PA. COURT TOSSES OUT APPEAL IN DRUG CASE

Appeal: Drug Case Tossed Out

The state Superior Court this week threw out an appeal of a key ruling in a
major drug case filed by the Lancaster County district attorney's office
because the prosecutor failed to submit legal paperwork on time.

In a ruling filed May 25, the appellate court, without opinion, dismissed
the prosecution's appeal. The district attorney's office had appealed a
Lancaster County judge's ruling in the case against 45-year-old Kenneth Ray
Potter of Fulton Township, District Attorney Joseph Madenspacher said Thursday.

In January, Judge D. Richard Eckman ruled that the initial searches of
Potter's home by state police on Sept. 25, 1997, were illegal. In all,
police seized an estimated $800,000 worth of marijuana from the Potter home
and a nearby field.

Prosecutors hoped to win a reversal of Eckman's ruling, but then-Assistant
District Attorney Mary McDaniel failed to file a legal brief outlining the
prosecution's argument. She has since left the district attorney's office.

A disappointed Madenspacher said his office will make a motion to reinstate
the appeal today.

Potter's defense attorney, J. Richard Gray, declined to comment, saying he
had not yet seen the appellate court's decision.

In the first search of the Potter house, located at 2551 Robert Fulton
Highway, Cpl. Greg Riek told Potter he was searching for "large quantities"
of marijuana and was not concerned with small amounts of the drug, according
to court testimony cited in Eckman's opinion.

Riek, accompanied by Potter, found six marijuana plants lying on the floor
of the home's attic. Potter and his wife, Angela, 33, were led outside and
then placed under arrest while Riek entered the house again and seized the
plants, containing about 7 grams of marijuana.

Eckman ruled that police acted unconstitutionally when they made a
"warrantless seizure" of that marijuana. Earlier court decisions state that
police must have "consent, exigent circumstances or a warrant" to make such
a seizure, Eckman wrote. Though Potter allowed Riek into his home at first,
he did not consent to the search in which the six plants were taken.

Potter's son, Allen Potter, 26, who was living at the house, was also
arrested. All three defendants were charged with numerous felony and
misdemeanor drug offenses.

Eckman's ruling essentially destroyed the prosecution's case. Without the
first seizure, police would have been unable obtain a warrant and conduct
another search of the house in which they confiscated about 15 pounds of
cultivated marijuana, a weighing scale and other drug paraphernalia.

And without those seizures, there is little evidence connecting the Potters
to a nearby Amish farmer's field in which 211 marijuana plants, some 8 feet
tall, were found, Madenspacher said in January.

At Kenneth Potter's preliminary hearing, Riek said about $35,000 worth of
the marijuana had been packaged for sale. He said troopers found several
boxes of Ziploc bags and an "elaborate" plant-drying room in the home's attic.

Police were initially tipped off to the marijuana plants by a Maryland state
police helicopter crew that spotted the crop while flying over the area.
After being notified of the discovery, local officers went to the field.
They then followed tire tracks from the area to the Potters' house.

Attorneys for the other two defendants made similar illegal search arguments
for their clients. The status of those cases could not be immediately
determined Thursday night.