Appellant, Richard Lemanski, appeals from a judgment of sentence entered in the Court of Common Pleas of Potter County, following his conviction of possession of a controlled substance and manufacture of marijuana. We reverse and remand.
In October of 1984, Trooper Dale Cogley of the Pennsylvania State Police received a tip from an informant that plants, suspected of being marijuana, were growing in appellant's greenhouse. The informant was a private citizen and, according to Trooper Cogley's affidavit, was "familiar" with marijuana identification. Based on this information, Trooper Cogley drove past the Lemanski residence. From the road he saw a greenhouse, or sun room, connected to Lemanski's home. He also saw plants growing through the greenhouse roof, but, due to the distance, he was unable to identify them. Thereafter, Trooper Cogley and Officer Weidner of the local police department went to the road adjacent to the Lemanski home. With the aid of binoculars and a zoom lens, they identified the plants as marijuana.
Later, Trooper Cogley and Officer Weidner spoke with another citizen informant, who gave them essentially the same information as the first informant. Trooper Cogley and Officer Weidner went back to the Lemanski home to investigate, whereupon they saw two marijuana plants in the greenhouse at close range.
After obtaining a search warrant, the police returned. Mrs. Lemanski answered the door and consented to a search of her home. Approximately one and one-half pounds of marijuana were seized, and both Mr. and Mrs. Lemanski were arrested.
Appellant filed a motion to suppress the marijuana, alleging that the visual intrusion and physical trespass by Cogley and Weidner constituted an illegal search and, thus, the marijuana seized was inadmissible as "fruit of the poisonous tree." This motion was denied.
With respect to the first recusal motion, appellant also filed a motion for appointment of another judge to hear that motion. This was also denied.
At trial, appellant testified on his own behalf, stating that he grew the marijuana solely for his personal use. He testified that he grew marijuana because he did not want to associate with the type of people who sold drugs. The trial court prohibited appellant's character witnesses from testifying as to appellant's reputation for honesty. In addition, appellant was prevented from cross-examining the co-defendant, Mrs. Lemanski, who was represented by her own counsel at trial.
A jury convicted appellant of possession of a controlled substance and manufacture of marijuana. Post-trial motions were denied, and appellant raises the following issues for our review:
Because we remand for a new trial, where these questions are likely to reappear, we address each issue.
Recusal is required whenever there is a substantial doubt as to a jurist's ability to preside impartially. The Code of Judicial Conduct calls for disqualification where a judge's impartiality "might reasonably be questioned, including but not limited to instances where . . . he has a personal bias or prejudice concerning a party. . . ." Code of Judicial Conduct, Canon 3, subd. C(1)(a).
Appellant argues that the trial court erred in not granting recusal
The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal. Commonwealth v. Darush, 501 Pa. 15, 23, 459 A.2d 727, 732 (1983). Further, the decision by a judge against whom a plea of prejudice is made will not be disturbed absent an abuse of discretion. Id. A party is not limited to his own case in establishing personal bias, and may show "temperamental prejudice on the particular class of litigation involved" to support his allegations. Commonwealth v. Kane, 199 Pa.Super. 89, 91, 184 A.2d 405, 406-07 (1962).
Our Supreme Court has held that when a judge "believes his impartiality can be reasonably questioned," he should recuse himself, just as he should if he himself has doubt as to his ability to preside impartially. Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting A.B.A. Standards Relating to the Function of the Trial Judge § 1.7, Approved Draft, 1972). We share in the Supreme Court's awareness that "the appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of these elements." Id.
This Court has previously expressed its concern with the drug problem our country faces, and we recognize its debilitating effects at every level of our society. We recognize also that the "weekend user," despite his fatuous rationalizations, cannot disassociate himself from the source or effects of illegal drug use. He is aligned with the kingpin of a major drug ring, and with the street dealer who invades our grade schools and high schools. There is no middle ground, and, despite the temptation, we can have no greater compassion for one than for the other. We, as jurists, are committed to impartiality. But if we allow our personal opinions and goals to cause us to manipulate the law, our commitment is no longer credible, no matter how righteous our purpose. Under the circumstances of this case, it is clear that the trial judge's impartiality could reasonably be questioned. We therefore find that Judge Fink abused his discretion by not recusing himself.
