The opinion
HOFFMAN, Judge
(dissenting).
The Commonwealth, appellant herein, contends that the lower court erred when it granted appellee’s motion to suppress. The Majority relies on alternative grounds to reverse the lower court: (1) that no warrant was required because the contraband was discovered in an “open field,” Hester v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (1924); and, (2) that the police were on the property pursuant to a valid consent of the owners. I disagree and would affirm.
On June 10, 1974, Pennsylvania State Trooper John Parcell received a radio call, directing him to meet a second trooper on Township Route T436, Mt. Pleasant Township, Columbia County. The troopers were to investigate a report from an anonymous informant that someone was cultivating marijuana in a field located on a farm owned by one Mrs. Martin Sukup. The troopers followed Route T436, a single lane unpaved road, to a farm road on the Sukup property. The Sukup fields which abutted Route T436 had high banks, were posted at regular intervals, and were surrounded by barbed wire fences. The troopers were not certain who owned the field, but assumed that it was Mrs. Sukup.
The troopers entered the field, walked about one hundred yards into the field, and found an unoccupied tent and several plots of plants. One of the officers removed a number of leaves and, subsequently, forwarded them to the State Police Laboratory for chemical analysis.
From June 10, until July 1, the State Police conducted a periodic surveillance to determine who was responsible for the marijuana crop. On July 1, Troopers Parcell and Freed learned that a vehicle with New Jersey license plates was parked near the field. After they arrived at the Sukup farm, they noticed appellee, Mrs. Sukup’s son, *346 and a juvenile who had apparently been working on the marijuana crop. At that point, appellee was arrested; the subsequent search netted tools and fertilizer used to cultivate the plants, and some harvested marijuana.
Appellee filed a motion to suppress. After a hearing, the lower court granted the motion on June 5, 1975.
Initially, the Majority holds that the police were not required to obtain a warrant because the search occurred in an “open-field.” and was thus beyond the protection of the Fourth Amendment: “In Hester v. United States, [supra], federal revenue agents on private land without a search or arrest warrant, observed petitioner Charlie Hester drop a jug of moonshine. The Supreme Court stated: ‘It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. . . . As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers, and effects” is not extended to the open fields.’ 265 U.S. at 58-59 , 44 S.Ct. 445, at 446 .” at 1300.
In 1970, the continued vitality of the “open field” doctrine was raised in this Court. Commonwealth v. Robbins, 216 Pa.Super. 233 , 263 A.2d 761 (1970). The Majority affirmed per curiam. In a concurring opinion, I noted that “[s]ince the search was conducted before December 18, 1967, I would not decide whether appellant’s reasonable expectation of privacy ip the wooded area, Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed. 2d 576 (1967), was violated by. the instant search. •. . .We must apply, therefore, the prior rule of law set forth in Hester v. United States, [supra].” 216 Pa. Super, at 234-35, 263 A.2d at 761-762 (HOFFMAN, J., concurring). AlthQugh the issue has not been squarely addressed by the United States Supreme Court, our Supreme Court has recently cited the open field doctrine with approval. Commonwealth v. Treftz, 465 Pa. 614 , *347 351 A.2d 265 (1976). Treftz , in part, was decided under a Katz rationale: “. . . the Court has been concerned with seeking to answer in any given case whether or not the facts are such as to warrant a finding that the defendant had a ‘reasonable expectation of privacy.’ ‘The Fourth Amendment protects people, not places.’ Katz v. United States, [supra] . .
