J-A07031-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

SCOTT MICHAEL LOVELL, 

 Appellant No. 539 WDA 2014 

Appeal from the Judgment of Sentence Entered March 6, 2014 

In the Court of Common Pleas of Elk County 

Criminal Division at No(s): 

CP-24-CR-0000292-2013 

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. 

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 13, 2015 

 Appellant, Scott Michael Lovell, appeals from the judgment of sentence 

of 16-48 months’ incarceration following his conviction for growing 

marijuana and related offenses. Appellant claims the trial court erred when 

it denied his motion for a mistrial due to prosecutorial misconduct, and that 

retrial should be barred on double jeopardy grounds because the misconduct 

was so egregious. Appellant also contends the trial court erred when it 

denied his motion to suppress the seized contraband. After careful review, 

we affirm. 

 On July 25, 2012, Trooper James McIntosh of the Pennsylvania State 

Police (PSP) conducted aerial surveillance of Appellant’s property in a rural 

area of Elk County. That warrantless search was prompted by a tip from 

Anthony Milliard, Appellant’s neighbor, who advised the PSP that Appellant 
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was growing marijuana. On the first flyover, Trooper McIntosh observed 

what he believed to be marijuana plants growing in buckets along a tree line 

on the east side of Appellant’s property.1 Trooper McIntosh then returned to 

his barracks and proceeded to Appellant’s residence by ground. Upon his 

arrival, Trooper McIntosh met up with Trooper Emery Faith, and the two 

troopers drove up Appellant’s driveway in separate vehicles. Trooper Faith 

moved quickly to detain Appellant, who was spotted outside of his home. 

Once detained, Appellant stated that “they are only male plants.” N.T., 

1/3/13, at 53. He also indicated that additional narcotics were located in his 

home. 

 The troopers seized approximately 11 marijuana plants from 

Appellant’s property. Based on these seizures, other observations at the 

scene, and Appellant’s statements, Trooper McIntosh obtained a warrant to 

search Appellant’s home and an enclosed structure near the home that 

smelled of marijuana. During that ensuing search, a few more plants were 

seized, as well as paraphernalia related to marijuana cultivation. 

 Subsequently, the Commonwealth charged Appellant with 

manufacturing marijuana, 35 P.S. § 780–113(a)(30), possession of a 

controlled substance (marijuana), 35 P.S. § 780–113(a)(16), and possession 

____________________________________________ 

1

 Trooper McIntosh purportedly made this observation with his naked eye, 

from 500-700 feet above ground, moving at approximately 75-85 miles per 

hour. N.T., 1/3/13, at 17-18. 
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of drug paraphernalia, 35 P.S. § 780–113(a)(32). Appellant filed an 

omnibus pre-trial motion on October 31, 2012, seeking, inter alia, 

suppression of his statements and the seized contraband. The trial court 

conducted a suppression hearing on January 3, 2013, and denied Appellant’s 

suppression motion(s) on May 28, 2013. Appellant also filed a motion to 

compel discovery on February 7, 2013, which, pertinent to this appeal, 

sought discovery of the identity of an informant and lab results from the 

testing of the seized marijuana plants. The Commonwealth eventually 

revealed the identity of the informant six months prior to Appellant’s trial 

after initially denying that he existed. 

 Appellant proceeded to a jury trial on December 12, 2013, where the 

jury convicted him of all three of the above offenses. On March 6, 2014, the 

trial court sentenced Appellant to an aggregate term of 16-48 months’ 

incarceration. On April 2, 2014, Appellant filed a timely notice of appeal. He 

then filed a timely Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal on April 24, 2014. The trial court issued its Rule 1925(a) opinion on 

June 6, 2014. 

 Appellant now presents the following allegations of error for our 

review: 

[I.] The lower court erred in refusing to grant a mistrial and in 

failing to bar a re-trial based on the extensive prosecutorial 

misconduct of the district attorney throughout the case. 

[II.] The lower court erred when it found that [Appellant]’s 

Fourth Amendment rights were not violated when the police 
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should have obtained a search warrant before going on[ ]to the 

property and securing any plants. 

Appellant’s Brief, at 7 (unnecessary capitalization omitted). 