Appellant's second issue presented for review is whether the court erred in not granting recusal after its
The next question presented is whether law officers' observation of a greenhouse by means of binoculars specially equipped with a zoom lens violated appellant's Fourth Amendment protection against unreasonable searches and seizures.
Appellant's house is one of the last residences on Reese Hollow Road, a dead-end, dirt road in a rural area. The road is approximately 200 feet from the house. Based in part on observations made from the road with the aid of binoculars and a zoom lens, a search warrant was issued. Appellant contends the trial court erred in denying his motion to suppress marijuana seized pursuant to this warrant. He claims that the use of binoculars and a zoom lens, prior to issuance of the warrant, constituted a search in violation of the Fourth Amendment, and thus the evidence seized pursuant to the warrant should have been suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975).
In reviewing a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom.
Appellant has not excepted to the suppression court's findings of fact. Therefore, we need only determine the reasonableness of the court's inferences and legal conclusions.
At the suppression hearing, Trooper Cogley testified on direct examination as follows:
On cross-examination, Trooper Cogley testified as follows:
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV; Pa. Const. art. 1, § 8. A search within the meaning of the Fourth Amendment "occurs when `an expectation of privacy that society is prepared to consider reasonable is infringed.'" Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985) (quoting
It is now well established that a person cannot have a reasonable or justifiable expectation of privacy in things or activities which are generally visible from some public vantage point. California v. Ciraolo, 476 U.S. 207, ___, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986). The Commonwealth contends that appellant had no reasonable or justifiable expectation of privacy in a glass-enclosed greenhouse. We disagree. The suppression court's findings do not support this conclusion.
The United States Supreme Court pointed out in Rakas v. United States, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978):
439 U.S. at 143 n. 12, 99 S.Ct. at 431 n. 12; see also Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982) (property rights, actual usage, and historical distinctions
Appellant's greenhouse was attached to his home, and was accessible from the dining room through a sliding glass door.
We next determine whether that expectation is one that society is prepared to recognize as reasonable. In pursuing this second inquiry, the test is not whether the individual chooses to conceal assertedly "private activity," but whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. Ciraolo, 476 U.S. 207, ___, 106 S.Ct. 1809, 1812. Protection of privacy in the home is the heart of the Fourth Amendment. "The Amendment reflects the recognition of the Founders that certain enclaves should be free from arbitrary government interference . . . [T]he [United States Supreme] Court since the enactment of the Fourth Amendment has stressed `the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984) (citing Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980)). The Fourth Amendment reflects a choice that our society should be one in which citizens "dwell in reasonable security and freedom from surveillance." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). A police officer parting shrubbery and peering through binoculars into one's home is certainly an intrusion which infringes upon the values protected by the Fourth Amendment.
Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 510, 13 L.Ed.2d 431 (1965).
In Ciraolo, the Supreme Court granted certiorari to determine whether the Fourth Amendment is violated by warrantless aerial observations from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of the home. A sharply divided Court determined that, although the defendant had clearly exhibited a subjective expectation of privacy, the mere fact that he had taken measures to restrict some views of his illegal agricultural pursuits did not preclude an officer's observations from a public vantage
476 U.S. at ___, 106 S.Ct. at 1813 (emphasis added).
The instant case is clearly distinguishable. It is undisputed that the greenhouse in question is within the "curtilage" area.
In finding Lemanski's expectation of privacy to be reasonable, we emphasize that the Fourth Amendment makes no distinctions between lawful and unlawful conduct. We cannot, in hindsight, choose to protect unlawful conduct with less vigor. Rather, we must balance legitimate law enforcement techniques and the legitimate privacy rights of citizens in a free and open society.
Our Supreme Court recently characterized this delicate balance as follows:
We conclude that the actions taken by Trooper Cogley and Officer Weidner were sufficiently intrusive so as to constitute an infringement upon appellant's legitimate expectation of privacy.
