Petition — Morrison v. Pennsylvania

, »Upreme Court, U.S,

8 0-6 86 IB FILE D 7

OCT 24 1960

MICHAEL RODAK, JR., QUERK |

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

CRAIG R. MORRISON, Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

Alan Ellis

ELLIS & FOGELNEST

Suite 2200, 1616 Walnut St.

Philadelphia, Pennsylvania 19103

(215) 545-3773

Attorney for Petitioner

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA. PA. 19107 (215) 561-4050 <pob5

QUESTION PRESENTED FOR REVIEW

May an undercover police officer misrepresent his

identity and gain entry to a person’s home under the pre-

tense of conducting lawful business in order to inspect

the premises for evidence of criminal activity?

TABLE OF CONTENTS

Page

Cations t0 Oninions Below ........ 2... e or 1

a ay Fy 5 oF d0'V vo 0 00 0,0 8 ws 2

Constitutional Provisions and Statutes Involved .. 2

8 ae cee ese eeceseeas 3

Reason for Granting the Writ'................. 5

Ne ey nk a's ba dls vee sce eae 10

EE ee ee 10

APPENDIX

Order of the Supreme Court of Pennsylvania

denying Petition for Allowance of Appeal .... A-1

Superior Court Majority Opinion .............. A-2

Superior Court Concurring Opinion .......... A-11

Opinion of the Court of Common Pleas of Chester

RN, UPEVANMER. 1 wee ecco A-21

TABLE OF AUTHORITIES

Causes: Page

Bumper v. North Carolina, 391 U.S. 543 (1968)

Fraternal Order of Eagles v. United States, 57 F.2d

re a ee IE se a eve ee ek ee ee

Gatewood v. United States, 93 U.S. App. D.C. 226,

ee ee Cb oa ne Re ke oe oe ;

Gouled v. United States, 255 U.S. 298 (1921)

Lewis v. United States, 385 U.S. 206 (1966)

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .

United States v. Phillips, 497 F.2d 1131 (9th Cir.

SN oe ire mer ee Neer ean

Other Authorities:

Kitch, Katz v. United States: The Limits of the

Fourth Amendment, 1968 Supreme Court Re-

CEE Cs PET ae ASR CR es Tes

LaFave Search and Seizure: A Treatise on The

Fourth Amendment, Section 8.2(m) (1978) ..

Weinreb, Generalties of the Fourth Amendment, 42

U.. oF Gree, Fe 47, Or CAG) oc 0 6a cl eceess

White, The Fourth Amendment as a Way of Talking

About People: A Study of Robinson and

Matlock, 1974 Supreme Court Review, 165,

CSA SR Ss CREE ee Fars

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

CRAIG R. MORRISON, Petitioner

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

CITATIONS TO OPINIONS BELOW

The majority and concurring Opinions of the Supe-

rior Court of Pennsylvania filed March 21, 1980 are as of

yet unreported and are printed in the Appendix at A.

and A. __, respectively.

The Opinion of the Court of Common Pleas of Ches-

ter County is not reported.

]

2

JURISDICTION

The Order of the Supreme Court of Pennsylvania

denying Petitioner’s Petition for Allowance of Appeal

from the Order and Judgment of the Superior Court of

Pennsylvania was entered on August 29, 1980.

The jurisdiction of this Court is invoked under 27

E.S.C. Section 1257(3). |

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Amendment 4:

“The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.”

United States Constitution, Amendment 14:

“ .. nor shall any State deprive any person of

life, liberty, or property, without due process of law.”

3

STATEMENT OF THE CASE

This is a criminal case in which the Superior Court

of Pennsylvania’ reversed an Order of the Court of Com-

mon Pleas of Chester County” suppressing certain evi-

dence seized from Petitioner’s home. Petitioner unsuc-

cessfully sought review from the Supreme Court of

Pennsylvania’ in the nature of a Petition for Allowance

of Appeal. This Petition for Writ of Certiorari follows.

The relevant facts are as follows:

During the first week of October 1977, Trooper Clif-

ford Shaw, a narcotics investigator with the Pennsylva-

nia State Police went to the residence of Petitioner in

West Goshen Township, Chester County. Petitioner was

not at home, and Trooper Shaw spoke with his sister.

The trooper stated to Petitioner’s sister that he had heard

that Petitioner was in the process of converting a barn

located on the premises into a home, and misrepre-

sented that he was contemplating a similar conversion of

a bar that he owned. He requested permission to exam-

ine the structure to get an idea how the work should be

performed. The trooper was in plain clothes and at no

time did he identify himself as a member of the Pennsy]-

vania State Police. Permission was granted, and Trooper

Shaw examined the outside of the barn, although he did

not venture inside.

On November 1, 1977, Trooper Shaw returned to

Petitioner’s residence. This time Petitioner was present

and working outside the barn. Trooper Shaw, again in

plain clothes, gave a false name and misrepresented to

Petitioner that he had purchased a barn and was

interested in converting it into a photography studio, but

that he lacked the technical expertise to carry out the

planned conversion. Petitioner showed the trooper var-

1. The intermediate level Appellate Court in Pennsylvania.

2. The trial court.

3. The state court of last resort.

4

ious items of craftwork on the outside of the barn.

Trooper Shaw then requested permission to enter and

inspect the interior. Petitioner refused, explaining that

the interior was rather dirty, and that he wanted to delay

any inspection until it could be cleaned. However, Peti-

tioner did open a large shuttered window so that Trooper

Shaw could see the carpentry inside. Making a visual in-

spection through the window, Trooper Shaw observed a

quantity of marijuana.

Later that same day, Trooper Shaw secured a

search warrant. On November 2, 1977, the warrant was

executed and approximately eighty pounds of marijuana

recovered from petitioner’s barn. On February 28, 1978,

Petitioner filed a motion to suppress the evidence seized

during the November 2, 1977 raid. At a hearing on April

20, 1978, Petitioner testified that his consent to Trooper

Shaw being on the premises was the direct result of the

trooper’s failure to properly identify himself and his mis-

representation regarding his purpose in wishing to view

the barn. The trial court ruled that the evidence was in-

admissible based, inter alia, upon the involuntary na-

ture of the Petitioner’s consent. The Superior Court

disagreed holding that the intrusion was with Petition-

er’s voluntary consent inasmuch as it was not “procured

through force or other coercion” and was not an unrea-

sonable invasion of Petitioner’s fourth amendment right

of privacy. Majority Slip Opinion at A-6,7,n.1.

5

REASON FOR GRANTING THE WRIT

This is a case of first impression wherein a state

court has decided an important question of federal law

which has not been, but should be settled by this Court.

