Commonwealth v. Williams

LALLY-GREEN, J.,

dissenting:

¶ 1 I respectfully dissent. I would hold that 24 P.S. § 7-778 does not preclude school police officers from taking action away from school grounds so long as such action, in the totality of the circumstances, has a demonstrated nexus to the officer’s statutory authority. I would further hold that under the circumstances of this case, the Pittsburgh School Police were authorized to open the vehicle and to seize the *964weapons found therein. Finally, I would hold that no constitutional violation took place because the weapons were properly seized under the plain view doctrine. Accordingly, I would affirm the judgment of sentence.

¶ 2 The primary question in this case is whether § 7-778 authorized the Pittsburgh School Police to act as they did. Our goal is to ascertain and effectuate the intent of the Legislature. 1 Pa.C.S.A. § 1921(a). Section 7-778 reads in pertinent part as follows:

§ 7-778. School police officers
(a) Any school district may apply to any judge of the court of common pleas of the county within which the school district is situated to appoint such person or persons as the board of directors of the school district may designate as school police officer for said school district. The judge, upon such application, may appoint such person, or so many of them as he may deem proper, to be such school police officer and shall note the fact of such appointment to be entered upon the records of the court. The judge may, at the request of the school district, grant the school police officer the power to arrest as provided in subsection (c)(2), the authority to issue citations for summary offenses or the authority to detain students until the arrival of local law enforcement, or any combination thereof.
(c) Such school police officer so appointed shall severally possess and exercise all of the following powers and duties:
(1) To enforce good order in school buildings, on school buses and on school grounds in their respective school districts..

24 P.S. § 7-778(a), (c)(1) (emphasis added).5

¶ 3 It is undisputed that the school police officers were not in a school building, on a school bus, or on school grounds when they seized the weapons. The Majority reasons that by authorizing the officers to-enforce good order on school property, the Legislature has implied that those officers cannot do so when they are away from school property. On the other hand, the statute can be read to authorize a school officer to act away from school property, so long as the officer is, in doing so, “enforcing good order” on school property. Unlike the Majority, I am not convinced that the statute clearly and explicitly delineates the geographic scope of a school police officer’s authority.

¶ 4 Where the words of a statute are not explicit, the Legislature’s intention may be ascertained by considering, inter alia: (1) the object to be attained; (2) the mischief to be remedied; (3) the consequences of a particular interpretation; and (4) the former law, including other statutes on the same or similar subjects. 1 Pa.G.S,A. § 1921(c). We presume that the Legislature did not intend a result that is absurd, unreasonable, or impossible to execute. 1 Pa.C.S.A. § 1922(1); Eritano v. Commonwealth, 547 Pa. 372, 377, 690 A.2d 705, 708 (1997).

¶ 5 The Legislature’s intent respecting the relevant part of § 7-778 is clear. First, the plain language of § 7-778 indicates that the Legislature sought to provide a means for enforcing good order and safety on school property. Second, the mischief to be remedied is disorder and *965danger to persons and property on school grounds.

¶ 6 Third, the consequence of the Majority’s interpretation is that good order could be destroyed by limiting the officer’s authority to the geographic boundaries of school property. As the Majority recognizes, the danger to life (and certainly good order on school grounds),, is significant when guns, knives or other weapons are used from beyond school property to injure students or teachers who are on school property. Similarly, under the Majority’s interpretation, prohibited drugs, so destructive to the youth of this Commonwealth, could easily be sold immediately outside the borders of the school grounds to school children. Thus, the purpose of the statute, to “enforce good order in school buildings ... and on school grounds” is not served by the Majority’s restricted interpretation that the statute means only the geographic limits of the school grounds. As our Supreme Court said recently:

The myriad of interests at issue include the physical safety of the school students, teachers, administrators and other employees, the public concern of eliminating violence in the communities in general and the schools in specific, and the need to maintain schools as centers of learning free of fear for personal safety.... Simply stated, guns, knives, or other weapons, have no place in the public school setting.

In the Interest of F.B., 555 Pa. 661, 672-673, 726 A.2d 361, 367 (1999); see also Commonwealth v. Davis, 734 A.2d 879, 883 (Pa.Super.1999) (in order to make schools safe from crime, Pennsylvania law imposes higher penalties for drug sales occurring 1,000 feet from a school; moreover, the distance is measured from the point on school property which is closest to the crime).

¶ 7 Fourth, we look to statutes where similar language may exist and examine how each of these statutes has been interpreted. The relevant statutes are found in cases dealing with campus police or public housing police. In Commonwealth v. Croushore, 703 A.2d 546 (Pa.Super.1997), a university police officer stopped a motorist for running a red fight on a street abutting the university campus. This Court held that the officer exceeded his authority under 71 P.S. § 646 which states, in pertinent part, that campus police “shall exercise their powers and perform their duties only on the premises of the State colleges ... by or for which they are employed.” Id. at 547. In other words, the officer did not have the authority to arrest for a traffic offense where he did.

