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COMMONWEALTH v. MCCLOSKEY (12/10/70)

decided: December 10, 1970.

COMMONWEALTH
v.
MCCLOSKEY, APPELLANT



Appeal from order of Court of Common Pleas of the 17th Judicial District, Union County Branch, Feb. T., 1968, No. 35, in case of Commonwealth of Pennsylvania v. Roy Wilson McCloskey.

COUNSEL

James F. McClure, Jr., for appellant.

A. Thomas Wilson, submitted a brief, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Concurring Opinion by Montgomery, J. Dissenting Opinion by Wright, P. J. Watkins, J., joins in this dissenting opinion.

Author: Cercone

[ 217 Pa. Super. Page 433]

This is an appeal by Roy Wilson McCloskey from a conviction for violation of Section 4(q) of The Drug, Device and Cosmetic Act.*fn1 He was found guilty of possession of marijuana after a non-jury trial and was sentenced to three years probation and ordered to pay costs of prosecution and a fine of One Thousand Dollars ($1,000.00).

In this appeal, defendant argues, inter alia, illegality of the search which uncovered the evidence upon which his conviction was based.

Armed with a warrant secured for the purpose of searching defendant's college dormitory room at Bucknell University for marijuana, a narcotics agent and a state trooper proceeded to the University campus and there met with the Dean of Men, John Dunlop. Dean Dunlop and the two officers then met the head resident of Swartz Hall, one Skitmoore, and all four proceeded to Room 373, Swartz Hall, where the defendant lived. There was conflicting testimony as to whether anyone

[ 217 Pa. Super. Page 434]

    knocked on the defendant's door. Narcotics agent Garrettson stated there was no knock. All witnesses agree, however, that there was no announcement of identity or purpose prior to entry into the room, which was achieved by use of a passkey possessed by Skitmoore. After entry, defendant was told the purpose of the visit and shown the warrant. When a search of the room revealed a quantity of marijuana, McCloskey was advised of his rights and arrested.

Defendant contends that the entry into his room was improper and that the fruits of the resulting search were therefore inadmissible as evidence against him. We believe the defendant is correct in this claim. Although the evidence procured indicates illegal conduct, an application of the governing rules of law constrains us to hold it was the result of an improper search. The Fourth Amendment prohibition against any unreasonable search and seizure requires that before a police official enters private premises to conduct a search or to make an arrest, he must give notice of his identity and purpose, except when exigent circumstances justify the failure to give notice: Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).

Precedent requires us to hold the rule so enunciated in the Newman case applies where, as here, defendant's door was unlocked with a passkey without prior announcement. In Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968) (entry made by opening unlocked door), the Supreme Court commented: "An unannounced intrusion into a dwelling . . . is no less an unannounced intrusion whether officers break down the door, force open a chain lock on a partially open door, open a locked door by use of ...


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