When an agent assumes a particular pose in order

to gain entry into certain premises and then obtains in-

formation by engaging in activity not generally expected

of one assuming that pose, that information is illegally

obtained. Thus, an agent may not enter a premises as an

acquaintance of the owner and conduct an unauthorized

surreptitious search and seizure. Gouled v. United

States, 255 U.S. 298, (1921). Nor may an agent compel

his entry into a suspect’s premises to conduct a search

by claiming to be a police officer investigating a non-ex-

istent burglary, United States v. Phillips, 497 F.2d 1131

(9th Cir. 1974); a Western Union agent, Gatewood v.

United States, 93 U.S. App. D.C. 226, 209 F.2d 789

(1953); or a member of a private lodge, Fraternal Order

of Eagles v. United States, 57 F.2d 93 (3rd Cir. 1932).

However, the Fourth Amendment is not violated

when a narcotics agent, by misrepresenting his identity

and stating his willingness to purchase narcotics, gets

himself invited into the defendant’s home, where an un-

lawful narcotics transaction is then consumated. Lewis

v. United States 385 U.S. 206 (1966). Stressing that

“the petitioner invited the undercover agent to this home

for the specific purpose of executing a felonious sale of

narcotics” this Court reasoned that the narcotics in-

volved in the transaction could be introduced in evi-

dence against the defendant because the agent during

his visits to the defendant’s home did not:

“see, hear, or take anything that was not contem-

plated, and in fact intended, by petitioner as a nec-

essary part of his illegal business. Were we to hold

the deceptions of the agent in this case constitution-

ally prohibited, we would come near to a rule that

6

the use of undercover agents in any manner is virtu-

ally unconstitutional per se. Such a rule would, for

example, severely hamper the Government in

ferreting out those organized criminal activities that

are characterized by covert dealing with victims

who either cannot or do not protest.

* co we

The fact that the undercover agent entered petition-

er’s home does not compel a different conclusion.

xe * cd

[W]hen, as here, the home is converted into a

commerical center to which outsiders are invited for

purposes of transacting unlawful business, that

business is entitled to no greater sanctity than if it

were carried on in a store, a garage, a car, or on the

street. A government agent, in the same manner as

a private person, may accept an invitation to do

business and may enter upon the premises for the

very purpose contemplated by the occupant.” 385

U.S. at 427. (Emphasis added).

This court has yet, however, to address the some-

what different question presented in the instant case, to

wit, whether the policy may misrepresent their identity

and purpose to gain entry to a person’s home in order to

make a general survey of the contents for criminality. In

contrast to the situation in Lewis Petitioner did not at-

tempt to engage Trooper Shaw in an illegal transaction,

or to confide to Trooper Shaw his wrongdoing. Petition-

er’s relationship with the Trooper was that of a neighbor

displaying his home in order to give tips on home im-

provement.

The Superior Court Majority Opinion in the instant

case which now represents the law of Pennsylvania does

not afford the citizenry the same degree of protection as

does Lewis. Relying upon Schneckloth v. Bustamonte,

412 U.S. 218 (1973) the state court has held that be-

7

cause Petitioner’s consent to the search by Trooper

Shaw was not the result of force or coercion or given in

response to a lawful claim of authority, Bumper v. North

Carolina, 391 U.S. 543 (1968), the consent was volun-

tary. In response to this analysis, Judge Edmund B.

Spaeth, Jr., in a concurring Opinion in which he was

joined by Judge Donald E. Wieand stated:

“In its most obvious interpretation, the opinion

seems to say that the only limits on police deception

are that the deception must not amount to “force or

other coercion. See in particular Majority Slip op. at

5, 6, n.1. This proposition, is . . . plainly contrary to

settled law... .

ae Xe a

Perhaps the principal difficulty with the majority’s

opinion is its reliance on _ Schneckloth v.

Bustamonte, 412 U.S. 218 (1973). Schneckloth,

however, is not in point. As the majority notes,

Schneckloth, involved in an automobile search con-

ducted by uniformed police officers. The issue be-

fore the Supreme Court was whether the passen-

ger’s consent to the automobile search could be

deemed voluntary in the absence of a warning by

the officers that the passengers had the right to

withhold their consent and refuse to permit the

automobile to be searched. The issue before us,

however, is the propriety of police deception. In

Schneckloth there was no police deception; accord-

ingly, the Court had no occasion to address, and did

not address, the issue before us.” Concurring Slip

Opinion at A-11, 12.

Thus, if permitted to stand, the opinion will permit

the police to deploy a squad of men to pose as gas and

electric company inspectors in order to make a general

survey of the contents of cellars. Plainly, the Fourth

Amendment would prohibit such a practice, notwith-

8

standing that the “inspector” was invited to enter in

each case. Weinreb, Generalties of the Fourth Amend-

ment, 42 U. of Chi. L. Rev. 47, 67 (1974). See also,

Kitch, Katz v. United States: The Limits of the Fourth

Amendment, 1968 Supreme Court Review 133, 151-52.

Such planting procedures would produce in gross a

large number of intrusions and increase the sense of

general vulnerability to such exposure. To validate this

domestic espionage would radically change the sort of

relationship a person may have with those with whom

e deals in the ordinary course of living. White, The

Fourth Amendment as a Way of Talking About People: A

Study of Robinson and Matlock, 1974 Supreme Court

Review. 165, 229.

Lewis recognizes that the ordinary citizen should

have his privacy protected from intrusion by governmen-

tal agents practicing deception by not recognizing any

consent from a stranger’s misrepresentation except

when it includes a stated intention on his part to join in

criminal activity. Thus, Lewis identifies a limit upon re-

sort to deception which can be understood and applied

by the undercover officer or agent before the intrusion

occurs. The limit is one which is likely to free innocent

persons from intrusions into their privacy, for the decep-

tive assertion of an interest in participating in illegal ac-

tivity is unlikely to result in continued association with a

person bent upon only law-abiding activity. See, Il W.

LaFave Search and Seizure: A Treatise on the Fourth

Amendment, Section 8.2(m) (1978).

In Lewis, this Court pointed out that in some in-

stances police deception may violate the Fourth Amend-

ment. The Majority Opinion of the Superior Court here,

however, does not recognize any such limits. In so far

departing from the settled law, the state court has de-

cided an important question of federal constitutional law

which has not been, but should be settled by this Court;

or at the very least, has decided a federal constitutional

9

question in a way in conflict with the applicable decision

of this Court in Lewis.*

In refusing to recognize that fraud and misrepre-

sentation may, under some circumstances, render invol-

untary a consentual search, especially where the police

official misrepresents both his identity and purpose,

Pennsylvania has established a dangerous precedent

which deserves this Court’s review.

The consequences of leaving the decision of the

Pennsylvania Court as the ruling case law would sacri-

fice at the altar of law enforcement expediency the pri-

vacy of the homes of millions of innocent and honest citi-

zens and would subject them to ruse, trickery, fraud and

misrepresentation by police in order to gain entry there-

in. This should not be allowed to happen.

