Tamaqua couple seeks return of property seized by police
A Tamaqua area couple filed a petition in Schuylkill County court claiming 459 items of personal property seized by police were under an unlawful search warrant and ask the court to have them returned.
Frederick A. and Annette B. Postie, 626 Fairview Street, Tamaqua R.D., ask the court to find evidence sufficiently in support of the fact that the search and seizure was conducted unlawfully and violated the Fourth and 14th amendments of the U.S. Constitution and asks the return of any and all property not considered contraband or otherwise unlawful to possess back to the couple.
The Posties claim that law enforcement violated their expectation of privacy when they trespassed on their property and when a police officer did not receive an answer to repeated knocks on the front door he proceeded to walk around the house into a tree-lined and secluded area in order to knock on the rear door whereupon a warrantless search revealed copper tubing in "plain view."
The Posties claim the plain view doctrine is limited by the probable cause requirements, that is, the officer must believe that items in plain view are contraband before they may search or size them. They claim any reasonable person utilizing common sense would deduce from the other debris that these few pieces of tubing were accompanied by pieces of plaster, wallboard, tile, wood, and fasteners which items were not contraband but merely discards from a recent and ongoing renovation project.
The Posties also claim the officer has no justifiable reason to proceed to the rear of the property because he was not serving a warrant or any other official business and there was no emergency, "no catastrophe, no mandatory evacuation and therefore no dire need for this officer to go above and beyond the realm of diligence in making sure no one was present in the house at that time." They state protection of property interests is at the basis of the Fourth amendment.
The Posties further claim that upon the officer's observing their car was not in the driveway and there was no answer to repeated knocks on the front door, he violated the rule of privacy by entering a secluded area of a private property when one should presume that no one was present in or around the property at that time. They also claim the search warrant was based on lack of requisite information for a finding of probable cause and that the officer did not offer supporting evidence that his information was obtained from a credible source or that the source was reliable.
They contend the officer did not attempt to support the claim that the information was received from a credible source. They further claim the items recovered from another residence the officer was told they were being held for a friend and other items could be found at the petitioner's home is information which is questionable as to credibility.
The action also claims the officer's statement in obtaining the warrant was that he believes the residence contains more stolen property from burglaries committed in Rush Township is nothing but a "bald and unilluminating assertation of suspicion that is entitled to no weighty in appraising the magistrate's decision because the claim of more stolen property would need to be corroborated by fact."
The officer's failure to mention the copper pipes lying in plain view were accompanied by other items and discards of a home-renovation nature did not allow the magistrate to render his decision based on the facts in their entirety. They claim because of the "slipshod" manner which the officer approached his duties when he described these items without any specifications, the warrant should be voided.
The petitioner does not mention the officers' names but there also was an affidavit filed to court obtained by Sgt. Duane E. Frederick, Rush Township police, listing the probable cause based on facts and circumstances on which he obtained the warrant.
In the affidavit it is stated the officer last Feb. 20 spoke with Frederick A. Postie at the township police station and that Postie voluntarily gave him information that the public was unaware of in reference to burglaries committed in Rush Township and that he knew where stolen items were at from the burglaries.
Based on this information Frederick said he went to 36 E. Ludlow St., Apt. 2, Summit Hill, and spoke to Kerry L. Frank ,who allowed him to search the premises and that he found a PPL power meter in the basement where Postie stated it would be and that Frank told him Postie did bring the power meter to his apartment. The officer also stated Frank told him he did see other stolen items from the burglary in Rush Township in the basement that was and removed Postie.
The officer also states in the affidavit his investigation led to 68 W. Center St., Nesquehoning, where he spoke to Michael M. Christman who stated Postie brought him a hot water heater and then dropped off copper pipes at a later time. The officer said through further investigation he learned the water heater was stolen from a burglary in Rush Township and that several different sizes of copper pipes seized from that residence.
Frederick also states in the affidavit in the evening hours of Feb. 20, 2012, he and another officer attempted to make contact with Annette Postie by knocking at the front door. After no answer, the officers attempted to knock at the back door where in plain view copper pipes were seen laying in the grass. At this point the officers left the residence.
"Do to the aforementioned facts," Frederick states in the affidavit, "I believe the residence at 626 Fairview Street contains more stolen property from burglaries committed in Rush Township."