 We apply the following standard of review to a claim that a trial court 

erred in refusing to grant a mistrial: 

It is well-settled that the review of a trial court's denial of a 

motion for a mistrial is limited to determining whether the trial 

court abused its discretion. An abuse of discretion is not merely 

an error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will ... discretion is abused. A trial court may grant a 

mistrial only where the incident upon which the motion is based 

is of such a nature that its unavoidable effect is to deprive the 

defendant of a fair trial by preventing the jury from weighing 

and rendering a true verdict. A mistrial is not necessary where 

cautionary instructions are adequate to overcome prejudice. 

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa. Super. 2014) 

(quoting Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013)). 

 Furthermore, 

The phrase “prosecutorial misconduct” has been so abused as to 

lose any particular meaning. The claim either sounds in a 

specific constitutional provision that the prosecutor allegedly 

violated or, more frequently, like most trial issues, it implicates 

the narrow review available under Fourteenth Amendment due 

process. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 

3102, 97 L.Ed.2d 618 (1987) (“To constitute a due process 

violation, the prosecutorial misconduct must be of sufficient 

significance to result in the denial of the defendant's right to a 

fair trial.”) (internal quotation marks omitted); Donnelly v. 

DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 

431 (1974) (“When specific guarantees of the Bill of Rights are 

involved, this Court has taken special care to assure that 

prosecutorial conduct in no way impermissibly infringes them.”). 

However, “[t]he Due Process Clause is not a code of ethics for 

prosecutors; its concern is with the manner in which persons are 

deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504, 
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511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is 

the fairness of the trial, not the culpability of the prosecutor. 

Commonwealth v. Tedford, 960 A.2d 1, 28 (Pa. 2008). 

Appellant sought a mistrial based on multiple allegations of 

prosecutorial misconduct. We consider each allegation in turn. 

 The first subpart of Appellant’s prosecutorial misconduct claim 

concerns Appellant’s attempts to identify an informant who precipitated the 

initial aerial search of his property by the Trooper McIntosh. At the January 

3, 2013 suppression hearing, Trooper McIntosh testified that he conducted 

aerial surveillance of Appellant’s property because he “had received a tip 

that [Appellant] was growing [m]arijuana on the property.” N.T., 1/3/13, at 

62. When Appellant’s counsel asked if Anthony Milliard, Appellant’s 

neighbor, had been the source of the tip, the Commonwealth objected on 

relevancy grounds. The trial court sustained the Commonwealth’s objection, 

reasoning that “[t]here’s been no challenge to the search warrant itself in 

terms of the information that was supplied in support of the warrant. So I’ll 

sustain that objection.” Id. at 63. 

 On February, 4, 2013, the Commonwealth, in its response to 

Appellant’s initial discovery request, denied the existence of an informant, 

thereby contradicting Trooper McIntosh’s suppression hearing testimony. 

This prompted Appellant to file a motion to compel discovery on February 7, 

2013. A hearing on that motion was held on March 4, 2013. Appellant 

notified the court of Trooper McIntosh’s suppression hearing statement. 
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Nevertheless, the Commonwealth again denied the existence of any 

informant. 

In an order dated March 4, 2013, the trial court neither denied nor 

granted Appellant’s motion, but instead afforded him the opportunity to 

obtain and review the suppression hearing transcript in order to evidence 

Trooper McIntosh’s suppression hearing statement. Appellant obtained the 

transcript, proved the Commonwealth’s error, and, on June 7, 2013, the 

Commonwealth advised Appellant that Trooper McIntosh had received a tip 

from another Pennsylvania State Police officer, Trooper Agosti. Trooper 

Agosti then confirmed for Appellant that he had been tipped off by Anthony 

Milliard. 

 Appellant contends that the Commonwealth’s conduct, as detailed 

above, constituted a Brady2 violation. “To establish a Brady violation, a 

defendant must show that: (1) the evidence was suppressed by the state, 

either willfully or inadvertently; (2) the evidence at issue is favorable to the 

defendant; and (3) the evidence was material, meaning that prejudice must 

have ensued.” Commonwealth v. Willis, 46 A.3d 648, 667 (Pa. 2012). 