4. The Superior Court concluded that the type of investigation

engaged in by the police officer in this case did not amount to im-

proper police conduct because the officer had “reasonable suspi-

cion” that the defendant was storing marijuana in his barn and that,

as such, it was permissible for the officer to “assume an undercover

role and resolve his uncertainty upon viewing the interior of the

[premises]. Majority Slip Opinion at 7. Thus, under the holding of

this case, any time a police officer may have a “reasonable suspi-

cion” this would justify his using deceptive tactics to gain a fraudu-

lently procured consent to view the interior of the home of a private

citizen. In short, the Superior Court has set up a new standard by

which police may gain access to private homes without a warrant.

10

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the Judgment and Opinion of the Supreme and

Superior Courts of Pennsylvania.

Respectfully submitted,

ELLIS & FOGELNEST

By:

Alan Ellis

Suite 2200, 1616 Walnut St.

Philadelphia, Pennsylvania 19103

(215) 545-3773

Attorney for Petitioner,

Craig R. Morrison

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of October,

1980, three copies of the Petition for Writ of Certiorari

were mailed by first class mail to James Freeman, Es-

quire, District Attorney of Chester County, Chester

County Courthouse, West Chester, Pennsylvania 19380.

I further certify that all parties required to be served

have been served.

Alan Ellis

Suite 2200, 1616 Walnut St.

Philadelphia, Pa. 19103

(215) 545-3773

APPENDIX

A-1

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Carl Rice

Prothonotary 456 City Hall

Catherine E. Lyden Philadelphia, 19107

Deputy Prothonotary (215) 686-358 1/84

September 5, 1980

Fred T. Cadmus III, Esq.

Cadmus, Patten and Werner

10 North Church Street

West Chester, Pa. 19380

Re: Commonwealth v. Craig R. Morrison, Petitioner

No. 299 E. D. Misc. Docket 1980

Dear Sir:

This is to advise you that on August 29, 1980, the

Supreme Court entered its Order denying the Petition

for Allowance of Appeal in the above-captioned matter.

Very truly yours,

Carl Rice, Esq.

Prothonotary

By

Catherine E. Lyden

Deputy Prothonotary

CEL:Itl

cc: William H. Lamb, Esq.

A-2

J-363 (1979)

COMMONWEALTH OF _ ) IN THE

PENNSYLVANIA, ) SUPERIOR COURT OF

Appeilant ) PENNSYLVANIA

Vv. )

) No. 1404

CRAIG R. MORRISON ) October Term, 1978

Appeal from the Order of the Court of Com-

mon Pleas of Chester County, at No. 2049-

77, Criminal Division.

Before: CERCONE, P.J., PRICE, VAN DER

VOORT, SPAETH, HESTER, AND

WIEAND,* JJ.

Opinion by PRICE, J.

The instant appeal by the Commonwealth is from

an order by Judge Thomas A. Pitt, Jr., of the Chester

County Court of Common Pleas, suppressing evidence

seized pursuant to a warrant executed at appellee’s resi-

dence. After reviewing the record, we find no violation of

appellee’s fourth amendment right to be free from an

unreasonable search and seizure, and reverse the order

of the trial court.

During the first week of October 1977, Trooper Clif-

ford Shaw, a narcotics investigator with the Pennsylva-

nia State Police, went to the residence of appellee in

West Goshen Township, Chester County. Appellee was

not at home, and Trooper Shaw spok with his sister.

The trooper stated to appellee’s sister that he had heard

that appellee was in the process of converting a barn lo-

cated on the premises into a home, and misrepresented

that he was contemplating a similar conversion of a barn

that he owned. He requested permission to examine the

“Judge Donald E. Wieand is sitting by special designation.

2m

A-3

structure to get an idea how the work should be per-

formed. The trooper was in plain clothes and at no time

did he identify himself as a member of the Pennsylvania

State Police. Permission was granted, and Trooper Shaw

examined the outside of the barn, although he did not

venture inside. No incriminating evidence was obtained.

The trooper did not explain why he was investigating ap-

pellee during the first week in October 1977.

As early as October 15, 1976, and again on October

17, 1977, Trooper Shaw received information from two

sources indicating that appellee was storing large

quantities of drugs in the barn in West Goshen Town-

ship. On November 1, 1977, Trooper Shaw returned to

appellee’s residence. This time appellee was present and

working outside the barn. Trooper Shaw, again in plain

clothes, gave a false name and misrepresented to appel-

lec chat he had purchased a barn and was interested in

converting it into a photography studio, but that he

lacked the technical expertise to carry out the planned

conversion. Appellee showed the trooper various items of

craftwork on the outside of the barn. Trooper Shaw then

requested permission to enter and inspect the interior.

Appellee refused, explaining that the interior was rather

dirty, and that he wanted to delay any inspection until it

could be cleaned. Without any further request by the

trooper, appellee then approached a large shuttered win-

dow, pulled open the shutters and invited Trooper Shaw

to inspect the interior. Making a visual inspection

through the window, Trooper Shaw observed a quantity

of marijuana.

Later that same day, Trooper Shaw secured a

search warrant. On November 2, 1977, the warrant was

executed and approximately eighty pounds of marijuana

recovered from appellee's barn. On February 28, 1978,

appellee filed a motion to suppress the evidence seized

during the November 2, 1977 raid. At a hearing on April

20. 1978, appellee testified that his consent to Trooper

Shaw being on the premises was the direct result of the

A-4

trooper’s failure to properly identify himself and his mis-

representation regarding his purpose in wishing to view

the barn. The trial court ruled that the evidence was in-

admissible based, inter alia, upon the involuntary na-

ture of the appellee’s consent. We disagree and hold that

the intrusion was with consent and was not an unrea-

sonable invasion of appellee’s fourth amendment right of

privacy. |

In determining whether appellee’s consent to the

visual search of his premises, albeit procured through

the fraudulent representation of Trooper Shaw was nev-

ertheless voluntary, we begin with the basic tenet that

the fourth amendment is intended to safeguard from un-

reasonable government intrusions those areas in which

a person displays a reasonable expectation of privacy.

United States v. Chadwick, 433 U.S. 1 (1977); Katz v.

United States, 389 U.S. 347 (1967). With few excep-

tions, an intrusion into a place of privacy may not be

effected absent a warrant issued based upon probable

cause. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978);

Coolidge v. New Hampshire, 403 U.S. 443 (1971). One

of these exceptions is when a criminal suspect consents

to the search. Scheneckloth v. Bustamonte, 412 U.S. 218

(1973); Vale v. Louisiana, 399 U.S. 30 (1970); Katz v.

United States, supra. Instantly, we must determine

whether consent may be deemed “voluntary” when pro-

cured by a police official who misrepresents both his

identity and purpose.

