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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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