____________________________________________ 

2 Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States 

Supreme Court held that “the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. 
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 Here, it is apparent that Appellant has satisfied the first element 

necessary to establish a Brady violation. The Commonwealth admitted that 

there was an informant in this case after having denied his existence. It is 

also plausible that knowledge of the informant could have served one or 

more defense strategies at trial. Therefore, the (temporarily) withheld 

evidence could be construed as “favorable” to Appellant, in satisfaction of 

the second Brady element.3 

However, to be entitled to relief under Brady, Appellant must also 

show that the (temporarily) undisclosed evidence was material to his case,

i.e., that he was prejudiced by the Commonwealth’s failure to disclose that 

evidence. The trial court rejected Appellant’s Brady claim because the 

Commonwealth ultimately disclosed the existence and name of the 

informant six months before Appellant’s trial. Nevertheless, Appellant 

contends that “[b]ecause of the District Attorney’s withholding of information 

for 6 months, and due to the minimal information which was eventually 

provided by the District Attorney, [d]efense counsel was unable to 

adequately present the information to the jury regarding the tipster 

neighbor.” Appellant’s Brief, at 18. Appellant’s argument appears to merely 

be a bald, unsubstantiated assertion of prejudice. 

____________________________________________ 

3

 Appellant suggests that the informant’s identity could have been used to 

buttress an argument to the jury that the informant, Appellant’s neighbor, 

rather than Appellant, had planted the marijuana plants in the field on the 

outskirts of Appellant’s property. 
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Evidence is material under Brady, and the failure to disclose it 

justifies setting aside a conviction, only where there exists a 

reasonable probability that had the evidence been disclosed the 

result at trial would have been different. Conversely, “[t]he 

mere possibility that an item of undisclosed information might 

have helped the defense, or might have affected the outcome of 

the trial does not establish materiality in the constitutional 

sense.” 

Commonwealth v. Chamberlain, 30 A.3d 381, 409 (Pa. 2011) (internal 

citations omitted). 

 Here, Appellant’s Brady claim is not based on the Commonwealth’s 

failure to disclose evidence in the absolute sense, but on the 

Commonwealth’s delay in disclosing that evidence. Thus, it is incumbent 

upon Appellant to demonstrate that the delay in disclosure prejudiced him to 

an extent that it affected the outcome of his trial. Appellant has not met 

this burden. The initially withheld evidence was disclosed well before 

Appellant’s trial began, and he has not offered a plausible, specific argument 

as to how that initial delay hindered his defense at trial six months later. 

Accordingly, we conclude that this subpart of Appellant’s prosecutorial 

misconduct claim lacks merit. 

 Next, Appellant claims that the prosecutor failed to provide him with 

an updated property log from the PSP. His entire argument is as follows: 

As part of the discovery process, the District Attorney 

provided the State Police Incident Report as well as the 

State Police Property Record. ... The Property Record which 

was provided by the District Attorney indicates the date 

and time the evidence was originally received at the state 

police barracks and the officer who received the evidence. 

However the Property Record is not complete in that it 

does not indicate when the evidence was taken from the 
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evidence room and taken to the lab for testing. It also 

does not show which items were taken to the lab to be 

tested. On December 4, 2013, approximately 8 days 

before the trial, defense counsel emailed the District 

Attorney requesting a copy of the property log. The 

purpose of the property log (also interchangeably referred 

to by defense counsel as a property record) was to 

establish the chain of custody for the material submitted to 

the lab. The District Attorney responded that he had 

previously supplied the property log in the original 

discovery and that he did not have an updated one. 

Defense counsel then viewed the property log but it was 

not updated and was not complete in that it did not

indicate at the bottom portion when the evidence was 

taken out of the property room and taken to the lab. 

Obviously we know that the evidence was taken to the lab, 

but what was taken to the lab, when it was taken and by 

whom is information that the District Attorney did not 

provide to the defense. 

During a discussion in chambers after trial had 

commenced, defense counsel explained that she was 

prejudiced because she had not received an updated 

property record. The property record would have allowed 

defense counsel to better prepare for the case. Part of the 

defense relied upon the fact that there had been another 

marijuana arrest at the Defendant's neighbor's house, 

which also related to the information regarding the tipster. 