In Schneckloth v. Bustamonte, supra, the Supreme

Court was required to define the voluntariness of con-

sent for fourth amendment purposes. In that case, the

police had stopped a vehicle containing a driver and five

passengers for a minor traffic offense. The police re-

quested and obtained permission to search the trunk of

the vehicle, and incriminating evidence against one of

the passengers was discovered. The issue on appeal was

whether permission to search could be deemed volun-

tary in the absence of an express warning that the sus-

A-5

pect had a right to refuse that permission. In rejecting

petitioner’s contention that the right to be free from an

unreasonable search and seizure was analogous to the

fifth amendment provision against self-incrimination

and the sixth amendment right to counsel, thus requir-

ing a modified Miranda warning prior to the consentual

search, the Supreme Court undertook an extensive anal-

ysis regarding the fourth amendment protection.

“There is a vast difference between those rights

that protect a fair criminal trial and the rights guar-

anteed under the Fourth Amendment. Nothing, ei-

ther in the purpose behind requiring a ‘knowing’

and ‘intelligent’ waiver of trial rights, or in the prac-

tical application of such a requirement suggests

that it ought to be extended to the constitutional

guarantee against unreasonable searches and sei-

zures.

A strict standard of waiver has been applied to

those rights guaranteed to a criminal defendant to

insure that he will be accorded the greatest possible

opportunity to utilize every facet of the constitu-

tional model of a fair criminal trial. . . .

The protections of the Fourth Amendment are

of a wholly different order, and have nothing what-

ever to do with promoting the fair ascertainment of

truth at a criminal trial. Rather, as Mr. Justice

Frankfurter’s opinion for the Court put it in Wolf v.

Colorado, 338 US 25, 27, 93 L Ed 1782, 69 S Ct

1359, the Fourth Amendment protects the ‘security

of one’s privacy against arbitrary intrusion by the

police. . . .. In declining to apply the exclusionary

rule of Mapp v. Ohio, 367 US 643, 6 L Ed 2d 1081,

81 S Ct 1684, 84 ALR2d 933, to convictions that

had become final before rendition of that decision,

the Court emphasized that ‘there is no likelihood of

unreliability or coercion present in a search-and-sei-

zure case,’ Linkletter v. Walker, 381 US 618, 638,

A-6

14 L Ed 2d 601, 85 S Ct 1731. . . . The Fourth

Amendment ‘is not an adjunct to the ascertainment

of truth.’ The guarantees of the Fourth Amendment

stand ‘as a protection of quite different constitu-

tional values—values reflecting the concern of our

society for the right of each individual to be let

alone. To recognize this is no more than to accord

those values undiluted respect.’ Tehan v. United

States ex rel. Shott, 382 US 406, 416, 15 L Ed 2d

453, 86 S Ct 459.” Id. at 241-42.

In determining the proper test for voluntariness under

the fourth amendment, the Court established the follow-

ing guidelines:

“(W]hether a consent to a search was in fact ‘volun-

tary’ or was the product of duress or coercion, ex-

press or implied, is a question of fact to be deter-

mined from the totality of all the circumstances.

_. . {I]f under all the circumstances it has ap-

peared that the consent was not given voluntarily —

that it was coerced by threats or force, or granted

only in submission to a claim of lawful authority —

then we have found the consent invalid and the

search unreasonable.” Id. at 227, 233 [emphasis

added].

Therefore, the voluntariness of a defendant’s consent to

a search is determined by whether the consent was pro-

cured through force or other coercion. Because appellee

has not claimed that his consent to the search by

Trooper Shaw was the result of force or coercion, we

cannot conclude that the consent was involuntary under

the standards of Schneckloth v. Bustamonte, supra. Nor

do we find any trace of inherent coercion, since the na-

ture of the request to view the interior of the barn carried

an implication that appellee was free to prohibit such a

view. See United States v. Griffin, 530 F.2d 739 (7th Cir.

1976); cf. Bumper v. North Carolina, 391 U.S. 543

A-7

(1968); Johnson v. United States, 333 U.S. 10 (1948);

Amos v. United States, 255 U.S. 313 (1921) (consent in-

voluntary when given in response to lawful claim of au-

thority). Finally, we find distinguishable those cases

cited by appellee in which the activity of the undercover

agent went beyond a mere misrepresentation to gain ac-

cess, Gouled v. United States, 255 U.S. 298 (1921)

(rummaging through private papers), or were decided

prior to the decision in Scheckloth v. Bustamonte, supra,

regarding the voluntariness aspect of a fourth amend-

ment search.' See Fraternal Order of Eagles v. United

States, 57 F.2d 93 (3d. Cir. 1932) (‘false representa-

tions” prohibited); United States v. Reckis, 119 F. Supp.

687 (D. Mass. 1954); United States v. Mitchneck, 2 F.

Supp. 225 (M.D. Pa. 1933) (“fraud and stealth” prohib-

ited); Commonwealth v. Wright, 411 Pa. 81, 190 A.2d

709 (1963) (“deceit and misrepresentation” prohibited);

1. We note that although several courts have decided, subse-

quent to Schneckloth v. Bustamonte, supra, that fraud and misrep-

resentation renders involuntary a consentual search, see, e.g.,

United States v. Griffin, 530 F.2d 739 (7th Cir. 1976); United States

v. Rothman, 492 F.2d 1260 (9th Cir. 1974); United States v.

Robson, 477 F.2d 13 (9th Cir. 1973); In re Robert T., 8 Cal. App. 3d

990, 88 Cal. Rptr. 37 (1970), in most of these cases the discussion

regarding fraud and misrepresentation was dicta and unrelated to

the specific events under scrutiny. Moreover, as authority for such a

conclusion, the courts typically cited Gouled v. United States,

supra, in which an undercover agent rummaged through the defen-

dant’s papers in his absence, and Bumper v. North Carolina, supra,

in which consent to search was obtained in response to a misrepre-

sentation by the police that they had a valid search warrant and the

person was without authority to resist their search. Therefore, the

dicta expoused by the courts is of questionable value, and the au-

thority for that dicta is wholly inapplicable to the instant case. Other

courts that have recently confronted the issue have impliedly held

that a misrepresentation made to secure permission to conduct a

search does not render the permission involuntary. Cf., United

States v. Raines, 536 F.2d 796 (8th Cir. ), cert. denied, 429 U.S. 925

(1976); United States v. Novello, 519 F.2d 1078 (5th Cir. 1975),

cert. denied, 423 U.S. 1060 (1976).

A-8

Commonwealth v. Szukics, 212 Pa. Superior Ct. 517, 243

A.2d 198 (1968) (dicta) (“stealth deceit or misrepresen-

tation” prohibited).

