HomeMy WebLinkAboutCP-21-CR-3077-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
:
BRENT GIBSON : NO. CP-21-CRIMINAL 3077 – 2010
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., January , 2012
On July 25, 2011 a jury found the defendant guilty of Unlawful Manufacture of a
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Schedule I Controlled Substance, Unlawful Possession of a Controlled Substance and Unlawful
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Possession of Drug Paraphernalia. On September 13, 2011 he was sentenced to pay the costs
of prosecution, a fine of $300 and 12 months probation. He has filed this timely appeal in
which he alleges that we erred in failing to grant his pretrial motion to suppress evidence. We
will explain the reasons for our decision in the opinion that follows.
At the outset of the suppression hearing we sought to define the issues which would be
the focus of our inquiry. We accomplished our purpose in the following exchange with
defendant’s counsel:
THE COURT: Mr. Weisbrod, what exactly is it you are complaining of?
MR. WEISBROD: It’s our belief, Your Honor, that the plants were discovered only after
entry onto and into the curtilage of my client’s property absent any warrant or
exception to the warrant.
THE COURT: Okay then I understand.
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(emphasis added).
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35 P.S. § 780 – 113 (a) (30).
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35 P.S. § 780 – 113 (a) (16).
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35 P.S. § 780 – 113 (a) (32).
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Transcript of Proceedings, March 8, 2011, p. 3.
Factual Background
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Trooper James Borza is a twenty five year veteran of the Pennsylvania State Police.
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Most of his career has been dedicated to drug enforcement. On August 16, 2010 he and
Trooper Rost were investigating a tip that marijuana was growing in a cornfield near Springfield
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Road in West Pennsboro Township. While they were unsuccessful in their attempt to contact
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the owner, they nevertheless proceeded to walk the cornfield.
The cornfield abuts the defendant’s back yard. As they were walking Trooper Borza
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spotted a marijuana plant growing on the defendant’s property. He was “three or four rows in
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the cornfield behind the residence” at the time. At no time did they enter upon the
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defendant’s property.
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After observing the marijuana plant the troopers left the cornfield. They got in their
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vehicles and drove to the front of the defendant’s residence to question him about the plant.
He eventually acknowledged that it belonged to him and signed a written consent authorizing
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the troopers to search his property.
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Transcript of Proceedings, March 8, 2011, p. 4.
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Transcript of Proceedings, March 8, 2011, p. 6.
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Transcript of Proceedings, March 8, 2011, p. 4.
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Transcript of Proceedings, March 8, 2011, p. 5.
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Transcript of Proceedings, March 8, 2011, pp. 5, 6.
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Transcript of Proceedings, March 8, 2011, p. 6.
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Transcript of Proceedings, March 8, 2011, pp. 6, 13.
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Transcript of Proceedings, March 8, 2011, p. 7.
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Transcript of Proceedings, March 8, 2011, p. 7.
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Transcript of Proceedings, March 8, 2011, p. 8. See also Commonwealth Exhibit 1.
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DISCUSSION
It is well settled that the Fourth Amendment protections against unlawful search and
seizure extends to the curtilage area surrounding the home. Oliver v. United States, 466 U.S.
170, 104 S. Ct. 1735 (1984). See also Commonwealth v. Gindesperger, 706 A.2d 1216 (Pa.
Super. 2009). Curtilage is defined as “the area to which extends the intimate activity associated
with the ‘sanctity of a man’s home and privacies of life.’” Oliver, supra, 466 U.S. 170, 180.
On the other hand, it is also well established that a property owner has no
constitutionally protected interest in land outside the curtilage. Oliver, supra. This is true
under both the Fourth Amendment to the United States Constitution as well as under Article I
Section 8 of the Pennsylvania Constitution. Commonwealth v. Russo, 934 A.2d 1199, 594 Pa.
119 (2007).
In the instant case it is doubtful that the marijuana plant was within the curtilage of the
defendant’s home. However, we did not have to address that issue because there was no
doubt that the police discovered the plant without entering onto the defendant’s property.
As we noted at the conclusion of the suppression hearing “we find as a fact that the Troopers
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viewed the marijuana plant . . . at a time when they were in the cornfield.” Therefore we
denied the motion.
____________________ _________________
DATE Edward E. Guido, J.
JONATHAN R. BIRBECK, ESQUIRE
VINCENT F. MONFREDO, ESQUIRE
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Order of Court, March 8, 2011.
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