¶ 8 In Commonwealth v. Savage, 403 Pa.Super. 446, 589 A.2d 696, 698 (1991), appeal denied, 529 Pa. 633, 600 A.2d 953 (1991), a campus police officer arrested defendant off campus for driving under the influence of alcohol. The officer apprehended the defendant after he had run a red fight and had driven his truck the wrong way down a one-way street. Both of these traffic offenses took place on streets which were off campus. The Court held that the officer had exceeded his authority under § 646 to arrest where he did.

¶ 9 Finally, in Commonwealth v. Brandt, 456 Pa.Super. 717, 691 A.2d 934, 937 (1997), appeal denied, 549 Pa. 695, 700 A.2d 437 (1997), a Pittsburgh Housing Authority police officer stopped an automobile two blocks from the housing authority’s property and made a warrantless arrest for violation of the Motor Vehicle Code and the drug laws. Pursuant to 35 P.S. § 1550, a Housing Authority officer has police powers “with respect to the [Housing Authority’s] property and enforcing order on and adjacent to the grounds and buildings of the Authority.” Id. (emphasis in Brandt). The court held that the housing authority officer did not have jurisdiction to arrest two blocks away from housing authority property.

¶ 10 While I recognize that similarities exist between the statute in this case and the statutes in the cases discussed above, I *966am not convinced that these similarities compel the same result. In Croushore, Savage, and Brandt, the officers had the same rights, powers, and duties of city police officers, provided they acted within their territorial limits and completed appropriate training. Croushore, 703 A.2d at 546, citing 71 P.S. § 646(h); Savage, 589 A.2d at 697 (same); Brandt, 691 A.2d at 934 (citing 35 P.S. § 1550(ee)). This fact suggests that campus officers and housing authority officers act as a supplemental city police force to patrol specific areas. It is understandable that the authority of campus officers and housing authority officers should ordinarily be limited to fixed territorial limits. If a criminal offense takes place away from campus, or away from the housing authority’s grounds and buildings, city police are available to enforce the law.

¶ 11 In contrast, school police officers are not simply a supplemental city police force. They do not patrol campuses and housing authority property, where adults live and work. Nor is their duty limited to enforcing the criminal law. Rather, their broad duty is to enforce good order in the unique environment of elementary schools and high schools. This duty will necessarily involve acting away from school property (for example, in truancy situations). School police are uniquely equipped to do this duty; city police are not. Unlike the situation with campuses and public housing, the duty of enforcing good order “on school property” (when physically away from school property) cannot and does not lie exclusively with city police.

¶ 12 In light of the above, I would conclude that the legislative intent is to keep order on the grounds of the school, and to do so, school police have to perform some of their duties, such as finding truant students, away from the territorial boundaries of the school. The Majority’s interpretation of § 7-778 would eviscerate this basic function of school police. I would hold that a school police officer is not automatically divested of authority when he steps off school property.

¶ 13 Similarly, I would conclude that the critical inquiry is whether the officer was performing his duty of keeping good order on school grounds when the officer did what he did. In other words, was there a demonstrable nexus among the incident, the location, the people involved, the school police and the school itself? The analysis would be one of the totality of the circumstances, including but not limited to the following. Did the school officer observe truant students? When the officer observed the students, were they in a vehicle within the officer’s school district, albeit not on the school grounds? Did the students park the observed vehicle near the school? Did the officer observe where the vehicle was parked? Other relevant circumstances such as the behavior of the students could be considered in this totality of the circumstances analysis.

¶ 14 Turning to the facts of the case, the record reveals that Chief Fadzen saw three students drive away from Brashear High School after one of those students made an obscene gesture. Chief Fadzen later found the students’ vehicle parked on a public street one or two blocks from the school. After looking in the window, he saw a sawed-off shotgun and a shotgun shell in plain view. In the course of seizing that weapon from the unlocked vehicle, the officers found three handguns. These weapons, found in a student’s unlocked vehicle one to two blocks from a high school, constituted a substantial threat to good order on school property. The students possessed these weapons immediately before entering the high school, and would have regained possession thereof whenever they departed school if the officers’ actions had not intervened. By seizing the weapons and removing that threat, the school police officers acted to enforce good order on school property. Accordingly, I would hold that the trial court did not abuse its discretion in holding that the *967school police had authority to act under § 7-778.