We note, moreover, that the nature of certain

crimes permits, and even requires, the police to resort to

various forms of stealth to adequately perform their in-

vestigative functions. Thus, trickery has been recog-

nized as a permissible means for securing confessions,

See, e.g., Frazier v. Cupp, 394 U.S. 731 (1969); Com-

monwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974);

Annot., 99 ALR 2d 772 (1965), for gaining the confi-

dence of criminal perpetrators by undercover agents,

see, e.g., Lewis v. United States, 385 U.S. 206 (1966);

United States v. Glassel, 488 F.2d 143 (9th Cir. 1973),

cert. denied, 416 U.S. 941 (1974), and in the execution

of a search warrant. See e.g., Commonwealth v. Duncan,

257 Pa. Superior Ct. 277, 390 A.2d 820 (1978) (opinion

in support of affirmance); Commonwealth v. Regan, 254

Pa. Superior Ct. 555, 386 A.2d 89 (1978). Therefore,

based upon the totality of the circumstances, we cannot

conclude that the ruse employed by Trooper Shaw was

so inherently coercive as to render appellee’s consent in-

voluntary, nor do we believe that the consent was ob-

tained in a manner such that the evidence seized should

be deemed unreliable.

Finally, we do not believe that the investigative

technique employed by Trooper Shaw was so egregious

as to warrant the invoking of the exclusionary doctrine

to preserve the intregrity of the judicial system or dis-

courage intolerable police conduct. See Dunaway v. New

York, us, , 60 L.Ed. 2d 824 (1979); United

States v. Calandra, 414 U.S. 338 (1974); Mapp v. Ohio,

367 U.S. 643 (1961); Commonwealth v. Musi, Pa.

, 404 A.2d 378 (1979). In the instant case, the in-

vestigating officer had a reasonable suspicion that appel-

lee was storing marijuana and other drugs in his barn.

In an effort to gather further evidence to either substan-

tiate or dispel his suspicion, Trooper Shaw assumed an

A-9

undercover role and resolved his uncertainty upon view-

ing the interior of appellee’s barn. In an analogous con-

text involving an undercover agent, the Supreme Court

has stated:

“Neither this Court nor any member of it has

ever expressed the view that the Fourth Amend-

ment protects a wrongdoer’s misplaced belief that a

peson to whom he voluntarily confides his wrongdo-

ing will not reveal it.

... ‘The risk of being overheard by an eaves-

dropper or betrayed by an informer or deceived as to’

the identity of one with whom one deals is probably

inherent in the conditions of human society. . . .’

[Lopez v. United States, 373 U.S. 427], at 465, 10

L.ed 2d [462,] 486.” Hoffa v. United States, 385

U.S. 293, 302-03 (1966).

See Lewis v. United States, supra; Commonwealth v.

Herron, 243 Pa. Superior Ct. 319, 365 A.2d 871 (1976).

Appellee attempts to distinguish those cases involving

undercover agents who conceal their identity to pur-

chase drugs from a willing seller from the instant case in

which both the identity of the agent and his purpose

were concealed. It is appellee’s contention that in the

Hoffa, Lewis, and Herron cases cited above, the defen-

dants fully intended to reveal the incriminating evidence

to the informants and were only mistaken regarding

their undercover role. In contrast, appellee claims that

he only intended to permit Trooper Shaw to view the in-

terior of his barn for purposes of observing the interior

decorations, but did not intend to reveal the incriminat-

ing evidence, and that that trooper’s action in observing

marijuana amounted to a “surreptitious and general

search” beyond that which was authorized. We find this

claim to be without merit and reject appellee’s assertion

that his unarticulated subjective intent is the touchstone

by which a consentual search may be conducted. See

A-10

United States v. Raines, 536 F.2d 796 (8th Cir.), cert.

denied, 429 U.S. 925 (1976). Indeed, the supreme court

of this Commonwealth has determined that even a po-

liceman’s misrepresentation regarding his subjective in-

tent is permissible. See Commonwealth v. Brown, 437

Pa. 1, 261 A.2d 879 (1976), aff'd sub nom on habeas cor-

pus, Brown v. Brierley, 438 F.2d 954 (3d Cir.), cert. de-

nied., 402 U.S. 997 (1971). As this court stated in Com-

monwealth v. Weimer, Pa. Superior Ct. _ 396

A.2d 649, 651 (1979), “One cannot envelope [sic] one-

self with the cloak of fourth amendment protection

while leaving gaping holes in the fabric.”

Therefore, we conclude that appellee’s consent to

the search was voluntary and was not procured through

force or coercion, express or implied, and that the inves-

tigative technique employed by Trooper Shaw was not

contrary to public policy.

The order of the trial court suppressing the evi-

dence is reversed, and the case remanded for further

proceedings consistent with this opinion.

SPAETH, J., files a concurring opinion in which

WIEAND, J., joins.

A-11

COMMONWEALTH OF : IN THE

PENNSYLVANIA SUPERIOR COURT OF

Appellant PENNSYLVANIA

v. : Philadelphia District

CRAIG R. MORRISON : No. 1404

October Term 1978

Appeal from the Order of the Court of Com-

mon Pleas of Chester County, at No. 2049-

77, Criminal Division.

EN BANC

Before: CERCONE, P.J., PRICE, VAN DER VOORT,

SPAETH, HESTER AND WIEAND, JJ.

Concurring Opinion By SPAETH, J.:

I agree with the majority that we should reverse the

order of the lower court. However, I am unable to join

the majority's opinion, for I am unable to discern from it

by what rule the majority would determine the propriety

of police deception. In its most obvious interpretation,

the opinion seems to say that the only limits on police

deception are that the deception must not amount to

“force or other coercion.” See in particular Majority Slip

op. at 5, 6, n. 1. This proposition, however, is so plainly

contrary to settled law that one must ask whether per-

haps the opinion is not intended to mean something

else. There is no reason for such ambiguity. Examina-

tion of the pertinent cases will disclose the limits that

have been imposed on police deception. Admittedly, the

exact extent of those limits has not been settled, and

cases of police deception may be imagined that do not

fall within the decided cases, and in Which it would be

difficult to say whether the limits had or had not been

exceeded. The present case, however, is not such a case.

Perhaps the principal difficulty with the majority’s

opinion is its reliance on Schneckloth v. Bustamonte,

A-12

412 U.S. 218 (1973).' Schneckloth, however, is not in

point. As the majority notes, Schneckloth involved in

automobile search conducted by uniformed police offi-

cers. The issue before the Supreme Court was whether

the passengers’ consent to the automobile search could

be deemed voluntary in the absence of a warning by the

officers that the passengers had the right to withhold

their consent and refuse to permit the automobile to be

searched. The issue before us, however, is the propriety

of police deception. In Schneckloth there was no police

deception; accordingly, the Court had no occasion to ad-

dress, and did not address, the issue before us. The

Court did address the issue before us in the two other

cases — Hoffa v. United States, 385 U.S. 293 (1966),

and Lewis v. United States, 385 U.S. 206 (1966) — and

those cases should be the starting point of our discus-

sion.”

1. The majority has failed to note that this court has jurisdic-

tion to hear this appeal since the Commonwealth has stated in its

brief that if the lower court's order is affirmed, it cannot effectively.

prosecute appellee. The record is not inconsistent with this state-

ment. See Commonwealth v. Kunkle, Pa. Superior Ct.

