Com. v. Eberly, G.

J. S64040/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
GREGORY A. EBERLY, :
:
Appellant : No. 559 MDA 2015
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-CR-0007050-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 24, 2015
Appellant, Gregory A. Eberly, appeals from the judgment of sentence
entered in the York County Court of Common Pleas following his bench
conviction of manufacturing marijuana.1 Appellant avers the officers’ search
warrant specified only the parcel of land on which a residence stood and did
not include the adjacent parcel of land on which marijuana was growing.
Thus, he contends, the trial court erred in finding the officers’ entry onto the
adjacent parcel was legal and erred in denying his motion to suppress. We
affirm.
The trial court made the following findings of fact:
This Court finds the testimony of the officers, Chief [Larry]
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(30).
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Bailets and Officer Bruce [Quinan] of North Hopewell
Township, . . . to be credible. . . .
1. Chief Bailets testified that on September 07, 2013, he
received an anonymous tip from an individual that [he]
spotted growing marijuana plants on a property owned by
[Appellant].
2. The home on the property was vacant but [Chief Bailets
“had personally observed”2] people going back and forth
from the garage which was on a separate lot. [The
residence and marijuana were located on Plot 0086]. Plot
0086F is an adjacent lot which has a two story garage
similar to the construction of the house.
3. [Appellant] and his wife own the garage and there is
[no] separate mailing address for the garage. Chief Bailets
[entered an adjoining property with that property owner’s
permission] and was able to . . . view the marijuana. The
vegetation . . . was a brighter green in color[, which Chief
Bailets recognized from prior drug strike force experience
in helicopter surveillance.3] Chief Ballets then walked onto
the property. On September 7 the vegetation was knee
high but it had previously been mowed.
4. The plot is approximately 10-16 acres and the plants
were found some distance from the house.
Trial Ct. Op., 6/10/14, at 2-3.4
Chief Bailets applied for a search warrant, describing the place to be
searched as follows: “Property located at 13903 Winterstown Road, Felton,
PA 17322, located in North Hopewell Township, York County; specifically the
2
N.T. Suppression H’rg, 2/4/14, at 5.
3
Id. at 8.
4
The Honorable Craig T. Trebilcock presided over the suppression
proceedings and authored the June 10, 2014 opinion. The Honorable Maria
Musti Cook presided over trial and sentencing.
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unmowed field containing large mound of ground in the southeast corner of
the property now or formerly owned by [Appellant].” Appl. for Search
Warrant & Authorization, 9/9/13. Chief Bailets and Officer Quinan executed
the search warrant the same day. N.T. Trial, 2/4/15, at 11. They
discovered and cut ten live marijuana plants, which ranged from four to five
feet tall. Id. at 11-12. Appellant was charged with manufacturing
marijuana.
Appellant subsequently filed a motion to suppress evidence. The trial
court held a hearing on February 4, 2014, and denied the motion on June
10, 2014. This matter then proceeded to a bench trial on February 4, 2015.
Chief Bailets and Officer Quinan were the Commonwealth’s sole witnesses;
Appellant did not testify or present evidence. The court found Appellant
guilty of manufacturing marijuana. On March 13, 2015, the court imposed
an intermediate punishment sentence5 of three months’ imprisonment and a
consecutive year of probation.
Appellant did not file a post-sentence motion but took this timely
appeal. He also successfully petitioned for deferment of his sentence
pending the instant appeal. Finally, Appellant complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) concise statement of matters complained of
on appeal.
5
See 42 Pa.C.S. § 9763.
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On appeal, Appellant presents two theories in support of his sole issue:
whether the trial court erred in denying his suppression motion. We address
them separately. First, Appellant asserts the search warrant was obtained
only for parcel 0086F, which was the locale of the residence, bore the
mailing address 13903 Winterstown Road, and was owned by him and his
wife.6 He alleges, however, that the marijuana plants were located on a
separate, larger parcel, numbered 0086, which was owned by Savannah
Ranch, LLC, of which he was the president. Appellant points out that at the
suppression hearing, Chief Bailets testified he was aware there were two
lots. Thus, Appellant contends, “[t]he description of the property to be
searched, 13903 Winterstown Road parcel 0086F, did not describe with any
particularity the property that was searched, parcel 0086.” Appellant’s Brief
at 13. He concludes the officers’ entry onto parcel 0086 and seizure of
property was illegal as beyond the scope of the warrant. We find no relief is
due.
