*1 Pеnnsylvania, Appellant, COMMONWEALTH of Lynette BEARD. Pennsylvania, Appellant, v. COMMONWEALTH of Marvin D. JONES. Superior Pennsylvania. Court
Submitted Nov. 1979. Filed Dec. *2 Johns, Attorney, Pittsburgh, District W. Assistant Charles Commonwealth, at Nos. & appellant for Carsia, at No. 1147. Pittsburgh, appellee, Bruce A. No. 1148. Jones, persona, in at apрellee, propria Marvin D. CERCONE, Judge, and MONTGOMERY President Before LIPEZ, JJ. MONTGOMERY,Judge: from an order appeal by
This is an the Commonwealth search the execution of a evidence secured suppressing suppression hearing The evidence adduced warrant.1 15, 1977, the November following facts. On reflects warrant to search the first Police obtained a Pittsburgh Boulevard. The at 6756 McPherson apartment floor Marvin appellee names of both was issued in the warrant When the arrived Beard. appellee Lynette Jones and appellate rights in the instant have vested 1. The Commonwealth’s pursuant in enunciated case to the standards Kunkel, scene, Lynette present on the Beard to be inside they knew on a apartment. tip arriving Based heroin, cut and the forestalled execution shortly package Instead, they of the search warrant. stationed themselves premises. the corner around surveillance later, Approximately up hour Jones drove one—half apartment and from vehicle. alighted his The detectives immediately approached jumped their vehicle and out. As recognized Jones reached the he porch, ran time, inside the dwelling, closing By the door.2 were right detectives behind Jones. They through burst door, closed he attempted arrested him as to flush down something packages the toilet. of heroin Several were Jones, nearby. found After arresting appellee Beard was informed of the search warrant. She was subsequently drugs arrested when parаphernalia and related were discov *3 ered in apartment. provisions of the Fourth Amendment to the
Constitution of the designed protect United States are our against citizens unreasonable searches and seizures. The warrant, issuance a making of search it lawful to conduct a search within the limits of the as facts stated on face of warrant, serves evidence reasonableness of a However, search. the presence even of a search warrant does nоt render every pursuant to such a warrant reasonable. 2007(a) provides, part,
Pa.R.Crim.P. that: law executing enforcement officer a search warrant “[a] shall give before or entry, give, make reasonable effort to notice of his and . . . identity, authority, purpose unless exigent circumstances require his immediate forcible en- try.” conflicting testimony suppression hearing
2. There was as to identity chasing whether the detectives announced their while shouted, police,” upon seeing whethеr he “It’s the them. We are sufficiently persuaded, nonetheless, identity their was either known or made known to Jones. 586 must, the officer entry, a forcible prior making circumstances, identity announce his exigent
absent
opportu
with
reasonable
providе
occupant
purpose
DeMichel,
Commonwealth v.
privacy.
to surrender his
nity
553,
(1971),
Easton,
277
v.
442 Pa.
A.2d 159
Commonwealth
398,
(1975).
448
Pa.Super.
purpose
“The
231
. .
dignity
privacy
rule
‘.
announcement
is
certain pro
amendment demand a
protected by
fourth
even
aftеr
been
priety
part
policemen
on
” Common
privacy.’
to invade an individual’s
authorized
DeMichel,
163,
561,
This announcement
right
respeсt
in which we hold
individual’s
diluted
potential
it also serves to reduce
violent
privacy, but
to guard
confrontations between officers
Common
private property.
needless destruction of
against
Duncan,
277,
(1978),
A.2d 820
Pa.Super.
wealth v.
257
390
340,
dismissed,
Duncan,
Pa.
402
apрeal
Commonwealth
(1979).
Perry,
A.2d 662
549,
Bustamante-Ga
(1978),
United States v.
denied,
mez,
(9th
1973),
cert.
416 U.S.
488 F.2d
Cir.
S.Ct.
As stated
if
exigent
waived
circumstances
only
must be
exigent
are
circumstances
deter-
present. Although
*4
basis,
on a
certain factual situations
case-by-case
mined
“knock
found to warrant a waiver of the
have been
possibility
rule.
when
is a
announce”
These include
there
the officers
of the
Common-
premises,
harm to
192,
Samuels,
Pa.Super.
(1975),
v.
wealth
235
McKeever,
35,
A.2d
229
323
44
Pa.Super.
Commonwealth
(1974);
activity
where
leads to а reasonable belief
unusual
Harper,
destroyed,
that evidence is
being
294,
(1975),
761
Ker v.
233
State
1623,
California,
23,
(1963);
726
374 U.S.
10 L.Ed.2d
S.Ct.
or where the police have valid grounds for being virtually
certain that
persons
inside
premises
to be searched
already know the identity and
pоlice.
In
case,
such a
useless gestures
police are unnecessary.
Fisher,
Commonwealth v.