__, A.2d ___, (J. 1571/76, filed Aug. 1, 1979).

Also, it should be noted that the ultimate issue before this court

concerns the validity of the search warrant that was executed on

Nov. 2, 1977. Probable cause for the issuance of that warrant was

based on information Trooper Shaw received from undisclosed in-

formants and on Trooper Shaw's observations at appellee's resi-

dence on Nov. 1. Shaw's earlier visit at appellee's residence during

the first week in October is not mentioned in the search warrant,

and there is no showing that the observations made during that visit

influenced the issuance of the warrant.

2. The majority correctly perceives that the decisions in Fra-

ternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932);

United States v. Reckis, 119 F. Supp. 687 (D. Mass. 1954); and

United States v. Mitchneck, 2 F. Supp. 225 (M.D. Pa. 1933), have

uncertain precedential value. The continuing validity of those

cases, however, was not undercut by Schneckloth, as the majority

supposes, but by Lewis and Hoffa.

A-13

In Lewis, the Supreme Court held that the fourth

amendment was not violated when a narcotics agent, by

misrepresenting his identity and stating his willingness

to purchase narcotics, got himself invited into the defen-

dant’s home, where an unlawful narcotics transaction

was then consummated. The Court reasoned that the

narcotics involved in the transaction could be introduced

in evidence against the defendant because the agent

during his visits to the defendant’s home did not “see,

hear or take anything that was not contemplated, and in

fact intended, by [the defendant] as a necessary part of

his illegal business,” 385 U.S. at ___. In Hoffa, the

Court defined the issue as “whether evidence obtained

by the Government by means of deceptively placing a se-

cret informer in the quarters and councils of a defendant

during one criminal trial so violates the defendant's

Fourth, Fifth and Sixth Amendment rights that suppres-

sion of such evidence is required in a subsequent trial of

the same defendant on a different charge.” In conclud-

ing that suppression was not required, the Court held

that the fourth amendment does not protect a wrongdo-

er’s misplaced belief that a person to whom he voluntar-

ily confides his wrongdoing will not reveal it. Accord:

United States v. White, U.S. ____ (1971); On Lee v.

United States, 343 U.S. 747 (1952).

In beth Lewis and Hoffa, the Supreme Court

pointed out that is some instances police deception may

violate the fourth amendement. In particular, the Court

contrasted the situations in those cases with the situa-

tion in Gouled v. United States, 255 U.S. 298 (1921). In

Gouled, a business associate of the defendant's, under

the direction of federal officers, pretended to pay a

friendly call upon the defendant, and upon gaining ad-

mission to the defendant's office, in the defendant's ab-

sence seized and carried away documents belonging to

the defendant. This search and seizure, the Court held,

violated the fourth amendment.

A-14

It is apparent that the present case falls somewhere

between, on the one hand, Lewis and Hoffa, and on the

other, Gouled. In contrast to the situation in Lewis and

Hoffa, appellee did not attempt to engage Trooper Shaw

in an illegal transaction, or to confide to Trooper Shaw

his wrongdoing. Appellee’s relationship with the trooper

was that of a neighbor displaying his home in order to

give tips on home improvement. Thus, appellee has a

better argument than did the defendaut in Lewis or

Hoffa. In contrast to the situation in Gouled, Trooper

Shaw did not exceed the scope of appellee’s invitation to

observe his home, and did not conduct a surreptitious

search and seizure.* When appellee opened the shutters

of his home, the marijuana inside was revealed for the

trooper to see. Thus, here the police have a better argu-

ment than did the police in Gouled.

This contrast suggests that a helpful way to go

about deciding the present case is to consider whether

appellee’s situation was different enough from the situa-

tion in Lewis and Hoffa to require a different result. In

undertaking this consideration, the cases following

Lewis and Hoffa may be divided into two groups. The

first group of cases is not particularly helpful, for it com-

prises cases involving an illegal business transaction be-

tween a defendant and an undercover agent, i.e., cases

substantially identical to Lewis and Hoffa. United States

v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied,

435 U.S. 926 (1978); United States v. Hutchinson, 488

F.2d 484 (8th Cir. 1973), cert. denied sub nom. Ennis v.

United States, 417 U.S. 915 (1974); United States v.

Glassel, 488 F.2d 143 (9th Cir. 1973), cert. denied, 416

U.S. 941 (1974); United States v. Ryles, 451 F.2d 190

(3d Cir. 1971), cert. denied, 406 U.S. 926 (1972);

3. Although appellee presented evidence at the suppression

hearing that Trooper Shaw did exceed the scope of his invitation,

the suppression court found credible Trooper Shaw’s relation of

events, i.e., the he observed only those areas appellee allowed him to

observe.

A-15

United States v. Boggus, 411 F.2d 110 (9th Cir. 1969);

United States v. Haden, 397 F.2d 460 (7th Cir. 1968),

cert. denied 396 U.S. 1027 (1970); Bickar v. Gray, 380

F. Supp. 804 (N.D. Ohio 1974).

The second group of cases, however, is helpful, for

it comprises cases in which the federal courts have ex-

tended the rationale in Lewis and Hoffa to hold that

when a defendant invites into his home an undercover

agent to consummate what is a lawful transaction, but in

ensuing discussion directs the agent’s attention to in-

criminating evidence, the agent’s observation of the evi-

dence does not constitute an unlawful search and sei-

zure. Thus, in United States v. Guidry, 534 F.2d 1220

(6th Cir. 1976), an undercover agent, disguised as a

“helper,” accompanied the service representative of a

printing company on a visit to the defendant’s home.

The pretended purpose of the representative’s visit was

to inspect a part of defendant’s printing press the defen-

dant was attempting to sell. The real purpose was to en-

able the undercover agent to inspect the press to deter-

mine whether it had been used in counterfeiting. The

Court held that the agent’s observations of the press dur-

ing the visit were lawful. Similarly, in United States v.

Bullock, 590 F.2d 117 (5th Cir. 1979), an undercover

agent pretended to the defendant to be interested in

joining the Ku Klux Klan. The defendant invited the

agent into his home, where he opened a wooden cabinet

and displayed to the agent several firearms. The Court

held that the agent’s observation of the firearms was a

proper basis for a search warrant for their seizure.

Given this evolution of the cases, it is apparent that

the issue we must decide is whether the Guidry - Bull-

ock extension of Lewis and Hoffa encompasses the

present case. In approaching this question, it is impor-

tant to emphasize how very limited the Guidry - Bullock

extension is. The federal courts have not forgotten the

warning in Lewis, Hoffa, and Gouled that police decep-

tion will sometimes vitiate a defendant’s consent to a

A-16

search. Thus, in criminal prosecutions for income tax

evasion, it is a well-established rule that “a consent

search is unreasonable under the Fourth Amendment if

the consent was induced by the deceit, trickery or mis-

representation of the Internal Revenue Agent.” United

States v. Robson, 477 F.2d 13, 17 (9th Cir. 1973). Ac-

cord: United States v. Tweel, 550 F.2d 297 (5th Cir.

