*1 Soychak. Appellant, v. Commonwealth, J., P. Before Wright, 8, 1971. Submitted November Spaulding, Hoffman, Montgomery, Jacobs, Watkins, *2 JJ. and Cercone, and Ceraso, Attorney,
Louis H. Assistant District Commonwealth, for N. District Attorney, John Scales, appellant.
Richard H. for Galloway, appellees.
Opinion by 1972: March J., Jacobs, admissibility The concerns present appeal from a police obtained surveillance gambling evidence was and raid defendants’ evidеnce premises. a and lower following hearing court suppressed now appeals. Commmonwealth The chain of circumstances to the leading from tipa a confidential began with informant. appeal The informant advised gambling opera- conducted ABC at the being tions Billiard Club. information, officers this Acting placed for an from hour, under surveillance club 11:00 p.m. which time they during observed midnight, various leaving and premises. entering males The officers the club of the which building to the rear later went floor, the second The club occupies located. floor. Con- half the first the front extends over only climb onto able to one of the officers was sequently, building half the rear first-floor roof over fаn access to a louvered thereby obtain the lou- Peering the club’s bathroom. serving con- dice game being vers in fan he observed a the bath- adjoining in the billiard room ducted club’s the fan room. The fan louvers were blown open far officer a of the bath- to afford the view sufficiently room also lifted billiard but he adjoining room, the louvers hand to a bеtter with his view. get
On the basis above facts search warrant was obtained. The affidavit search war- supporting rant included the following (1) information: a gam- *3 establishment was bling operation to be in on alleged the described the ABC ac- premises Billiard Club; quisition this information to was attributed a con- fidential the (2) “stickman” and “door- informant; man” were also identified, thе through statements of the confidential informant; the information (3) from the informant was said to be based on the informant’s own personal he knowledge, having observed gambling, and on actually the gambled, in premises question; (4) the information from the informant was alleged to have in reliable the proved past; two convictions and three for pending prosеcutions all gambling, the result of the informant’s information, were set out in detail; (5) the of the one-hour results police surveillance were described; this one-hour during period various males to were have entered the said premises and two males were from the premises seen setting garbage on the the finally, affidavit street; (6) described the police observation through the officer’s exhaust fan of gam- the billiard club’s room. bling police offi- obtaining the warrant, the search After again proceeded it. officers execute While two cers through fan, the exhaust room the billiard observed through building front the entered other officers leading climbing steps they began to the As door. doorway standing they man club’s noticed a club, policemen top of identified at the the stairs. When police offi- man slammed the door. The themselves the again began cers then themselves beat- identified ing sledgehammers. on the door axes and After with opened about ten minutes one of the defendants police door and the officers entered.
During troopers this time who were still on the through rear roof observed the defendants the exhaust troopers suppression fan. One testified at the hearing running that he watched the defendants around trying open the room while the the front put door. One of the defendants billiard balls on the they playing table had been dice. Another defendant ran into the bathroom and flushed dice down the commode.
The items which the as a confiscated result of the raid were a deck of cards, two curtain rods with tape on both ends, fan, rein- two forced doors that barred access to the club. This evi- along testimony dence, concerning with the the obser- vations suppressed by exhaust fan, was lower For court. the reasons that fоllow we affirm regard lower court order with to the initial exhaust fan *4 respect but observations, subsequent reverse with to the fan physical observations and the evidence seized.
Primarily, three issues are appeal. raised this propriety The issues concern the of police the initial observations the exhaust validity fan, the of the search and the warrant, admissibility of the evi- of police in the course the subsequent obtained
dence be considered seriatim. raid. These issues will of the initial exhaust to the respect propriety With officer fan is whether police test observations, justifiable expecta violated defendants’ unreasonably States, tion Katz v. United 389 U.S. privacy. The in held that thе ab (1967). Court Katz Supreme sence of a intrusion does not se demon physical per strate that a even reasonable; surveillance was a surveillance can be unreasonable and non-trespassory therefore in Com unconstitutional. As we intimated monwealth v. A. 216 Pa. Ct. Hernley, Superior 177, 2d 904 or absence of an accom (1970), presence a in panying trespass factor to consider de merely the reasonableness of a In termining visual intrusion. the instant case the officer’s observations were effected roof of upon the trespassing building the louvers of manipulating the billiard club’s ex haust fan. This physical trespass accompanying officer’s visual observation a is, therefore, relevant con sideration in determining propriety his conduct.