In addition, the officers' subsequent entry onto Lemanski's property for the purpose of observing the greenhouse at close range was also unconstitutional. When police officers who are "justifiably at the scene [see] contraband in plain view," the observation "is not a search within the meaning of the Fourth Amendment . . . [and] no warrant is required." Commonwealth v. Getz, 236 Pa.Super. 469, 472, 344 A.2d 686, 687 (1978) (citations omitted). The Commonwealth argues, and the trial court held, that the search was
The plain view doctrine encompasses two distinct types of cases. The first type is that in which the "view" takes place after an intrusion into a constitutionally protected area. "[I]f the original intrusion is justified, such as by consent, hot pursuit, warrant or other, objects sighted in plain view will be admissible, so long as the view was inadvertent." Commonwealth v. Weik, 360 Pa.Super. 560, 564, 521 A.2d 44, 46 (1987). The second type of case is that where the view takes place before any intrusion into a constitutionally protected area.
Based on our finding above that Lemanski's greenhouse is a constitutionally protected area, the instant case falls into the first category. The officers entered onto Lemanski's property, approached the greenhouse, and peered into it. All of this was done without a warrant, without consent, and without exigent circumstances. Their intrusion was not justified, nor was their "view" inadvertent. See Weik, supra; Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975). We therefore conclude that the "plain view" doctrine is inapplicable here, and the warrantless search was in violation of Lemanski's constitutional rights.
Warrantless searches are, "subject only to a few specifically established and well-delineated exceptions," per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz, 389 U.S. at 357, 88 S.Ct. at 514; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); cf. Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1979) (no reasonable expectation of privacy in contents of commercial building in urban setting where windows are uncurtained; court held law enforcement's use of binoculars was not a violation of the
The question then becomes whether the untainted information in the affidavit establishes probable cause for a search warrant to issue. See Commonwealth v. Cosby, 234 Pa.Super. 1, 335 A.2d 531 (1975); Commonwealth v. Soychak, 221 Pa.Super. 458, 289 A.2d 119 (1972). Striking the tainted information, Trooper Cogley's affidavit states as follows:
The standard for evaluating whether probable cause exists for the issuance of a search warrant is the "totality of circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This test was adopted as the law of Pennsylvania in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (decided Dec. 11, 1985, as amended Feb. 5, 1986). See also Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983).
Here, both informants are unnamed. A tip from an unnamed informant can properly form the basis for probable cause to issue a search warrant, provided there is adequate evidence of the informant's reliability. Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987); Commonwealth v. Carlisle, 348 Pa.Super. 96, 100, 501 A.2d 664, 666 (1985). Our supreme court recently reiterated the requirement that the reliability of the informant's information must be determined from the facts supplied by the police official. See Commonwealth v. Miller, 513 Pa. at 134, 518 A.2d at 1195. Here, there is no allegation that either informant gave prior reliable information, nor is there any allegation that the statements were against the informants' penal interests. Further, there is no indication that appellant's reputation supports the informants' tips, nor that the tips were adequately corroborated by an independent source (i.e., independent police work). See Commonwealth v. Gray, 322 Pa.Super. 37, 48, 469 A.2d 169, 174 (1983).
The affiant alleges no facts or underlying circumstances from which the informants had concluded that the plants were marijuana.
An informant's report "which itself fails to establish probable cause may be sufficiently corroborated by independent observation of a suspect's conduct, if the latter tends to confirm the information in the report or otherwise to support a conclusion that the suspect is engaged in committing a crime." Commonwealth v. Corleto, 328 Pa.Super. 522, 527, 477 A.2d 863, 865-66 (1984) (quoting United States v. Acarino, 408 F.2d 512, 515 (2d Cir. 1979)). We are unwilling to attribute significance to Trooper Cogley's initial observation of the greenhouse from the public road with his naked eye. At that time, Trooper Cogley saw a "plant growing through the roof of the greenhouse." This is insufficient to confirm the informant's report and we are thus unable to uphold a finding of probable cause. Cf. Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985); Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984); Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Johnson, 358 Pa.Super. 435, 517 A.2d 1311 (1986); Commonwealth v. Way, 342 Pa.Super. 341,
Viewed in its totality, we conclude that the affidavit is insufficient to establish probable cause, and we therefore reverse the trial court's order denying suppression.