1977); United States v. Rothstein, 530 F.2d 1275 (Sth

Cir. 1976); United States v. Dawson, 486 F.2d 1326 (Sth

Cir. 1973); United States v. Bland, 458 F.2d 1 (5th Cir. )

cert. denied, 409 U.S. 843 U.S. (1972); United States v.

Jaskiewicz, 433 F.2d 415 (3d Cir. 1970), cert. denied,

400 U.S. 1021 (1971); United States v. Tonahill, 430

F.2d 1042 (5th Cir.), cert. denied, 400 U.S. 943 (1970);

United States v. Prudden, 424 F.2d 1021 (5th Cir. ), cert.

denied 400 U.S. 831 (1970); Spahr v. United States, 409

F.2d 1303 (9th Cir.), cert. denied, 396 U.S. 840 (1969);

Cohen v. United States, 405 F.2d 34 (8th Cir. 1968),

cert. denied, 394 U.S. 943 (1969); United States v.

Sclafani, 265 F. 2d 408 (2d Cir.), cert. denied, 360 U.S.

918 (1959); United States v. Lewis, 274 F. Supp. 184

(S.D.N.Y. 129%). This rule, moreover, is but a corollary

of the general rule, applicable in all criminal prosecu-

tions, that “[w] hen an agent assumes a particular pose

in order to gain entry into certain premises and then ob-

tains information by engaging in activity not generally

expected of one assuming that pose, that information is

illegally obtained.” United States v. Ressler, 536 F.2d

208, 211 (7th Cir. 1976). See also United States v.

Griffin, 530 F.2d 739 (7th Cir. 1976) (“Trickery, fraud,

or misrepresentation on the part of the police to gain en-

try naturally undermines the voluntariness of any con-

sent”).4

4. As noted at the outset of this opinion, the majority opinion

implies, if it does not say, that under present law police deception

will never render involuntary a defendant’s consent to search, at

least so long as the deception falls short of “force or other coercion.”

A-17

Nevertheless, it is clear, in my opinion, that the

Guidry-Bullock extension of Lewis and Hoffa does en-

compass the present case. While this case differs from

Guidry and Bullock to the extent that in each of those

cases the defendant specifically directed the agent’s at-

tention to the incriminating evidence — in Guidry the

printing press, in Bullock the firearms — whereas in this

case appellee merely opened the shutters of his resi-

dence so that Trooper Shaw could inspect the carpentry

inside, the difference is inconsequential. When appellee

opened the shutters, the marijuana was in plain view for

the trooper to see. F'ygn though appellee did not specifi-

cally direct the trooper’s attention to the marijuana, he

necessarily had to anticipate that the trooper would see

it if the shutters were opened. To state the point in a dif-

ferent way: In Guidry the defendant knew that he was

using his printing press for counterfeiting. He neverthe-

less permitted the undercover agent to examine the

press. No doubt he did so because he believed that the

agent was a private printer, who would not know or be

able to discover that the press was being used for coun-

terfeiting. This belief, however, was held to be mis-

NOTE 4 — (Continued)

Majority slip op. at 5,6 n. 1. The cases the majority opinion cites do

not support this proposition. In United States v. Raines, 536 F.2d

796 (8th Cir. ), cert. denied, 4229 U.S. 925 (1976), deceit was used by

an undercover agent only to gain entry into the defendant's house.

Once inside, and before any incriminating evidence was disclosed,

the agent revealed his official identity. In United States v. Novello,

519 F.2d 1078, 1081 (Sth Cir. 1975), cert. denied, 423 U.S. 1060

(1976), the court stated: “Since it is plain that Novello had no rea-

sonable expectation of privacy in the common area concerned, the

consent analysis which would otherwise have been necessary need

not be undertaken and we express, of course, no view upon it.”

Moreover, it may be noted that having implied that fraud and deceit

will never vitiate consent to search, the majority opinion then quali-

fies, or contradicts, the implication by referring to “investigative

techniques] ... contrary to public policy,” Majority slip op. at 8,

without, however, identifying what such techniques might be.

—_—

A-18

placed. Here, appellee knew that he had marijuana. He

nevertheless permitted the undercover agent to see it.

No doubt he did so because he believed that the agent

was a photographer, who would not recognize the mari-

juana as marijuana, or if he did recognize it, would not

tell anyone about it. This belief was misplaced. As a mat-

ter of law, as it has evolved in the federal courts,” I see

no reason to treat the defendant’s misplaced belief in

Guidry differently than appellee’s misplaced belief here,

simply because in Guidry the defendant directed the

agent’s attention more specifically to the incriminating

evidence than appellee did; appellee’s direction of

Trooper Shaw’s attention to the marijuana was specific

enough.

Although this case does not go beyond Guidry and

Bullock, one may easily suppose a case that would. For

5. During the suppression proceedings below, appellee alleged

the violation of his fourth amendment rights only; he did not allege

any violations under our state constitution. Therefore, this court has

no occasion to decide in this case whether our state constitution

goes further than the federal constitution in imposing limits on the

use of police deception. See Commonwealth v. DeJohn, _ Fa.

A.2d (filed May 17, 1979) (case where Article I,

section 8, of the state constitution provided greater safeguards than

the federal constitution). Commonwealth v. Brown, 437 Pa. 1.

A.2d _____ (1970), however, may serve as a starting point in deter-

mining how a state court would interpret the state constitution.

In this regard it may be noted that the federal law has changed,

and that the result of this case would have been different had the

case arisen prior to the decisions in Lewis and Hoffa. In United

States v. Mitchneck, 2 F. Supp. 255 (M.D. Pa. 1933), prohibition

agents were admitted to the residence of Mitchneck on the repre-

sentation that they were refrigerator salesmen and that they had

mutual acquaintances with Mitchneck. The Court held that the de-

ceit of the agents vitiated the consent to enter. To similar effect are

Fraternal Order of Eagles v. United States, 57 F.2d 93 (3rd Cir.

1932), and United States v. Reckis, 119 F. Supp. 687 (D. Mass.

1954). This change in the federal law occurred because the court

was persuaded in Lewis and Hoffa that effective enforcement of the

vice, liquor and narcotics laws required greater use of police decep-

tion.

A-19

example, suppose that an undercover agent enters a sus-

pect’s home under the pretense of conducting lawful

business, and during the visit, while within the bounds

of the suspect’s invitation to enter the home, observes

evidence of the suspect had reason to believe would not

be observed. See generally Il W. LaFave, Search and Sei-

zure: A Treatise on the Fourth Amendment §8.2(m)

(1978). I have not seen a federal case involving this sort

of situation. To date, the federal cases have gone no fur-

ther than to hold that one who knowingly reveals in-

criminating evidence runs the risk that the person to

whom the evidence is revealed is a government agent

who will recognize the evidence and will report his ob-

servations of it.

