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UNITED STATES v. MCAVOY

February 23, 1981

UNITED STATES of America
v.
Dennis McAVOY and Franklin Sebetich



The opinion of the court was delivered by: MARSH

MEMORANDUM

The defendant, Franklin Sebetich, presented a motion and supplemental motion to suppress evidence seized by state police and FBI agents in violation of the Fourth and Fifth Amendments to the Constitution. An evidentiary hearing was held. The court makes the following:

 FINDINGS OF FACT

 During the night of November 19 and the early morning of November 20, 1979, three dynamite explosions occurred in the vicinity of Cokeburg Junction, Washington County, Pennsylvania. The explosions damaged a number of houses in the vicinity and damaged railroad tracks used by Conrail in interstate commerce.

 The dynamite had been stolen from a place on the property of Bethlehem Mines Corporation by prying up material on the roof. There were motorcycle tracks on the ground in the area.

 In the early morning of November 20, several Pennsylvania State Troopers and an FBI agent arrived at the scene to investigate. A resident advised them that a motorcycle had been heard in the vicinity during the time period of the explosions.

 At about 7:45 o'clock a.m., Trooper William Fleming recognized the petitioner Franklin Sebetich on a motorcycle with Dennis McAvoy.

 Trooper Fleming had an arrest warrant for Sebetich who had previously been charged with receiving stolen goods and possession of a controlled substance. Fleming knew Sebetich. Using a loud speaker, Fleming ordered Sebetich and McAvoy to stop for questioning by the state police. Instead of stopping Sebetich and McAvoy headed the motorcycle in the opposite direction. Fleming pursued them; the motorcycle fell over; McAvoy was arrested; Fleming pursued Sebetich but he escaped in the woods.

 McAvoy informed Fleming that Sebetich and his wife lived in McAvoy's mobile home. Additional patrol cars were requested to cover the area of the McAvoy home because it was suspected that Sebetich might return there and obtain a car in which to escape from the area.

 Trooper Fleming requested Trooper Mozes to check the McAvoy home and requested FBI Agent Skupien to accompany Mozes for security purposes. Upon arrival at the McAvoy home, they observed a red Chrysler car leaving. Trooper Fleming was notified and he ordered Trooper Mozes to stop the car and see if Sebetich was in the trunk.

 Trooper Mozes stopped the car which was being driven by Rose Sebetich McAvoy, a sister of Sebetich and wife of McAvoy. She was driving on the main highway in Cokeburg Junction. Mozes examined her license and registration. The car was registered in the name of John Sebetich. Mozes requested permission to open the trunk. Mrs. McAvoy refused. Mozes and Agent Skupien agreed that a search warrant should be procured for the trunk search.

 When other troopers arrived, Agent Skupien departed from the vicinity of the stopped car.

 Agent Skupien found a house where he used a telephone to make a lengthy report to FBI headquarters.

 In the meantime, Trooper Herbert Paraska went to Magistrate Stephen J. Margo in Washington, Pennsylvania, and made affidavit for a search warrant (Exhibit 3 to the hearing on Motion to Suppress held on January 8, 1981) to search for the body of ...


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