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COMMONWEALTH v. DEWITT AND SELLMAN (12/11/73)

decided: December 11, 1973.

COMMONWEALTH, APPELLANT,
v.
DEWITT AND SELLMAN



Appeal from order of Court of Common Pleas of Delaware County, Dec. T., 1971, Nos. 219 and 220, in case of Commonwealth of Pennsylvania v. Robert DeWitt and Jeffrey K. Sellman.

COUNSEL

Ralph B. D'Iorio, Assistant District Attorney, with him William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.

John M. Gallagher, Jr., with him Alexander A. DiSanti, and Richard, DiSanti & Hamilton, for appellees.

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

Author: Spaeth

[ 226 Pa. Super. Page 373]

This is an appeal by the Commonwealth from a pretrial order suppressing evidence.

[ 226 Pa. Super. Page 374]

In the motion to suppress, appellees stated certain facts that appellant in its answer admitted to be true. These facts and the testimony presented at the hearing on the motion may be summarized as follows: On July 26, 1971, a package mailed from Morocco and addressed to one J. Sellman, at 1108 Ormond Avenue, Drexel Hill, Pennsylvania, was given a customs examination in the Port of New York by personnel of the United States Treasury Department, Bureau of Customs. The package contained a table with a false top, under which three pounds of hashish were discovered. The package was delivered to the post office at 30th Street, Philadelphia. There another customs agent, who had been informed by the New York authorities that the package contained narcotics, removed the hashish, treated it with fluorescent grease, replaced it under the false table top, and rewrapped the package. A search and seizure warrant was obtained, and the package was delivered to the Sellman residence. About half an hour after delivery, the police, pursuant to the warrant and accompanied by the customs agent, entered the residence. Defendants were inside. The agent "passed an ultraviolet light over the hands" of defendants. The light "indicat[ed] . . . that they had handled the pretreated hashish. . . ." The police, however, did not find the hashish until six hours later, when a police dog was brought to sniff it out. When the hashish was found, defendants were arrested.

On defendants' motion to suppress, the hearing judge held that the search and seizure warrant had been properly issued and executed. These conclusions are supported by the record and by the authorities cited in the judge's opinion. The judge also held that the evidence that there was grease on defendants' hands had to be suppressed and that the hashish could not be offered in evidence against defendant Robert DeWitt.

[ 226 Pa. Super. Page 375]

In the motion to suppress, appellees challenged the New York customs search, which first revealed the hashish. The hearing judge made no explicit finding on this issue but did state that the package moved as bulk mail. After the judge's opinion was issued, the Pennsylvania Supreme Court handed down Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973), which held that fourth class mail, such as the package involved in this case, is not exempt from the requirements of the Fourth Amendment. Appellees argue that Dembo destroys the legality of the New York customs search. The New York search, however, was proper on another basis.

One of several statutes authorizing customs examinations is 19 U.S.C. ยง 482 (1970), which reads as follows: "Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandize on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether ...


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