226 Pa. Super. 372 | Pa. Super. Ct. | 1973
Opinion by
This is an appeal by the Commonwealth from a pretrial order suppressing evidence.
On defendants’ motion to suppress, the hearing judge held that the search and seizure warrant had been properly issued and executed. These conclusions are supported by the record and by the authorities cited in the judge’s opinion. The judge also held that the evidence that there was grease on defendants’ hands had to be suppressed and that the hashish could not be offered in evidence against defendant Kobert DeWitt.
One of several statutes authorizing customs examinations is 19 U.S.C. §482 (1970), which reads as follows: “Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandize on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.” The constitutionality of many §482 searches by custom officials rests on the doctrine that exempts border searches from
Appellees, in a supplementary brief to this court, question for the first time the legality of the customs agent’s search at the Philadelphia Post Office. This was not a border search; a border search had already been conducted a week earlier at the port of entry, New York. The agent, however, had a “factual basis” for believing that the package he opened had been in international mails, i.e., from the package wrappings, United States v. Valen, 348 F. Supp. 1163, 1166 (M.D. Pa. 1972), and had probable cause to believe that the package contained illegal contraband because of the information he had received from the New York customs authorities. Given these facts, his warrantless search was probably lawful under §482 and the Fourth Amendment. United States v. Epstein, 240 F. Supp. 84 (S.D. N.Y. 1965). Cf. Almeida-Sanchez v. United States, 406 U.S. 944, 41 L.W. 4970 (1973). In any event, Pa. R. Crim. P. 323(d) requires that an application for the suppression of evidence “state . . . the specific constitutional grounds rendering the evidence inadmissible.” Because we are told of no reason why appellees did not raise the issue of the legality of the Philadelphia search before now, we shall not decide that issue now. Commonwealth v. Turra, 442 Pa. 192, 195, 275 A. 2d 96, 97 (1971).
In suppressing the evidence of the grease the hearing judge reasoned that passing the ultraviolet light over defendants’ hands was a “search”, which was ille
The test of what constitutes a search within the Fourth Amendment is whether the police have “violated the privacy upon which [the defendants] justifiably relied.” Katz v. United States, 389 U.S. 347, 353 (1967). In order to decide whether there has been such a violation, it is necessary to consider all the circumstances, especially the nature of the item observed and the type of activity by which the observation was made. Commonwealth v. Soychak, 221 Pa. Superior Ct. 458, 289 A. 2d 119 (1972), and Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A. 2d 904 (1970), illustrate how this test is applied.
In Commonwealth v. Soychak, supra, the police officer gained access to the roof of the defendant’s building and manipulated the louvres of an exhaust fan. The room into which the officer was thus able to see was locked and protected by a guard at the door, indicating that the defendant had attempted to maintain his privacy. The trespass onto the roof, the manipulation of the louvres, and the defendant’s own actions, when all taken together, led this court to hold that the officer’s observation was a search. In Commonwealth v. Hernley, supra, where there was no trespass or manipulation of the defendant’s property, and where the defendant had made no attempt to cover Ms windows, it was held that the officer did not make a search by standing on a ladder on abutting property and peering into the defendant’s window with binoculars.
In the present case, the officers were in the house pursuant to a valid search warrant, at a time closely coordinated with the delivery of the contraband. Nor did the officers engage in any activity that might be regarded as high-handed. Although it is true that the warrant did not specifically authorize the officers to search any person, it did authorize them to search the
In any event, defendants had no reasonable expectation of privacy as to the presence of foreign matter on their hands independent of the expectation of the privacy of their premises, which had been legitimately invaded by the police. The grease may be compared to a physical characteristic, such as a fingerprint or one’s voice, which is “constantly exposed to the public.” United States v. Dionisio, 410 U.S. 1, 14 (1973). The Fourth Amendment provides no protection for what “a person knowingly exposes to the public.” Katz v. United States, supra at 351. It is true that the grease could not be detected with the naked eye, but then, neither may a fingerprint be examined until there has been an application of ink. Furthermore, the examination was both limited and controlled, affording no opportunity to learn any information other than that specifically sought: Have the person’s hands been in contact with the treated contraband? In this respect, the examination was more circumscribed than any eavesdropping, electronic surveillance, long-distance viewing with binoculars, or even the use of a flashlight. Also, it involved no personal indignities or physical discomfort, and was neither annoying, frightening, or humiliating. Terry v. Ohio, 392 U.S. 1, 25 (1968).
In holding that the hashish found on the premises could not be used as evidence against defendant DeWitt, the hearing judge stated: “The package was mailed to J. Sellman at J. Sellman’s address. The search warrant was for the home of J. Sellman only. There was no evidence that Robert DeWitt lived with J. Sellman. The hash was found in the home of J. Sellman under the floorboards in a second floor bedroom. Mere presence in the Sellman home is insufficient to make any of the evidence discovered legally relevant to him.”
This conclusion was premature and beyond the scope of the proceeding before the hearing judge. The issue on a motion to suppress is whether the evidence has been constitutionally seized, not whether it will be admissible at trial. Pa. R. Crim. P. 323(a), Reporter’s Comment. At trial the Commonwealth may offer evidence that defendant DeWitt was not merely present in the Sellman home but was an active participant in the apparent scheme to smuggle the hashish from Morocco. (Even on the motion to suppress the Commonwealth showed that he had handled the hashish.) If the Commonwealth fails to offer such evidence, a demurrer will be sustained.
The order of the court below is reversed.
It should be noted that at least two courts have considered the question presented here and have held that the use of ultraviolet light to determine whether a person has been in contact with contraband does not constitute a search. United States v. Richardson, 388 F. 2d 842 (6th Cir. 1968); United States v. Millen, 338 F. Supp. 747 (E.D. Wis. 1972). Neither court, however, offered reasons for its conclusion.