¶ 15 Next, I would hold that the plain view doctrine justifies the seizure of all of the weapons found in the vehicle. Generally, a seizure conducted without a warrant is presumed to be unreasonable under both the United States Constitution and the Pennsylvania Constitution. Commonwealth v. Petroll, 558 Pa. 565, 788 A.2d 998, 998 (1999). “A search without a warrant may be proper where an exception applies and the police have probable cause to believe a crime has been or is being committed.” Id. at 999. The plain view doctrine is an exception to the warrant requirement. Id. A plain view observation “is not a search within the meaning of the Fourth Amendment and no warrant is required.” Commonwealth v. Weik, 360 Pa.Super. 560, 521 A.2d 44, 45 (1987).

¶ 16 Our Supreme Court recently set forth the parameters of the plain view doctrine as follows:

If a police officer views an object from a lawful vantage point, and the incriminating nature of the object is immediately apparent to the officer, a warrantless seizure of the object is justified. Commonwealth v. Ellis, 541 Pa. 285, 297, 662 A.2d 1043, 1049 (1995). There can be no expectation of privacy in an object in plain view. To judge whether the incriminating nature of an object was immediately apparent to the police officer, reviewing courts must consider the totality of the circumstances.[6]

Petroll, 738 A.2d at 999 (citation omitted).

¶ 17 Police may not justify a seizure under the plain view doctrine if illegal conduct brought the item into plain view. Commonwealth v. Graham, 554 Pa. 472, 481, 721 A.2d 1075, 1079 (1998); see also Brandt, 691 A.2d at 938 n. 5 (officer did not have lawful right of access to contraband in plain view on passenger seat of vehicle when officer acted beyond his authority in stopping the vehicle). In Commonwealth v. Milyak, 508 Pa. 2, 6, 493 A.2d 1346, 1348 (1985), our Supreme Court applied these principles to a police officer’s observation of the “plainly viewable interi- or of a vehicle”:

There is no reason a police officer should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled the officer to observe the interior of the car and of the open glove compartment was not a search within the meaning of the Fourth Amendment.

Id., quoting Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality) (brackets and ellipses omitted). Milyak cited Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) for the proposition that police may seize evidence from a vehicle without a warrant “based on plain view alone without regard to any exigent circumstances” under the United States Constitution. Id. at 9, 493 A.2d at 1350; see also Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297, 1299 (1992) (authorizing plain view seizure of weapon from auto without reference to exigent circumstances); Commonwealth v. Burton, 292 Pa.Super. 73, 436 A.2d 1010, 1013 (1982) (authorizing plain view seizure of marijuana from auto without reference to exigent circumstances).

*968¶ 18 The trial court found that the sawed-off shotgun was contraband, found in plain view. Trial Court Opinion, 1/7/99, at 7. The record supports this finding. The officers saw the shotgun and a shell easing in plain view through an untinted window of an automobile parked on a public street. Moreover, as discussed above, the school police were acting within the scope of their authority. For these reasons, the police viewed the evidence from a lawful vantage point. Appellant does not dispute that the incriminating nature of the evidence was immediately apparent. Thus, the immediate seizure of the shotgun and shell casing was justified under the plain view exception, regardless of whether exigent circumstances existed. Milyak, 508 Pa. at 9, 493 A.2d at 1350.

¶ 19 In the course of opening the vehicle’s door to seize the shotgun in plain view, Chief Fadzen and Officer Polin observed other guns in plain view. Chief Fadzen noticed a revolver protruding from underneath the front seat; Officer Pollock found additional weapons projecting under the passenger seat. Again, these items were lawfully seized. First, the officers saw these revolvers from a lawful vantage point. In the course of seizing the shotgun, they noticed the revolvers in plain view under the driver’s seat and passenger’s seat. Next, the incriminating nature of the weapons was immediately apparent. For these reasons, I would hold that the weapons were properly seized, and that no constitutional violation took place.

¶ 20 For these reasons, I respectfully dissent.

. As the Majority notes, subsections (c)(2) and (c)(3) are not at issue in this case. These subsections give school police officers the following powers:

(2) If authorized by the court, to exercise the same powers as are now or may hereafter be exercised under authority of law or ordinance by the police of the municipality wherein the school property is located.
(3) If authorized by the court, to issue summary citations or to detain individuals until local law enforcement is notified.

24 P.S. § 7-778(c)(2), (c)(3).

. “Immediately apparent” means that the officer has probable cause to believe, without any further investigation, that the item is contraband or incriminating evidence. Ellis, 541 Pa. at 297, 662 A.2d at 1049 (1995). The standard for evaluating whether probable cause exists is the "totality of the circumstances” test. The court must determine whether the facts and circumstances existing at the time of the seizure would have led a person of reasonable caution to believe that the evidence in question was incriminating. Id. at 298, 662 A.2d at 1049-1050.