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COMMONWEALTH v. ROBBINS (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
ROBBINS, APPELLANT



Appeal from judgment of sentence of Court of Quarter Sessions of Bucks County, No. 803 of 1965, in case of Commonwealth of Pennsylvania v. William Robbins.

COUNSEL

Maier Segal, for appellant.

Steven Harris, Assistant District Attorney, with him Charles J. Conturso, Assistant District Attorney, Oscar Bortner, First Assistant District Attorney, and Ward F. Clark, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Hoffman, J.

Author: Per Curiam

[ 216 Pa. Super. Page 234]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Concurring Opinion by Hoffman, J.:

On the night of June 10-11, 1965, police officers conducted a search of a wooded area belonging to appellant. The wooded area was located approximately twenty-five feet from the edge of the lawn in front of appellant's house. The officers found in this area certain marijuana plants, which were used in evidence against appellant on a charge of unlawful possession of narcotics. Appellant filed a petition to suppress the evidence on the ground that the plants were seized without a proper warrant. This petition was denied. From judgment of sentence, this appeal followed.

Since the search was conducted before December 18, 1967, I would not decide whether appellant's reasonable expectation of privacy in the wooded area, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967), was violated by the instant search. Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030 (1969); Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A.2d 904 (1970) (concurring opinion). We must apply,

[ 216 Pa. Super. Page 235]

    therefore, the prior rule of law set forth in Hester v. United States, 265 U.S. ...


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