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COMMONWEALTH PENNSYLVANIA v. DAVID GREGORY WEISENTHAL AND KATHLEEN JEAN DICKELMAN (01/12/88)

decided: January 12, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID GREGORY WEISENTHAL AND KATHLEEN JEAN DICKELMAN



Appeal No. 144 E.D. Appeal Dkt. 1985 from Order of Superior Court 341 Pa. Super. 621, 491 A.2d 922 (1985), entered February 21, 1985, at No. 2001 Philadelphia 1983, Affirming Order of Court of Common Pleas of Montgomery County, Criminal Division, entered June 27, 1983, at No. 3927-82; Samuel W. Salus, II, Judge.

COUNSEL

Mary MacNeil Killinger, Chief, Appeals Div., Joseph J. Hylan, Asst. Dist. Atty., Norristown, for appellant.

Theodore Simon, Philadelphia, Francis Recchuiti, Norristown, for Weisenthal.

William J. Honig, Norristown, for Dickelman.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., and Flaherty and Zappala, JJ., would dismiss the appeal as having been improvidently granted. McDermott, J., files a dissenting opinion. Papadakos, J., files a dissenting opinion. Larsen, J., dissents.

Author: Per Curiam

[ 517 Pa. Page 242]

ORDER

The Court being evenly divided as to whether to render a decision on the merits, the appeal is hereby dismissed.

McDERMOTT, Justice, dissenting.

Since the suppression judge in this case found that the police acted without probable cause he automatically ordered the exclusion of the two bales of marijuana. Our system of jurisprudence has labored under this reactive application of the exclusionary rule since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, the United States Supreme Court has augured a significant shift in its view of the exclusionary rule as an automatic remedy for Fourth Amendment violations.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), rehearing denied 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), the Court, per Mr. Justice White, recognized that the exclusionary rule is not a constitutionally mandated remedy, and unequivocally stated that "[w]hether the exclusionary sanction is appropriately imposed in a particular case . . . is an issue separate from the question whether the Fourth Amendment right of the party

[ 517 Pa. Page 243]

    seeking to invoke the rule were violated by police conduct'." Id. 468 U.S. at 906, 104 S.Ct. at 3412, citing Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 2324, 76 L.Ed.2d 527 (1983). The Court went on to say that recent changes in the law "forcefully suggest that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment." Leon, supra 468 U.S. at 909, 104 S.Ct. at 3413, citing Illinois v. Gates, 462 U.S. at ...


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