Also, the property record provides important information 

regarding chain of custody. It would show when items 

were taken out of evidence, what was taken out of 

evidence, and when items were returned to evidence. This 

information is analyzed by the defense in order to prepare 

questions for the police at trial, including establishing a 

proper chain of custody. 

The prosecutor's response to the missing property 

record during the trial was "I don't have an updated one in 

terms of when it went to the lab[,]" [a]gain demonstrating 

the complete lack of concern for [Appellant]'s right to 

discoverable documents. 

Appellant’s Brief, at 19-20 (internal citations to the record omitted). 
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 Notably, Appellant does not allege any specific trial court error with 

respect to this claim. Additionally, the trial court found that 

[t]he property log was not admitted into evidence, the initial 

request by [Appellant] to the Commonwealth does not appear of 

record, and there was no motion made on behalf of [Appellant] 

to compel an updated property log. The chain of custody for the 

marijuana was not directly challenged during trial, nor was there 

any objection made to the introduction or the admission into 

evidence of the marijuana plants. 

TCO, at 4. 

 Nevertheless, Appellant included this claim when he requested a 

mistrial. However, Appellant has not explained how the prosecutor’s actions 

(or inactions) regarding the property log impeded his trial strategy other 

than to baldly claim that “[t]he property record would have allowed defense 

counsel to better prepare for the case.” Appellant’s Brief, at 20. Appellant 

has not specified which of his constitutional rights, if any, were violated by 

the Commonwealth’s (mis)conduct, nor has he cited any pertinent case law 

in support of this allegation. Accordingly, we conclude that the second 

subpart of Appellant’s prosecutorial misconduct claim is under-developed, 

meritless, or both. 

 The third subpart of Appellant’s prosecutorial misconduct claim 

concerns evidence of his relationship to the searched property. The 

document that provided indicia of Appellant’s occupancy was referenced in 

the search warrant receipt, but neither it, nor its content, was provided to 

the defense prior to trial. Instead, the document was revealed, apparently 

for the first time since its seizure, in front of the jury. The indicia of 
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occupancy turned out to be a receipt for a payment that Appellant made to 

Elk County Probation. 

 Appellant complains that this document, from which the jury could 

have inferred otherwise inadmissible prior criminal conduct, should have 

been disclosed to him prior to trial. Furthermore, he claims the document 

should have been reviewed by defense counsel, the prosecution, and/or the 

court prior to having the witness read it aloud before the jury. 

When this matter arose at trial, the District Attorney stated that he 

had no idea that the sealed envelope contained potentially inadmissible 

content until it was opened at trial.4 N.T., 12/12/13, at 117-119. The 

District Attorney also argued that he had not acted in bad faith because he 

had no intention of presenting that document to the jury. The District 

Attorney stated that he intended to simply ask the PSP troopers if they had 

found indicia of Appellant’s residency at the home during the search. The 

District Attorney argued that the document had only been revealed to the 

jury because of Appellant’s best evidence objection to this testimony 

regarding the receipt. Id. at 110. 

 The trial court recognized the potential prejudice from reference to the 

probation department, and issued the following curative instruction to the 

jury: 

____________________________________________ 

4

 The warrant receipt referred to this sealed document merely as, “Indicia of 

Occupancy (Receipt).” Trial Court Docket Entry 3, at 7. 
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I am now instructing you that as a matter of law, you may not 

consider the reference to probation in any way adverse to 

[Appellant]. You may not construe that in any way. You may 

not extrapolate that information or make any inferences from 

that information. In fact, you should not consider that 

whatsoever. 

Id. at 154. 

The trial court states that “[t]here was no objection lodged by 

[Appellant] to the cautionary instruction itself.” TCO, at 5. Nevertheless, 

Appellant did argue during a lengthy sidebar preceding the curative 

instruction that a curative instruction could not undue the prejudicial nature 

of the probation reference. N.T., 12/12/13, at 132. Consequently, it is 

apparent from the record that Appellant did not concede that the instruction 

was sufficient to remedy his prior objection to the probation reference, nor 

did he waive the claim. 