“. . . [W]e believe that the interest appellant Treftz asserts today, that of an occasional and transient visitor to the Gilkey farmhouse, who last visited the premises three weeks prior to the illegal search, and who had no remaining personal belongings on the property, falls well below the legal standards to justify any reasonable expectation of privacy . . . .” 465 Pa. at 623 , 351 A. 2d at 269 . In addition, however, the Court noted that “. . . it is by no means insignificant to our analysis that the evidence sought to be suppressed, . . ., was discovered in a wooded area 148 yards from the rear fence line which separates the dwelling area, including a cleared yard, from this backwoods area open to hunters. Although the United States Supreme Court decision in Hester v. United States, [supra], pre-dated the current legal search and seizure inquiry, Katz lent implicit support to the ‘open fields’ doctrine.” 465 Pa. at 626 , 351 A. 2d at 270 . 1
Even if “open fields” do not come within the ambit of the Fourth Amendment, that does not end our inquiry in the instant case. Exceptions to the open field doctrine have been framed since Hester . See, generally, Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed. 2d 564 (1971). One specific exception is that an occupier *348 of land has a protected privacy right in the curtilage. Cf. Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968). Some courts have also analyzed the purpose of the police incursion onto the individual’s property, rather than adhering to the common law curtilage analysis. Thus, “[i]n United States v. Davis, 5 Cir. 1970, 423 F.2d 974 , Judge Gewin set out the ground rule for determining the applicability of the ‘plain view’ rule: the question to be addressed is ‘whether the observing officer had “a right to be in the position to have that view.” ’ Id. at 977 . When a law enforcement agent trespasses solely to unearth evidence of crime, he has no ‘right to be in the position to have that view.’ As Judge Gewin stated, ‘[w]here police officers trespass in order to secure the view, we haye not hesitated to find a search.’ (Emphasis added). Id.” United States v. Holmes, 521 F.2d 859 , 869 (5th Cir. 1975), rehearing en banc granted, 525 F.2d 1364 .
I believe that the instant case represents another exception to the “open field” doctrine. Appellee was the son of the owner of the land. 2 The field in which he planted marijuana was surrounded by embankments and barbed wire fences. The land was posted to give notice to all who would trespass that the owner intended to protect his privacy. That is, although we are dealing with a field, it was not an open one, inviting casual intrusion. 3 Further, as in United States v. Holmes, supra, the police *349 incursion was not happenstance; rather, it was a deliberate attempt to collect evidence. Thus, I would hold that the Sukup field was not an open field and that appellee had preserved his fourth amendment rights.
The Majority also holds that, even if the field were within the ambit of the Fourth Amendment, Mr. Sukup had consented to the search. I agree that Mr. Sukup’s intelligent and knowing consent could have been binding on appellee, despite the fact that Mr. Sukup was not the record owner of the property. See United States ex rel. McKenna v. Myers, 232 F.Supp. 65 (E.D.Pa.1964); Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466 , 248 A.2d 197 (1968); Commonwealth v. Rhoads, 225 Pa.Super. 208 , 310 A.2d 406 (1973). The contention that the consent was valid, however, is without merit.
A consent to a search involves a waiver of a constitutional right, which must be made knowingly and intelligently. Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). See also, Belsky, Criminal Procedure in Pennsylvania: The Pre-Trial Issues in Four Parts, 78 Dick.L.Rev. 209, 248 (1973). The burden of proving the alleged waiver remains on the Commonwealth. Commonwealth v. Burgos, 233 Pa.Super. 325 , 299 A.2d 34 (1972).
In the instant case, the Commonwealth failed to meet that burden: the only evidence of consent was a recollection of one of the troopers that in the early 1970’s Mr. Sukup had asked the trooper to keep an eye on the próp-erty due to the report of burglaries and vandalism. There is no suggestion that the police searched the area for any other reason than to discover marijuana. First, the request was too remote in time to provide a continuing invitation to be on the Sukup property. Second, even if the “consent” were valid for some purposes, the police exceeded the scope of the request to “keep an eye on” the Sukup residence when they extended the search into the *350 field. That is, a request to watch the Sukup home could not be construed as a consent to search the entire property.
Therefore, I believe that the lower court’s order should be affirmed.
SPAETH, J., joins in this dissenting opinion.
. The Court cited Katz v. United States, supra, 389 U.S. at 351, n. 8 , 88 S.Ct. at 511 , as authority for its position: “In support of their respective claims, the parties have compiled competing lists of ‘protected areas’ for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 , but that an open field is not. Hester v. United States, [supra].”
. Thus, appellee has standing to raise the issue. See Commonwealth v. White, 459 Pa. 84 , 327 A.2d 40 (1974) cert. denied, 421 U.S. 971 , 95 S.Ct. 1967 , 44 L.Ed.2d 461 (1975); Commonwealth v. Weeden, 457 Pa. 436 , 322 A.2d 343 , cert. denied, 420 U.S. 937 , 95 S.Ct. 1147 , 43 L.Ed.2d 414 (1975).
. Cf. Comment, Model Penal Code, § 221.2 (Proposed Draft, 1962): “ . . . most people have no objection to strangers tramping through woodland or over pasture or open range; but a building is generally intended to keep out persons not licensed by the owner . . . . The theory of Section [221.2] is that where a landowner wishes to assert his right to exclude from open land and to have the backing qf the criminal law, it is pot too much to ask him to give notice.”