Commonwealth v. Hernley
263 A.2d 904, 48 A.L.R. 3d 1172, 216 Pa. Super. 177 (1970)
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Rule of Law:
The Fourth Amendment does not protect against visual observation of activities within a building by law enforcement from a non-intrusive vantage point off the premises, even with the use of visual aids like binoculars, if the occupants have not taken measures to shield their activities from view.
Facts:
- In the fall of 1967, FBI Special Agent Forsythe began surveillance of the appellees' printshop in Farrell, Pennsylvania, based on information about the distribution of football gambling forms.
- On the evening of October 16, 1967, Forsythe observed that the presses inside the shop were operating.
- The shop's windows were situated too high for a person of average height to see inside from the ground.
- To obtain a view, Forsythe placed a four-foot ladder on railroad tracks abutting the appellees' property.
- While standing on the ladder, from a distance of 30-35 feet, Forsythe used binoculars to look through a side window.
- Using the binoculars, Forsythe observed "Las Vegas" football parlay sheets being printed inside the shop.
- The windows of the printshop were not curtained or otherwise covered.
Procedural Posture:
- The appellees were charged in a Pennsylvania trial court after evidence was seized pursuant to a search warrant.
- The appellees filed a motion in the trial court to suppress all evidence obtained under the warrant.
- The trial court granted the motion, ruling that the information used to get the warrant was the result of an unconstitutional search.
- The Commonwealth of Pennsylvania, as the prosecution, appealed the trial court's suppression order to the Superior Court of Pennsylvania.
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Issue:
Does a law enforcement agent's observation of the interior of a commercial building, conducted at night from a ladder on adjacent public property with the aid of binoculars, constitute an unreasonable search in violation of the Fourth Amendment?
Opinions:
Majority - Jacobs, J.
No. The observation did not constitute an unreasonable search because the appellees did not have a reasonable expectation of privacy in activities they failed to conceal from public view. The court reasoned that Fourth Amendment analysis balances public order against an individual's privacy. While observations made while trespassing on a defendant's property are typically unconstitutional, observations from off the premises are generally permissible. The use of binoculars does not render an otherwise lawful observation unconstitutional, as established in precedents like United States v. Lee. The court distinguished Katz v. United States, noting first that its rule was not retroactive to this search, and second, that Katz requires a justifiable expectation of privacy. Under the two-part test from Justice Harlan's concurrence in Katz, the appellees failed to exhibit an actual or reasonable expectation of privacy because they could have simply curtained their windows to shield their activities from visual intrusion.
Dissenting - Montgomery, J.
Yes. The observation constituted an unreasonable search because the agent used a ladder to achieve an 'unnatural physical penetration into the normal line of sight.' The dissent argues that citizens should not be required to curtain their windows to be free from such intrusions. It analogizes the use of a ladder to gain a visual vantage point to the physical penetration of a 'spike mike' in Silverman v. United States, suggesting that both are impermissible invasions of a protected space. The dissent finds Katz inapplicable and believes the search was unreasonable on its own terms.
Concurring - Hoffman, J.
No. The observation was not an unreasonable search under the law applicable at the time of the event. The concurrence agrees with the majority's result but on the narrower ground that the search occurred before the Supreme Court's decision in Katz v. United States. Under pre-Katz jurisprudence, a search was only unconstitutional if it involved a physical trespass. Since the agent conducted his surveillance from railroad tracks and not the appellees' property, there was no trespass, and therefore no Fourth Amendment violation under the controlling legal standard of that era. The concurring opinion would not reach the question of whether the search violated a 'reasonable expectation' of privacy.
Analysis:
This case clarifies the application of the 'reasonable expectation of privacy' doctrine from Katz v. United States to instances of visual surveillance. The decision establishes that the burden is on the individual to take reasonable steps, such as closing curtains, to protect their privacy from visual observation from public vantage points. It affirms that law enforcement's use of commonplace visual aids like binoculars does not, by itself, transform a lawful observation into an unconstitutional search. This ruling reinforces the plain view doctrine and highlights a key distinction: the Fourth Amendment protects what one seeks to keep private, not what one knowingly exposes to the public, even if that public view requires some minor assistance to achieve.
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