accordingly the results thereof must be suppressed.
The second issue concerns the validity of the search warrant. The six parts of the affidavit supporting the warrant have been set out above. Part (6) of the affidavit is based upon the exhaust fan observations which we have already found to have been improper. However, the inclusion of illegally obtained evidence will not invalidate a search warrant if the warrant is also based upon other sources which are valid and sufficient to constitute probable cause. Howell v. Cupp, 427 F.2d 36 (9th Cir. 1970); United States v. Sterling, 369 F. 2d 799 (3d Cir. 1966); Clay v. United States, 246 F.2d
The test for the sufficiency of a search warrant affidavit is twofold: the magistrate must be informed of some of the underlying circumstances (1) from which the informant concluded that the suspects were engaged in criminal activity, and (2) from which the affiant concluded that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108 (1964). The second portion of this test is met in the present case by a showing that the informant is credible. Part (3) of the affidavit, summarized above, is a declaration by the informant against his interests in that he admits to having engaged in the criminal act of gambling. An even more significant indication of informant-credibility is revealed in part (4). The informant is therein shown to have proved reliable in the past by virtue of his having previously supplied information leading to two convictions and three pending prosecutions for gambling. These indices are sufficient to establish the credibility of the informant.
The other portion of the Aguilar two-pronged test, requiring a statement of some of the circumstances underlying the informant’s conclusion, is not as easily satisfied in the present case. However, the requisite underlying circumstances are established by parts (1), (2), and (3) of the affidavit. These parts, all based on information from the confidential informant, aver that a gambling establishment was in operation at the billiard club (part (1)), identify the “stickman” and “doorman” (part (2)), and state that the informant had personally gambled, and observed gambling, on the club’s premises (part (3)).
The affidavit in the present case alleges criminal activity (gambling) on the part of the suspects, and indicates the manner in which the information was gathered (by personal observation). If either of these two items of information are stated in sufficient detail, then, by implication from the holding in Spinelli, supra, the affidavit is valid. See, e.g., Merritt v. State, 121 Ga. App. 832, 175 S.E.2d 890 (1970), which adopts the rule that the affidavit must either state how the informant obtained his information, or it must describe the criminal activity in sufficient detail. The purpose of these alternative requirements is to insure, as stated in Spinelli, supra, that the basis of the complaint is something more substantial than a casual rumor circulating in the underworld.
Thus, the “how-obtained” requirement is satisfied and the search warrant was validly issued. In addition, the alternative “detailed description” requirement is substantially complied with. The informant, in his presumably experienced opinion, described the activities in question as gambling. The word “gambling” has a commonsense meaning and should be construed accordingly, rather than in a technical fashion. Commonwealth v. Payton, supra. Additional specificity was added to the “gambling” description by the informant’s reference to the “stickman” in the game, since the term “stickman” is ordinarily used in connection with a game of dice. See Webster’s Third New International Dictionary 2241 (1965).
The third issue presented by the present appeal concerns the execution of the search warrant. In this
In determining the propriety of the officers’ actions, we begin by noting that the police are not required to execute every warrant in identical fashion. Bather, they are permitted flexibility to adapt their execution procedures to fit the needs of particular situations. This is especially true of situations involving gambling wherein the evidence can be destroyed in a matter of seconds. See, e.g., Commonwealth v. Jurkiewics, 47 Wash. Co. 172 (1967).
Under normal circumstances the police are required to give notice of their identity and purpose before attempting to enter private premises. Commonwealth v. McCloskey, 217 Pa. Superior Ct. 432, 272 A.2d 271 (1970). However, this notice requirement is designed not to afford the suspects time to destroy evidence, but to give them an opportunity to surrender their privacy voluntarily. Accordingly, if the suspects bar access to their premises after notice is given, and use the intervening time to destroy evidence, the police are then entitled to initiate their search by whatever means are reasonably available to them. In this connection the
With respect to the physical evidence seized by the officers entering through the front door, this evidence is admissible since it was seized during the proper execution of the search warrant.
That part of the lower court order suppressing the physical evidence seized and the observations made through the exhaust fan following the front-door police announcement is reversed. In all other respects the said order is affirmed.
Reference
- Full Case Name
- Commonwealth, Appellant, v. Soychak
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- 62 cases
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- Published