Another consideration which we found significant in Hernley, is the supra, reasonableness the suspect’s expectation privacy. suspects had Hernley failed to curtain their windows, and we accordingly found that, absent such obvious their action, expecta tion of privacy was justifiablе neither nor reasonable. contrast, reasonable expectation of privacy has been found to exist in cases wherein the suspects have drawn their curtains but so doing have failed to block the completely view of police investigators. See, Pate v. e.g., Municipal Court, 11 Cal. 3d App. 721, 89 Cal. Rptr. 893 (1970); and People Myles, 6 Cal. App. 3d 86 Cal. Rptr. (1970), wherein the suspects were found, under the to have circumstances, exhibited
463 violated which was of privacy expectation a reasonable intrusion. governmental unreasonable by could not have suspects case the In the present fan on their the louvers closed permanently Hence, of the fan. of the use being deprivеd without negate not does to so close the louvers failure their of And of privacy. an expectation the existence an demonstrated affirmatively have in fact defendants of louvers of their use privacy by expectation of their the fan was not use operating, closed when of reinforced a “door- doors, and their employment two man”. of be considered expectation may This privacy reasonable with to the observations regard club’s bathroom fan a bathroom a room ordi- because considered narily and because a view of the private bathroom in particular was to question only accessible on the roof. person standing we find that Thus, the dеfendants exhibited a rea- sonable This expectation privacy. was expectation violated unreasonably trespassory intrusion the police officer, as discussed above. This combination of circumstances leads us the conclusion tbe initial exhaust fan observations police officer were unconstitutional accordingly results there- of must be suppressed.
The second issue concerns the
validity
the search
warrant. The six
parts
affidavit
supporting
warrant have been set out above. Part
(6)
the affi
davit is based
upon
exhaust fan observations which
we have already found to have been improper. However,
the inclusion of illegally obtained evidence will not
invаlidate a search warrant
if the
warrant
also based
other
upon
sources which are valid and sufficient
constitute probable cause. Howell v. Cupp, 427 F.2d
36 (9th Cir.
United
1970);
States v. Sterling, 369 F.
2d
Cir.
(3d
1966);
v.
Clay United States, 246
F.2d
App.
1957);
121 Ga.
(5th
State,
Merritt
Cir.
(1970).
are sufficient
if there
Thus,
175 S.E.2d
grounds
to constitute
in the
affidavit
valid
properly
probable
issued.
was
the search warrant
cause,
sufficiency
affi
warrant
of a search
for the
test
*6
magistrate
informed
must be
the
davit is twofold:
(1)
underlying
from which
some of the
circumstances
suspects
en
the
the informant
that
concluded
(2)
gaged
activity,
the
in
and
from which
criminal
credible or
affiant concluded that the informant was
Aguilar Texas,
his
reliable.
