Other states have followed Hester's analysis, although it is not always clear from reading the opinions whether a particular court was applying the federal or state constitution, or both. See, e.g., Ford v. State, 264 Ark. 141, 142, 569 S.W.2d 105 (1978), cert den 441 U.S. 947 (1979); People v. Barbarick, 168 Cal.App.3d 731, 747 n 3, 214 Cal Rptr 322 (1985); Kennemore v. State, 222 Ga. 252, 254, 149 S.E.2d 471 (1966); Giddens v. State, 156 Ga. App. 258, 259, 274 S.E.2d 595 (1980), cert den 450 U.S. 1026 (1981); Brent v. Commonwealth, 194 Ky. 504, 512, 240 S.W. 45 (1922); Commonwealth v. Janek, 242 Pa. Super. 340, 342, 363 A.2d 1299 (1976). The plurality fails to cite a single case from any jurisdiction that supports its "trespass" analysis.
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. Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). Furthermore, the discovery of these objects established probable cause to arrest appellant.
In affirming judgment, the Court held that, even if the agents had trespassed, their testimony was not obtained by an illegal search and seizure and should therefore be allowed. This Court followed Hester in Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). In Janek, the field in question belonged to the defendant's mother; contained a tent, various gardening implements, approximately 200 live marijuana plants and a can of fertilizer; was not visible from the nearest public road; and was posted with "No Tresspassing" signs. Police, who were unlawfully on the property, arrested the defendant and his companion as they were leaving the field.
United States v. Capps, 435 F.2d 637, 640 (9th Cir. 1970); Atwell v. United States, 414 F.2d 136, 138 (5th Cir. 1969); McDowell v. United States, 383 F.2d 599, 603 (8th Cir. 1967). Accord: Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265, cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976); Commonwealth v. Johnson, 247 Pa. Super. 208, 212, 372 A.2d 11, 13 (1977) (the fact that observations of police involved a trespass of private property is merely one factor to consider in determining the reasonableness of a visual intrusion), vacated on other grounds, 484 Pa. 349, 399 A.2d 111 (1979); Commonwealth v.Janek, 242 Pa. Super. 340, 342, 363 A.2d 1299, 1300 (1976); Commonwealth v. Soychak, 221 Pa. Super. 458, 462, 289 A.2d 119, 122 (1972). Open fields generally are not considered areas subject to a reasonable expectation of privacy.
The suppression judge obviously did not accept Officer Garrett's claim that his movement to the driver's side of the truck was motivated by a fear that the passenger might be of personal danger to him and/or his fellow officer; but his motivation is of no legal significance in this present case, since the officer had a legal right to be where he was when he shone the flashlight into the interior of the truck. See Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). At that point, without any acceptable, proved motivation for using the flashlight, did the officer have a legal right to bring into "plain view" what was hidden by the darkness?
(b) Whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible. See, Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976) (Concurring Opinion, Spaeth, J.); Wisniewski v. TheGreat Atlantic and Pacific Tea Company, 226 Pa. Super. 574, 323 A.2d 744 (1974). And finally, of clear relevance to the instant case is § 433A of the Restatement (Second) of Torts which provides:
The suppression judge obviously did not accept Officer Garrett's claim that his movement to the driver's side was motivated by a fear that the passenger might be of personal danger to him and/or his fellow officer; but his motivation is of no legal significance in this present case, since the officer had a legal right to be where he was when he [shined] the flashlight into the interior of the truck. See Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). At that point, without any acceptable, proved motivation for using the flashlight, did the officer have a legal right to bring into "plain view" what was hidden by the darkness?
In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900 (1924), the Court observed that "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." See also: Commonwealth v. Treftz, supra, 465 Pa. at 626, 351 A.2d at 270-271; Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). The decedent's body was found in a field behind the farm house in which appellant had lived with his girlfriend and children.
The suppression judge obviously did not accept Officer Garrett's claim that his movement to the driver's side of the truck was motivated by a fear that the passenger might be of personal danger to him and/or his fellow officer; but his motivation is of no legal significance in this present case, since the officer had a legal right to be where he was when he shone the flashlight into the interior of the truck. See Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). At that point, without any acceptable, proved motivation for using the flashlight, did the officer have a legal right to bring into "plain view" what was hidden by the darkness?
However, the failure of appellant and those with him in the apartment to close the window shades negates appellant's argument that he was deprived of his privacy; and the fact that the observations of the police involved a trespass of private property is merely one factor to consider in determining the reasonableness of the visual intrusion: Commonwealth v. Soychak, 221 Pa. Super. 458, 462, 289 A.2d 119 (1972). See also Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976). If the observations of the officers were legal, and the opinion of the suppression judge clearly demonstrates that they were, there was justification for a search of the apartment without a warrant and a seizure of the identifying jackets.