The problem of defining the limits to be set on the

use of police deception is one of the most difficult prob-

lems of the criminal law. It may well be that certain sorts

of criminals cannot be convicted unless the police are

permitted to resort to deception.° The question is then

presented: Is it worth convicting them? For when the

police are permitted to resort to deception, there are

losses as well as gains. The gains may be considerable —

for example, the detection and elimination of a carefully

organized traffic in drugs. But the losses may also be

considerable. The law of search and seizure is not con-

cerned with protecting the criminal’s right of privacy but

the honest citizen’s right. If we are to be able to enjoy

liberty and pursue happiness, we must know what part

of our world is real and what part is illusion — that our

home is our castle, and not a broadcasting center for hid-

den police transmission devices; that a repairman is a re-

pairman, a business associate a business associate, and

not a police agent. Permit the police to make our world

illusion, and no one, neither criminal nor honest citizen,

will be free. Thus in every case involving police decep-

tion the court must balance the gains and losses incident

6. See note 5, supra.

A-20

to permitting the deception. Given the difficulty and im-

portance of striking the proper balance, the court should

bend every effort to decide each case only on its facts,

never going further than it must, and never indulging in

broad language that may be misunderstood and so en-

courage unwholesome practices. i have tried to apply

these principles in deciding the present case. Doing so, I

have concluded that on its facts, the case presents a use

of police deception not at all novel, and within the de-

cided cases. Beyond that, I choose not to go.

I concur in the majority's order reversing the order

of the lower court.

WIEAND, J., joins in this opinion.

A-21

COMMONWEALTH OF : IN THE

PENNSYLVANIA : COURT OF

COMMON PLEAS

US. : CHESTER COUNTY,

: PENNSYLVANIA

CRAIG R. MORRISON: No. 2049, 1977

Criminal Action

OPINION

Following pretrial hearing on Defendant’s Motion to

Suppress Statements and Evidence, the suppression

Court ordered that certain items alleged to be marijuana,

scales and other evidence be suppressed. The Common-

wealth was unable to proceed, and the jury was dis-

missed. This appeal followed.

The facts as developed at the hearing are that

Trooper Clifford L. Shaw, a narcotics investigator for the

Pennsylvania State Police, went to the home of Defen-

dant’s sister in the first week of October 1977. He was in

plain clothes at the time and stated to the sister that he

had heard that her brother was converting a barn on the

property into a house. The Trooper asked if he could look

about, and permission was granted. Trooper Shaw then

returned to the Defendant’s home on November 1, 1977.

He told the Defendant that he was a photographer who

also was converting a barn into a residence and would

like the Defendant to assist him in his labors. He then

asked if he could look inside the barn, and the Defen-

dant denied permission because the rooms were not in a

tidy condition, but allowed him to look outside if he

wished. At no time was the Defendant made aware of

the Trooper’s true identity until the following day, No-

vember 2, 1977, when the Trooper returned with a

search warrant and seized the materials described

above. There was no probable cause for the issuance of

the warrant before the October search or the November

A-22

1 search. Both of those searches were accomplished by

the use of ruse or artifice.

The Fourth Amendment of the United States Con-

stitution “protects people from unreasonable govern-

ment intrusions into their legitimate expectations of pri-

vacy.” United States v. Chadwick, 433 U.S. 1, 7(1977).

The reasonableness of a governmental intrusion varies

with the degree of privacy legitimately expected and the

nature of the governmental intrusion. United States v.

Chadwick, supra. “Upon closing the door of one’s home

to the outside world, a person may legitimately expect

the highest degree of privacy known to our society.”

Commonwealth v. Flewellen, 475 Pa. 442,____. 380 A.2d

1217, 1220(1977). It can hardly be argued here that

Trooper Shaw is not a government agent or that the area

searched was not one in which the Defendant had the

utmost expectation of privacy.

It is argued, however, that either the articles seized

were in plain view, or that there was consent to the

search. “It has long been settled that objects falling in

the plain view of an officer who has a right to be in the

position to have that view are subject to seizure and may

be introduced in evidence.” Harris v. United States, 390

U.S. 234, 236 (1968). There are three classic models of

the plain view doctrine. One is where the police have a

valid warrant to search and in the execution thereof

come across other incriminating objects. Another is

where the initial intrusion is supported by an exception

to the warrant requirement, such as hot pursuit or inci-

dental to a lawful arrest, and items are seized. A third is

where the police are not searching for evidence but inad-

vertently find incriminating matter. In each instance,

the common threads are that the police had a prior justi-

fication for the intrusion and that the objects were dis-

covered accidentally. It is important to remember that

“the ‘plain view’ doctrine may not be used to extend

a general exploratory search from one object to another

A-23

until something incriminating at last emerges.” Coolidge

v. New Hampshire, 403 U.S. 443, 466 (1971). The only

possible reason for the Trooper's two visits to the Defen-

dant’s home was to gather evidence sufficient for prob-

able cause for the issuance of a warrant. This is not a

permitted application of plain view, and in fact, falls

squarely within the ambit of the cited prohibition. The

Trooper clearly did not have the right to be in the posi-

tion he was in, which placed the objects in his plain

view. Commonwealth v. Watkins, 217 Pa. Super. Ct.

332, 272 A.2d 267 (1970). Even though this surveillance

may have been non-trespassory as to the barn itself, it

was still unreasonable and therefore unconstitutional.

Commonwealth v. Soychak, 221 Pa. Super. Ct. 458, 289

A.2d 119 (1972).

It is true that what one knowingly exposes to public

scrutiny, even if it be in his own home, is not a proper

subject for Fourth Amendment protection, Katz v.

United States, 389 U.S. 347, 351 (1967); Common-

wealth v. Adams, 234 Pa. Super. Ct. 475, 341 A.2d 206

(1975). The key here is the concept of “knowing” expo-

sure, or valid consent. Any consent which may have

been given here was clearly obtained by artifice. Had

Trooper Shaw been forthright about the reason for his

visit, Defendant would not have invited him to look

around. It is a well-known rule that consent attained by

stealth, deceit, or misrepresentation is vitiated, and that

such consent is deemed tantamount to having been

gained by implied coercion. Commonwealth v. Szukics,

212 Pa. Super. Ct. 517, 243 A.2d 198 (1968). The Com-

monwealth has suggested to us that Commonwealth v.

Regan, Pa. Super. Ct.___, 386 A.2d 89 (1978),

would allow the trickery utilized here. We find the case

inapposite because it would allow ruse to exercise a

search warrant, but here we find that ruse was used to

obtain the sine qua non probable cause required to get

the warrant. We cannot see any applicability of that

A-24

holding to these facts. For the reasons hereinabove

stated, we suppressed the evidence.

BY THE COURT:

July 11, 1978