Nevertheless, the trial court considered Appellant’s aggregate 

prosecutorial misconduct claim and found that 

the totality of the circumstances did not rise to the level of 

manifest necessity to declare a mistrial, where 1) a cautionary 

instruction was provided regarding the reference to the receipt 

issued by the Elk County Probation Department[;] 2) the identity 

of the confidential informant was ultimately provided to the 

defense in June of 2013, some six months before trial[;] 3) the 

fact that the Commonwealth did not provide the crime lab report 

dated November 7, 2013, until ... December 4, 2013, was not by 

any fault of the Commonwealth as it was not presented to the 

district attorney’s office until December 4th[;] and 4) that the 

Commonwealth was not aware of items listed on the back page 

of the property record report, one of which was the reference to 

the probation department receipt. Considering all the factors, 

the Court determined that the discrepancies and the

Commonwealth’s failure to present the evidence to the defense 
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in as timely a manner as [Appellant] would have liked did not 

rise to the level of manifest necessity. 

TCO, at 5-6. 

 Appellant claims he was denied a fair trial because of the actions of the 

Commonwealth in this case. However, as discussed above, the first two 

subparts to Appellant’s claim do not provide a basis for relief. Despite the 

Commonwealth’s initial denials, Appellant was provided with evidence 

concerning the informant six months prior to his trial, providing him with 

ample time to prepare any defense premised on that information. Regarding 

the property log discrepancies, Appellant failed to argue with adequate 

specificity how or why he was prejudiced by those discrepancies. 

Thus, the only question that remains is whether the incident 

concerning the probation receipt deprived Appellant of a fair trial, and we 

agree with the trial court that it did not. We do recognize and acknowledge 

the District Attorney’s lackluster performance of his duties in this case. 

However, for the purpose of a prosecutorial misconduct claim, “[t]he 

touchstone is the fairness of the trial, not the culpability of the prosecutor.” 

Tedford, 960 A.2d at 28. Although the prosecutor should not have 

permitted his witness to read the probation receipt out loud before the jury 

without first reviewing its content, there was no mention of specific criminal 

conduct made, and the mention of probation was never repeated nor 

referenced again by the prosecutor. Moreover, the jury was instructed not 

to draw any adverse inference from the probation reference. See 

Commonwealth v. Morris, 519 A.2d 374 (Pa. 1986) (holding prejudice 
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from limited reference to specific prior criminal activity cured by immediate 

cautionary instruction and admonition in jury charge); and see 

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (“The 

presumption in our law is that the jury has followed instructions.”). 

Consequently, we conclude that the trial court did not abuse its discretion 

when it denied Appellant’s motion for a mistrial. As such, we need not 

address Appellant’s derivative claim that retrial should be precluded on 

double jeopardy grounds. 

Next, Appellant asserts that the police, absent exigent circumstances, 

should have obtained a warrant before entering his property to seize the 

marijuana plants discovered during the aerial surveillance of his property. 

He contends the trial court erred when it denied his motion to suppress the 

seized evidence on this basis. 

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court's factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court's factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court's legal conclusions are erroneous. 

Where, as here, the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court's legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the 

conclusions of law of the courts below are subject to our plenary 

review. 
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Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) 

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super. 

2012)). 

The trial court determined that the aerial search that discovered the 

marijuana plants on Appellant’s property was permissible under the ‘open 

fields’ doctrine. It then concluded that the PSP troopers’ subsequent entry 

onto Appellant’s property was “incident to detain any individuals found on 

the property in the context of the perpetration of a felony in the nature of 

the manufacture of a controlled substance[.]” TCO, at 9. Although we 

disagree with the entirety of the trial court’s analysis, we ultimately agree 

with its conclusion to deny Appellant’s suppression motion. 

In Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), our 

Supreme Court explained and discussed the ‘open fields’ doctrine as follows: 

The open fields doctrine was first recognized by the U.S. 