In light of the above law, case our initial concern must therefore be whether the facts of the instant case qualify exigent circumstаnce, excusing the police from the need to knock and announce their identity and purpose. The lower agreed court with the Commonwealth that presence exigent circumstances in this case vitiated the need for the police to knock and announce. The fact Jones recognized the police upon so, doing fled into the residence is sufficient evidence that he knew the identity and purpose of the police. the police had valid grounds being virtually сertain that Jones had as certained their purpose and would attempt to destroy the evidence of narcotics. In circumstances, such noncompliance with the knock and announce requirement is excused for police need not make useless gestures.
The lower court nonetheless suppressed the evidence on the basis that the exigent circumstances were created by police conduct to achieve this very purpose of foregoing the knоck and announce such, rule. As actions cir- cumvented appellees’ right constitutional to be informed of the officers’ identity and purpose and to voluntarily their privacy. The lower court held the execution of the search warrant to be unlawful. We must agree.
As the lower court aptly stated the issue: crux of the matter upon centers “[t]he whether exigent circumstances, when prompted by the dilatory tactics of police in executing a search warrant .... vitiates an arrеsts, unannounced entry, and evidence seized as a re- sult thereof?” *5 warrant, a valid were in police receipt
The announcing require knocking execution of which a reason giving both their Instead of privacy. in which time to able decid police Pa.R.Crim.P. fulfilling mandate of he was surprise just him as to wait Jones and ed arrived at searched. The entering premises police to be distance parked away, a short premises, one-half hour.3 approximately which lasted surveillance involvement, Herein, prior knew Jones from police police As recognize sight. that he would them on and knew detectives, police certainly must narcotic experienced upon would run inside the house have realized of their premises jump them drive to the out seeing up vehicle. аrrest,,, right, pursuant to an had no lawful on Jones. Laurene Taliaferro testified
to chase As Officer the suppression the defense counsel at cross-examination hearing: him.” you chasing said
Q. “You were was on running. “I was. He me and started He A. seen towаy his the house.” illegal, Q. doing anything “He wasn’t was he?” “No, I didn’t him do anything.” A. observe were catch him?” Q. trying “You to “Yes.” A. what
Q. “For reason?” get were in the. house. I wanted to going get A. “We in the he ran and the door.” house and slammed probable had no cause to chase although him, to be proximity premises his immediate arrest and his from the and into the house flight searched also for their hour wait the fact 3. The officers cited as a reason half However, vicinity. that there were numerous school children convenience, argument of mere since the we must consider this an off residence detectives “took down to the ...” as soon Jones, according approach Joseph noted the Joiner. Officer constituted sufficient reason for the chasе after *6 him. police
The deliberate tactics in of the this instance result- ed in the creation of an to a forcible opportunity effectuate entry forego and to the knock and rule. announce The police’s furtive conduct in the instant casе in some may way compared to the use of which as subterfuge, ruse such court, approval has received the when only but used proper to achieve peaceful entry after announcement has been made. As we held in recently Commonwealth v. Re- gan, Pa.Super. 555, 559, (1978): ruse
“The use of to initiate execution of a warrant permissible is where it is by followed announcement of purpose by peaceful and authority entry.” (Emphasis and Added).
We G. Blakely believe that Robert importаnce clarified the of peaceful entry pursuant a search warrant when he wrote: general
“. . . the rule properly becomes not the made, announcement should be but that entry should be peaceful. Forcible becomes then the entry exception, and following analysis, the traditional the burden lies on him bring who would it into play establish the for necessity it.” Rule Entry: Announcement Unlawful Miller California, United States Kerr 112 U. of Pa.L. Rev.
We are unconvinced that
police
the
the
established
necessity
of accosting
premises.
Jones
fact,
outside of the
In
point
police
the
could have
waited until
easily
he entered the
premises before they approached.4 Then,
police
the
could
knocked
announced their
given
appellees
the opportunity to
their priva
cy
That
peacefully.
method
exactly
employed by delay
executing
4. The
court
lower
also
in
viewed the
the search
ploy
police
warrant as a
which
enabled
arrеst
make an
under
guise
serving
court, however,
the search warrant. This
does
police
not find offensive the fact
wait a
time to
reasonable
they
execute a search warrant until
are certain that
the named
present.
individuals are
Singleton,
in United States v.
(3rd
CERCONE, files a Judge, dissenting opinion. President CERCONE, Judge, dissenting: President I dissent. I with the
Although agree general majority’s restate- to the applicable ment of the law execution of search wаr- rants, I that the facts of this case show an agree cannot to skirt the knock and announce rule. attempt by may holds that the evidence in this case majority by illegal by because it was tainted method suppressed goes which the officers exеcuted the warrant. This majority too far. The believes created to enable them to enter the house exigent circumstance seize the evidence before Beard or Jones had a forcibly and By reasoning, chance to it. the same in almost destroy evi- every involving potential instance destruction of destruction, dence, prevent effort exigency requiring will have created such an the fruits of suppressed. the search to be The officers need not issuance, immediately upon executed the search warrant its is, infirmity by no constitutional created there was arrival, waiting for Jones’ imminent nor in anticipating the flight of Jones’ into possibility the house to destroy exigency evidence. The in this case was not created than it is in police any any more other case involving destruction of evidence.
I would reverse the finding suppression court.
Superior Pennsylvania. Court of
Submitted June 1980. Filed Dec.