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COMMONWEALTH v. DEMBO (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
DEMBO, APPELLANT



Appeal from order of Superior Court, April T., 1971, No. 36, affirming judgment of sentence of Court of Common Pleas of Crawford County, Feb. T., 1970, No. 66, in case of Commonwealth of Pennsylvania v. Micah Dembo.

COUNSEL

Brian E. Appeal, with him Bernard L. Segal, and Segal, Appel & Natali, for appellant.

Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.

Author: Nix

[ 451 Pa. Page 2]

Micah Dembo was convicted by a jury for possession of approximately eight ounces of hashish and a small quantity of marijuana seeds in violation of The Drug, Device and Cosmetic Act.*fn1 Motions for a new trial and arrest of judgment were denied and appellant was sentenced

[ 451 Pa. Page 3]

    to pay a Five Hundred Dollar ($500.00) fine and costs, to serve a term of probation for three years, and to undergo imprisonment during college vacation periods and an additional thirty days imprisonment upon graduation. The Superior Court affirmed the judgment of sentence and this appeal followed.

The pertinent facts are as follows: At the time of his arrest appellant was a twenty year old college student residing in Meadville, Pennsylvania. In October, 1969, a Pennsylvania State Trooper, Alan R. Phillips, received information from an agent of the Federal Narcotics Bureau that the appellant had purchased a quantity of lithium aluminum hydride which is frequently used in manufacturing the hallucinogenic drug lysergic acid diethylamide, commonly known as LSD.*fn2 Trooper Phillips then requested the postal authorities in Meadville to notify him if any packages arrived in the mail for Dembo.

On December 29, 1969, two and one-half months later, the assistant postmaster notified Trooper Phillips that a package had arrived addressed to appellant. At the request and direction of the trooper, the postal authorities opened the package, which was shipped by fourth class mail, and discovered a bamboo lamp which contained eight ounces of hashish.*fn3 Trooper Phillips

[ 451 Pa. Page 4]

    directed that the package be carefully rewrapped and delivered to the appellant the following morning. Phillips then obtained a search warrant for appellant's premises, the affidavit alleging the earlier purchase of lithium aluminum hydride and the discovery of the hashish inside the lamp. Immediately after the regular postal delivery of the package, Phillips, accompanied by a detective and a state narcotics agent, executed the warrant and confiscated the package with the hashish, an envelope containing marijuana seeds*fn4 and incriminating correspondence to appellant from an individual in India implying that drugs were to be sent to appellant.*fn5

Appellant's primary contention is that opening the package at the post office and inspecting its contents was an unconstitutional search in violation of the Fourth Amendment.*fn6 He urges that since the search warrant used to gain entry into his home was secured by the exploitation of the information obtained by this illegal search, ...


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