Supreme Court in Hester v. United States, 265 U.S. 57, 44 

S.Ct. 445, 68 L.Ed. 898 (1924). In that case, while surveilling 

the home of Hester's father (where Hester lived), two revenue 

officers observed Hester exit the house and hand a quart bottle 

to an individual whom the officers suspected to be attempting to 

purchase illegal bootleg whiskey. After the officers began 

pursuing the two men, they fled, Hester discarding a jug and his 

would-be customer the bottle. Thereafter, the officers recovered 

the vessels at an undisclosed distance from the house and 

determined them to contain “moonshine whisky, that is, whisky 

illicitly distilled.” Id. at 58, 44 S.Ct. at 446. Hester claimed that 

the evidence was inadmissible under the Fourth Amendment 

because the officers seized it without a warrant. In a brief 

opinion for a unanimous court, Justice Oliver Wendell Holmes, 

Jr., concluded that “[i]t is obvious that even if there had been a 

trespass, the [evidence] was not obtained by an illegal search or 

seizure.” Id. Citing Blackstone's Commentaries on the Laws of 
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England, Justice Holmes held that “the special protection 

accorded by the Fourth Amendment to the people in their 

‘persons, houses, papers and effects,’ is not extended to the 

open fields. The distinction between the latter and the house is 

as old as the common law.” Id. at 59, 44 S.Ct. at 446. 

Sixty years later, in a 6–3 decision in Oliver v. United 

States, [466 U.S. 170, (1984)], the High Court “reaffirm[ed]” 

the vitality of the open fields doctrine as announced in Hester. 

Oliver, 466 U.S. at 178, 104 S.Ct. at 1741; id. at 176 n.6, 104 

S.Ct. at 1740 n.6 (rejecting the notion that “subsequent cases 

discredited Hester's reasoning”). Turning its attention initially 

to the constitutional text, the Oliver Court noted that open fields 

are not “effects” within the meaning of the Fourth Amendment. 

Indeed, the Court observed, “[t]he Framers would have 

understood the term ‘effects' to be limited to personal, rather 

than real, property.” Id. at 177 n. 7, 104 S.Ct. at 1740 n.7 

(citing, as Justice Holmes did, Blackstone's Commentaries, 

among other sources). 

Even assuming one had a subjective expectation of privacy 

in his open fields, the Oliver Court went on to reason, such an 

expectation is not one that society would be prepared to 

recognize as reasonable: 

[O]pen fields do not provide the setting for those intimate 

activities that the Amendment is intended to shelter from 

government interference or surveillance. There is no 

societal interest in protecting the privacy of those 

activities, such as the cultivation of crops, that occur in 

open fields. Moreover, as a practical matter these lands 

usually are accessible to the public and the police in ways 

that a home, an office, or commercial structure would not 

be. It is not generally true that fences or “No Trespassing” 

signs effectively bar the public from viewing open fields in 

rural areas. And both petitioner Oliver and respondent 

Thornton concede that the public and police lawfully may 

survey lands from the air. 

Id. at 178, 104 S.Ct. at 1741–42. 

Finally, the Oliver Court explicitly rejected the contention 

that the reasonableness of one's expectation of privacy in his 

open fields should be determined on an ad hoc, case-by-case 

basis: 
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Under this approach, police officers would have to guess 

before every search whether landowners had erected 

fences sufficiently high, posted a sufficient number of 

warning signs, or located contraband in an area sufficiently 

secluded to establish a right of privacy.... The lawfulness 

of a search would turn on a highly sophisticated set of 

rules, qualified by all sorts of ifs, ands, and buts and 

requiring the drawing of subtle nuances and hairline 

distinctions. The ad hoc approach not only makes it 

difficult for the policeman to discern the scope of his 

authority; it also creates a danger that constitutional rights 

will be arbitrarily and inequitably enforced. 

Id. at 181–82, 104 S.Ct. at 1743 (citations and quotation marks 

omitted). In this regard, the Court specifically 

reject[ed] the suggestion that steps taken to protect 

privacy establish that expectations of privacy in an open 

field are legitimate. It is true, of course, that petitioner 

Oliver and respondent Thornton, in order to conceal their 

criminal activities, planted the mari[j]uana upon secluded 

land and erected fences and “No Trespassing” signs around 

the property. And it may be that because of such 

precautions, few members of the public stumbled upon the 

mari[j]uana crops seized by the police. Neither of these 

suppositions demonstrates, however, that the expectation 

of privacy was legitimate in the sense required by the 

Fourth Amendment. The test of legitimacy is not whether 

the individual chooses to conceal assertedly “private” 

activity. Rather, the correct inquiry is whether the 

government's intrusion infringes upon the personal and 

societal values protected by the Fourth Amendment. 