Our Supreme Court has stated:
Where, as in the instant case, there is no meaningful
dispute of fact, our duty is to determine whether the
suppression court properly applied the law to the facts of
the case. The conclusions of law of the suppression court
are not binding on this Court.
Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006).
6
Elsewhere in his brief, Appellant states this parcel was “being foreclosed
upon” at the time of the search. Appellant’s Brief at 7.
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In reviewing rulings of a suppression court, we must
determine whether the record supports the factual
findings. It is only where the legal conclusions drawn from
the facts of record are in error that this court may reverse.
Commonwealth v. Waltson, 724 A.2d 289, 291 (Pa. 1998) (citation
omitted).
[A search] warrant must describe the place to be searched
and the items to be seized with specificity, and the warrant
must be supported by probable cause. The place to be
searched must be described “precise enough to enable the
executing officer to ascertain and identify, with reasonable
effort, the place intended, and where probable cause exists
to support the search of the area so designated, a warrant
will not fail for lack of particularity.” Thus, where a search
warrant adequately describes the place to be searched and
the items to be seized the scope of the search “extends to
the entire area in which the object of the search may be
found and properly includes the opening and inspection of
containers and other receptacles where the object may be
secreted.”
Id. at 292 (citations omitted).
In the case sub judice, the trial court opined: “In the search warrant,
Chief Bailets gave a very precise description of the land to be searched and
when he viewed the plants from the [neighbor’s] adjoining property, they
were in plain view.” Trial Ct. Op. at 3.
This panel has not discovered, and Appellant does not refer to, legal
authority for the proposition that a search warrant, which specifies the
address of a property and a particular area on the property, must also
identify the parcel or lot number of the property. Accordingly, we apply the
principles set forth above—that the warrant describe the place to be
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searched “precise[ly] enough to enable the executing officer to ascertain
and identify, with reasonable effort, the place intended, and where probable
cause exists to support the search of the area so designated, a warrant will
not fail for lack of particularity.” See Waltson, 724 A.2d at 292.
While Appellant insists that the address, 13903 Winterstown Road,
applied only to the residence, he does not suggest the adjoining parcel had a
different address. As stated above, the search warrant application described
the place to be searched as “[p]roperty located at 13903 Winterstown Road,
. . . specifically, the unmowed field containing a large mound of ground in
the southeast corner of the property now or formerly owned by” Appellant.
Appl. for Search Warrant & Authorization. We agree with the trial court that
the warrant adequately describes the place to be searched. See Waltson,
724 A.2d at 292. Furthermore, the trial court found, and Appellant
concedes, that Chief Bailets initially observed the marijuana in plain view,
from a legal vantage point. Trial Ct. Op. at 2, 3; Appellant’s Brief at 11.
Thus, the warrant application was supported by probable cause, and we
decline to find the warrant “fail[ed] for lack of particularity.” See Waltson,
724 A.2d at 292.
Appellant’s second theory on appeal is “that the open fields doctrine is
inapplicable to the facts of this case,” and instead, “the area where the
plants were located was sufficiently close in distance to the garage to be
considered part of the [protected] curtilage, specifically the ‘secured barn.’”
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Appellant’s Brief at 11. Appellant further contends this “area was sufficiently
intimately linked to the house, both physically and psychologically where
there is a privacy expectation.” Id. He maintains that he “individually and
as an officer of Savannah Ranch, L.L.C., has a legitimate and protected
possessory interest in both parcels, and therefore an expectation of privacy
in both.” Id. at 12. Appellant adds that the total land of both parcels was
20.2 acres and the property was in a “country type setting.” Id. at 11. We
likewise find no relief is due.
Appellant concedes the marijuana plants “were observed in ‘plain view’
on a neighboring property” and does not contest Chief Bailets’ initial “in plain
view” observation of the plants. Appellant’s Brief at 11. In light of our
holding above, that the trial court properly upheld the search warrant for the
area of the property on which suspected marijuana was growing, we find
moot Appellant’s argument that the area was protected curtilage.
Finding no basis for relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2015
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