Appellant alleges that the trial court erred in denying him the right to introduce character evidence as to his reputation for honesty and integrity. Appellant contends that by taking the stand he automatically placed his credibility at issue, and, as such, he should have been given the opportunity to present a character witness.
Appellant cites several cases to support his contention. In Commonwealth v. Stafford, 272 Pa.Super. 505, 416 A.2d 570 (1970), the defendant was convicted of theft. At trial, the Commonwealth introduced evidence that police officers were called to the scene of a furniture store and, upon arrival, saw broken glass by a large door. The officers saw someone moving about inside the store and observed the defendant carrying a portable television out of the store. The defendant testified that he was inside the store because he had been pushed through the plate glass window of the store during a fight. He denied carrying the television. Clearly, the defendant's testimony directly contradicted the Commonwealth's evidence and therefore the defendant's credibility was directly at issue.
Appellant also cites Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). In Scott, the appellant was convicted of third-degree murder. The Commonwealth presented testimony to rebut appellant's claim of provocation, and, to rebut this, appellant claimed self-defense. Since appellant's reputation for honesty was essential to his defense, the court properly admitted the character evidence.
The case before us, however, is unlike those appellant cites. Mr. Lemanski's testimony was not in direct conflict with that presented by the Commonwealth. Appellant
Appellant argues that the trial court erred in denying him the right to cross-examine the co-defendant. Appellant and his wife were co-defendants at trial, and were represented by separate counsel. Appellant testified on his own behalf. Thereafter, Mrs. Lemanski testified on her own behalf and was cross-examined by the Commonwealth. Appellant's trial counsel then attempted to cross-examine her, but the trial court precluded him from doing so. Appellant claims this was an abuse of the trial court's discretion.
The Sixth Amendment provides that an accused "[i]n all criminal prosecutions . . . shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; Pa. Const. art. 1, § 9. The right of confrontation imports the accused's constitutional privilege to cross-examine witnesses against him. The purpose of the confrontation clause is to provide an accused with effective means of challenging evidence against him by testing recollection and probing the conscience of an adverse witness. Commonwealth v. Robinson, 507 Pa. 522, 525, 491 A.2d 107, 109 (1985).
Appellant claims that the trial court erred in refusing to grant a mistrial after the district attorney told the jury in her closing argument that they need not accept a stipulation that the marijuana was for appellant's personal use. Appellant also claims that the court erred in its instructions to the jury with respect to this stipulation.
A stipulation is a statement that the fact agreed upon is proven. Commonwealth v. McMurray, 198 Pa. 51, 59, 47 A. 952, 953 (1901). Prior to trial, the Commonwealth and defense counsel entered into a stipulation which stated, inter alia, that the marijuana in question was for "personal use." At trial, the prosecution stated: "This is a stipulation of fact that's been entered into between the Commonwealth, me, and the counsel for each of the defendants. . . . The marijuana was grown for personal use." However, in closing, the prosecution stated: "[T]he mere fact that the stipulation exists doesn't preclude you from looking at other facts. . . . We know, or we would guess, that a personal use would require a much smaller amount of marijuana.. . ."