Id. at 182–83, 104 S.Ct. at 1743 (footnote omitted). 

Russo, 934 A.2d at 1203-05 (footnote omitted). Moreover, the 

Pennsylvania Supreme Court concluded in Russo that “the guarantees of 

Article I, Section 8 of the Pennsylvania Constitution do not extend to open 

fields; federal and state law, in this area, are coextensive.” Id. at 1213. 
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 Here, Appellant does not contend that the aerial surveillance of his 

property was illegal. Instead, he asserts that it was illegal for Troopers 

McIntosh and Emery to subsequently enter his property without a warrant, 

or in the absence of exigent circumstances, in order to seize the marijuana 

plants discovered during the aerial surveillance. He argues that to seize 

property discovered in plain view, the Commonwealth must view the 

contraband from a lawful vantage point and that there must be exigent 

circumstances justifying the seizure without a warrant. 

However, Appellant does not dispute that the aerial surveillance was 

legal in this case. Indeed, for the same reason the aerial surveillance was 

not illegal, neither a warrant nor exigent circumstances were necessary to 

justify the seizure that occurred. Because the marijuana plants were located 

in open fields, Appellant lacked a legitimate expectation of privacy necessary 

to justify suppression of the seized plants. Hester, Oliver, Russo. 

Appellant contends that Commonwealth v. English, 839 A.2d 1136 

(Pa. Super. 2003), supports his claim that exigent circumstances were 

required to justify the warrantless seizure of the marijuana plants. In 

English, 

Cranberry Township Patrolman Robert O'Neill and 

Detective Frank Evanson received an anonymous tip that the 

occupants of 206 Hester Drive were growing marijuana on their 

back porch. The following day the officers went to the residence 

to investigate. They knocked several times on the front door, 

got no response, and then walked around toward the back of the 

house. Their path took them through a neighbor's yard. From 

the neighbor's yard they observed marijuana plants growing on 

[the] appellant's back deck. Officer O'Neill recognized the plants 
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as marijuana because of his experience and training. He 

explained that the plants were easily identifiable as they were 

elevated, sitting in a planter on top of a child's picnic table on 

the deck. The officers took photographs of the plants. 

The officers knocked repeatedly on the back door, which 

was situated under the deck, and got no response. They tried 

the front door again, with the same result. Thereafter, the 

officers unlatched the gate to the deck, entered the deck and 

seized the plants. 

English, 839 A.2d at 1138-39. 

 The English Court found that the marijuana plants had been 

discovered in plain view. However, it also found that the plants were located 

on the appellant’s “deck[,] which was enclosed by a fence and a latched 

gate.” Id. at 1141. The court determined that the plants’ location clearly 

fell within the curtilage of the appellant’s home, and the appellant had a 

legitimate expectation of privacy therein. Id. 

As this Court has previously recognized: 

Our courts have extended this constitutional protection to the 

curtilage of a person's home by analyzing factors that determine 

whether an individual reasonably may expect that an area 

immediately adjacent to the home will remain private. Curtilage 

is entitled to constitutional protection from unreasonable 

searches and seizures as a place where the occupants have a 

reasonable expectation of privacy that society is prepared to 

accept. 

Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. Super. 2012) (internal 

citations and quotation marks omitted). 

 Here, Appellant does not claim that the seized marijuana plants were 

seized from within the curtilage of his residence, nor does he contest the 
J-A07031-15 

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trial court’s determination that the plants were seized from open fields. 

Consequently, English does not support his claim. 

We reject the trial court’s conclusion that the seizure in question was 

permissible “in the context of the perpetration of a felony” because, among 

other things, the trial court has not provided any legal authority for such a 

conclusion. TCO, at 8. Nevertheless, “the suppression court's legal 

conclusions are not binding on an appellate court[.]” McAdoo, 46 A.3d at 

784 (quoting Hoppert). Because we conclude that Appellant lacked a 

legitimate expectation of privacy in the location of the seized marijuana 

plants, his Fourth Amendment rights did not provide a basis to suppress that 

evidence. Accordingly, we conclude that Appellant’s second claim lacks 

merit. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/13/2015