dissenting.
I respectfully dissent. I do not believe that the Commonwealth proved by a preponderance of the evidence that the officers would have conducted a search and, inevitably, would have found Dale Rood hunting in his tree stand without a valid hunting license.1 Thus, I would reverse the order of the trial court.
The trial court stated that, although Officer Michael Lander went to look for Rood at a particular place based on information obtained during the tainted interrogation of John Robert Morgan,
I believe that the clear indication from all the evidence is that [the officer] would have gone searching out in the fields for Mr. Rood in any event and that his finding of Mr. Rood in the fields is not a direct result or fruit of finding the deer in the barn.
(R.R. at 248a.) (Emphasis added.) Thus, the trial court suggests that the officers inevitably would have discovered the evidence against Rood by lawful means. I cannot agree.
The majority believes that the following facts are sufficient to support the trial court’s determination: (1) the anonymous tip indicated that the hunter was still out hunting; and (2) the officers had the power and duty to go upon any land outside of buildings, posted or otherwise, to investigate any alleged violation. (Majority op. at 449-450.) I do not believe that these facts, by themselves, establish by a preponderance of the evidence that the officers would have ultimately conducted a lawful search and would *452have inevitably discovered Rood hunting at his tree stand without a valid hunting license.
First, none of the officers testified that they were planning to search Rood’s thirty-five acres of land for a hunter whom neither officer would have recognized.2 (R.R. at 156a.) Quite the contrary, Officer Barber testified that them sole purpose was to try to locate someone at Rood’s residence to question about the anonymous tip. (R.R. at 24a, 41a.) There is no evidence that they intended to walk aimlessly over unfamiliar territory to find some unknown person who may have been hunting illegally. Indeed, after the officers found no one at the house or the barn, they returned to their vehicle either to wait or to leave. (R.R. at 27a, 51a.) Having found no one at home to give consent for a lawful search of the barn, I believe'it is more likely than not that, until they saw Morgan, the officers were planning to leave the property.3
Moreover, even if the officers would have gone searching for Rood at that point, I cannot say that, if the officers had not run into Morgan, they would have discovered Rood hunting without a valid hunting license. I believe it would have been nothing more than a scavenger hunt. Without Morgan’s or anyone else’s statements to guide them directly to Rood’s location, the officers would have had no idea where to search on thirty-five acres of unfamiliar land for a hunter whom they never met. Under these circumstances, I believe it is probable that the officers never would have found Rood or Rood’s tree stand. Indeed, at any time during the search, Rood could have moved from his tree stand or returned to his house. Thus, the officers might have found Rood, but without any evidence that he was hunting, or they might have found the tree stand, but without Rood.
In sum, unlike the trial court and the majority, I cannot say that the officers would have gone searching for Rood simply because they had the power and a duty to go upon land to investigate an alleged violation of the Code, and I certainly cannot say that a search, if made, would have yielded results.4
Finally, because I do not believe that the officers would have found Rood without the information which they illegally obtained from Morgan, Rood’s subsequent statement and his consent to search the barn do not constitute an untainted and independent source of the evidence against Rood.
Accordingly, I would reverse.5
KELLEY, J., joins in this dissent.
. Under the inevitable discovery doctrine, the. prosecution must establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
A preponderance of evidence is evidence which, taken as a whole, shows that the fact sought to be proved is more probable than not. Black’s Law Dictionary 1064 (5th ed.1979).
. The officers did not know Rood and had never been on Rood's property; thus, neither officer knew the size or character of Rood's land. Indeed, upon their arrival, they even had to confirm the location of Rood's residence with a neighbor. (R.R. at 23a, 39a, 40a, 67a.)
. Under section 901(9) of the Game and Wildlife Code (Code), 34 Pa.C.S. § 901(9), the officers had a duty to; “Secure ... search warrants ... to search or enter any building, dwelling, house, ..., [or] enclosure.” Given their failure to get consent to search the barn and their legal duty to secure a search warrant in such instances, they could not conduct a lawful search without a search warrant. Thus, the officers probably would have left the premises.
. These officers did not get consent to search the barn and, without consent, they had to obtain a search warrant, which they did not do. Thus, their search of the barn was unlawful, and, as indicated above, no lawful search would have occurred thereafter to remove the taint.
.I also question whether any search of Rood’s property by the officers would have been legal without a search warrant. Under 34 Pa.C.S. § 901(9), the officers had a duty to secure a search warrant before entering any enclosure.
Here, the record indicates that Rood had enclosed his pasture with a barbed wire fence, an indication that Rood had an expectation of privacy with respect to that pasture. (R.R. at 152a-53a.) Moreover, society recognizes that such an expectation of privacy is reasonable. Indeed, in Pennsylvania, a person who enters a place where the fencing is manifestly designed to exclude intruders is guilty of a misdemeanor of the third degree. 18 Pa.C.S. § 3503(b)(1).