The affidavit in the case criminal activity (gambling) part suspects, on the of the the indicates in manner which the information was gathered (by personal observation). If either of these two of items information are in stated sufficient detail, by implication holding then, from Spinelli, supra, in e.g., is See, affidavit valid. Merritt v. State, 121 Ga. App. 175 (1970), adopts 832, S.E.2d which rule that the affidavit must either state how in formant obtained his or it information, must describe activity the criminal in purpose sufficient detail. The requirements of these alternаtive tois insure, as stated supra, Spinelli, in that the of basis complaint is something more substantial than a casual rumor cir culating in the underworld. question, in the the affidavit whether then, gambling adequately
instant indicates how case setting in in out detail information was lieu obtained, opinion gambling. are of exact nature We in informant’s that the reference the affidavit to the eyewitness acquisition gambling information is his showing sufficient of how the information was obtained, actually considering gambled that the had informant gambling premises question, and seen in was identify able to the “stickman” and “doorman” gambling operation, and been to be familiar has shown legal meaning “gambling” by having with the his previously supplied leading information to two convic- pending prosecutions gambling. tions and three for Payton, Superior See Commonwealth v. 212 Pa. Ct. (1968), A.2d which an held affidavit Aguilar alleged valid under as the circumstances underlying the informant’s conclusion that the inform- personally placed suspect by ant had bets with the telephone. requirement
Thus, “how-obtained” is satisfied validly and the search warrant was issuеd. In addition, description” requirement the alternative “detailed substantially complied pre- with. The in informant, his sumably experienced opinion, described the activities question gambling. as “gambling” The word has a meaning commonsense and should be construed accord- ingly, rather than a technical fashion. Common- Payton, supra. wealth v. specificity Additionаl was “gambling” description by added to the the informant’s *8 game, reference to the “stickman” the since the term ordinarily “stickman” is used in connection with a game of dice. See Webster’s Third New International Dictionary (1965). 2241 presented by
The third issue the appeal concerns the execution the search this warrant. In
467 who officers made that the is no contention regard, Bath acted improperly. front door the entered through activities the centered upon the er, dispute defendants the roof observing on the officers stationed found that already fan. have We through im fan were observations the pre-warrant by is presented question a different However, proper. roof while the from the оbservations subsequent subsequent as the long executed. So being warrant was obser untainted pre-warrant observations not are they proper, are otherwise they vations, of the observa impropriety rendered invalid Common the warrant was obtained. made before tions 217 A.2d Ct. Superior 410, Pa. Nicholls, wealth 768 (1966). officers’ actions,
In determining propriety to are not required by noting we begin Bather, identical fashion. execute warrant every execution to their flexibility adapt are they permitted situations. to fit the needs particular procedures This is true situations especially involving gambling can be in a matter of destroyed wherein evidence See, Jurkiewics, Commonwealth v. e.g., seconds. Co. 172 (1967). Wаsh.
Under normal circumstances are required to notice of their identity before at give purpose enter to tempting private premises. Commonwealth v. 217 Pa. Superior Ct. McCloskey, A.2d this notice However, (1970). requirement designed not to afford the time to suspects but destroy evidence, them an to surrender their give opportunity privacy if the Accоrdingly, bar voluntarily. suspects access to after notice is given, their and use premises the inter destroy evidence, time vening police are then their initiate search by entitled to whatever means are to them. available this reasonably connection the *9 3d Court, App. Cal. Vickery Superior case Vickery instructive. 88 Cal. Rptr. (1970), even without a wаrrant and without five policemen, house as part to the defendants’ went cause, probable three conducting. While they of an were investigation other officers door, the front two officers approached a closed house, walked around the side opening the rear door. Prom and themselves near stationed gate, a аble observe through their were to position they kitchen window conduct incriminating part the defendants after the defendants had been made and aware at the identity purpose police front but before the had entered door, police actually the house. The court found that under circum- the rear-door to stances entitled loоk the kitchen window and that their observations through could be window properly admitted into evidence. case a instant presents somewhat similar situa- tion. The search warrant gave limited or privilege gain access, visual to the physical, de- subject fendants’ to the premises, restriction that they first reasonably announce their identity and purposе. After the front-door officers did announce properly themselves, the defendants barred access to their club attempted use time intervening to conceal evidence. Since at time the front-door officers were entitled to make an immediate search and seizure, it appears that the officers on the roof were likеwise entitled to make a visual search of the premises through the exhaust fan. The observations which were there- after made properly through the exhaust fan are not shown to have been tainted by the previous improper observations so are they admissible as evidence against defendants. In the present case, therefore, officers may testify toas what they saw through door front at the the exhaust fan after the policemen announced themselves. evidence seized by to the respect physical
With the front this evidence door, officers entering through exe- it admissible since was seized during proper cution of the search warrant.
That order part lower court suppressing evidence physical seized and the observations made through exhaust fan the front-door following announcement reversed. all other respects said order is affirmed.
Concurring Opinion J.: Hoffman, I would like my to note with specific concurrence the majority’s holding observations any the exhaust fan be officers the roof would inadmissible unless made at front after door announced their identity and purpose.
Commonwealth Appellant. v. Prasnikar,