A valid stipulation is to be enforced according to its terms. The parties are bound to accept the facts to which they have stipulated, and the remedy for violation of the stipulation is reversal. Commonwealth v. Mathis, 317 Pa.Super. 226, 232, 463 A.2d 1167, 1171 (1983); see also Pa. Suggested Standard Criminal Jury Instructions, § 3.17 (November 20, 1971). We question the trial court's interpretation of the term "personal use," and the prosecutor's disregard of the stipulation. However, we emphasize that appellant was found guilty of possession of a controlled substance
Appellant contends that any further proceedings in this matter should be remanded to a different judge, regardless
The appellant's original argument centers upon the fact that appellant's counsel has already testified before the Judicial Inquiry and Review Board regarding two incidents related to this proceeding involving Judge Fink. This testimony can only be construed as negative toward Judge Fink. Also, in a post-submission memorandum, filed December 3, 1986, the appellant presented several new developments to be considered: (1) Judge Fink has been temporarily suspended from hearing cases; (2) Judge Fink has subpoenaed the appellant and the appellant's wife (co-defendant at trial who was acquitted) to testify at the Judicial Inquiry and Review Board proceedings; and (3) Judge Fink has also subpoenaed the assistant district attorney of Potter County, who prosecuted the case at trial and argued before this court.
The Code of Judicial Conduct requires that a judge "disqualify himself in a proceeding in which his impartiality might reasonably be questioned." Code of Judicial Conduct, Canon 3, subd. (C)(1)(a). The Code also enumerates specific situations in which a judge should disqualify himself, including when "he has a personal bias or prejudice concerning a party. . . ." Code of Judicial Conduct, Canon 3, subd. (C)(1)(a). As we stated above, the facts clearly present a reasonable question concerning Judge Fink's impartiality and thus the appellant is entitled to further proceedings before another judge. See Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983).
Reversed and remanded for a new trial. Jurisdiction relinquished.
POPOVICH, J., files a concurring and dissenting opinion.
POPOVICH, Judge, concurring and dissenting:
I would dissent to that portion of the Majority Opinion holding that the police's use of binoculars to view the
The Majority recounts how the police officer initially spied the plants as he drove past the appellant's residence, on routine patrol, and observed their growth without the aid of any artificial enhancement to his vision to make the sighting.
One must not forget that the Fourth Amendment is intended to protect people and not places. Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). With the preceding in mind, my reading of the U.S. Constitution and cases interpreting the Fourth Amendment is not as restrictive as the Majority's so as to proscribe the use of binoculars to peer into one's home, especially when the glass enclosing the greenhouse invited the prying eye of anyone, including the police, to view its contents.
Like an undrawn curtain, the clear pane of glass enclosing the greenhouse prohibited no one from seeing what occurred inside. The fact that one had to use artificial means to secure a confirmation of what the officer at first believed to be a controlled substance growing out of the roof of the greenhouse does not brand the conduct "intrusive". Therefore, I cannot endorse a finding by the Majority that the appellant had a "reasonable" expectation of privacy of the contents of his greenhouse.
If such were the case, then in no instance where the police used, e.g., an infra-red camera to video tape the conduct of criminals carried out under the cover of darkness would be admissible in a court of law. I do not believe the Fourth Amendment was intended to preclude the use of information obtained with artificial means (i.e., binoculars, infra-red cameras etc.), for what anyone does for all to see is not a matter which invokes the shield of the Fourth Amendment.
It would be as if an individual viewed the commission of a crime, be it through a telescope, and the law, under the
Further, I cannot join in the Majority's conclusion that the probable cause section of the search warrant was defective.
My reading of the warrant discloses its compliance with the "totality of circumstances" test enunciated by our Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accordingly, I would find the document passes constitutional muster.
Lastly, I disagree with the Majority's conclusion that the appellant was not prejudiced when he was not permitted to cross-examine his co-defendant or present character witnesses who would testify to his truth and veracity. Both denials are unpardonable and require rectification in the form of a new trial.
For the reasons stated above, I respectfully dissent in part.
476 U.S. at ___, 106 S.Ct. at 1815 (Powell, J., dissenting).
Justice Powell concluded that the majority failed to make a significant distinction between official aerial surveillance and the electronic surveillance against which the Katz Court had warned. Justice Powell noted that although the right of privacy in the home and its curtilage includes no right to engage in unlawful conduct there, the Fourth Amendment requires police to secure a warrant before they may intrude on that privacy to search for evidence of a suspected crime. Ciraolo, 476 U.S. at ___ n. 11, 106 S.Ct. at 1819 n. 11. See also United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).