Commonwealth v. ClemsonCommonwealth v. Clemson
- Reporters:
- , ,
- Before:
- Watkins
Lead Opinion
Opinion by
Hoffman, J.,Aрpellant contends that evidence seized by the police pursuant to a legally sufficient search warrant should have been suppressed because the warrant was improperly exeсuted.
On August 20,1972, the Security Administrator of the Franklin Institute discovered that four antique rifles were missing from a display case. The rifles ranged in age from 120 to 150 years. On September 8, 1972, detectives from the District Attorney’s office went to the apartment of John Clemson, the appellant. Prior to approaching Clemson’s apartment, the detectives informed the manager of the apartment complex in which apрellant lived of their identity and purpose. He gave them a key to the apartment. One of the detectives knocked on the apartment door and announced “Police, we have a seаrch warrant.” The detective knocked a second time and again announced his identity and purpose. Following the second knock, the detectives waited ten seconds, and then used the passkey to gain entrance to the apartment. Upon entering, the police observed appellant’s wife emerging from one of the bedrooms and appellant’s daughter asleep on the living-rоom couch. The police identified themselves to Mrs. Clemson, showed her the warrant, and proceeded to search the apartment. The detectives discovered four antique rifles wrapрed in a gray blanket under the appellant’s bed. A jury found appellant guilty of receiving stolen goods.
It is well-established that police officers are required to give notice of their identity and purpose before attempting to enter private premises. Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).1 The fact *194that the police were in possession of a passkey and did not have to resort to physical force in order to gain entry does not make their intrusion any less “forcible.” In Sabbath v. United States, 391 U.S. 585 (1968), the Supreme Court held that the use of “force” is not an indispensable element of the federal announcement statute.2 The Pennsylvania Supreme Court has stated thаt “the constitutional standards appear to be those embodied in
There is a second well-established rule in regard to the propriety of forcible entry on the part of the police. Even where the police duly announce their idеntity and purpose, as the detectives did in the present case, forcible *195entry is “still unreasonable and hence violative of the Fourth Amendment if the occupants of the premises . . . are not first given an opportunity to surrender the premises voluntarily.” Commonwealth v. DeMichel, supra, at 561, 277 A.2d at 163. See also, United States ex rel. Ametrane v. Gable, 276 F. Supp. 555 (E.D. Pa. 1967). The issue presented in this case is reduced, therefore, to whether the ten-second delay afforded the occupants of appellant’s residence a sufficient opportunity to surrender the premises voluntarily.3
In the absence of exigent circumstances, a ten-second delay prior to entry provides an insufficient opportunity for the occupants to voluntarily surrender the premises. Our Supreme Court has observed that “a mere twenty second delay in answering the door cannot constitute support for a belief that evidence was being destroyed (or in terms of
The judgment of sentence is vacated and the case remanded for a new trial.
Notes
. The announcement requirement is waived if exigent circumstances are present. Noncompliance may be justified if the occupant is fleeing or attempting to destroy evidenсe, or if the police are virtually certain that the occupant is already aware of their purpose. See, Ker v. California, 374 U.S. 23 (1963); Miller *194v. United States, 357 U.S. 301 (1958); Commonwealth v. DeMichel, 442 Pa. 553, 277 A. 2d 159 (1971) ; Commonwealth v. Newman, supra. The mere fact that the evidence being’ sought is easily destroyed, hоwever, does not suspend the requirement. There must be some affirmative indication to support a belief that evidence is being destroyed. See, Commonwealth v. Dial, 445 Pa. 251, 285 A. 2d 125 (1971).
.
. There are no exigent circumstances in the present case. In his opinion, the trial judge states that there was no justification to believe that evidence was being destroyed. The lowеr court does state that because the police were looking for rifles, they could have concluded that their lives were endangered and thus were justified in entering the apartment. Appellant charges that this reasoning is “somewhat curious” in light of the fact that the rifles being sought were antiques. The Commonwealth’s brief responds: “Be that as it may, it is not necesary in order to uphold the order of the Court bеlow ... to find that ‘exigent circumstances’ existed. Instead, it is the Commonwealth’s position that in the instant case, the delay by the police of ten seconds before they used the key to open the doоr was completely reasonable and, under the circumstances totally in compliance with the requirements of the Fourth Amendment.”
Dissenting Opinion
Dissenting Opinion by
Price, J.:I believe the procedures followed by the police were correct under the existing case law and under the Fourth Amendment, and I must, therefore, dissent. There must be a proper balancing of the right of our citizens to be free from unreasonable searches and seizures, and the maintenance of an effective police force. I do not believe the majority maintains such a balance in this case.
I do not base my dissent on the existence of exigеnt circumstances which would permit a deviation from the usual requirements for the search of a dwelling.11 simply *197contend that the requirements of Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971), were fully complied with in the present case. See also Judge Van der Voort’S dissenting opinion in Commonwealth v. Easton, 231 Pa. Superior Ct. 398, 332 A.2d 448 (1975), in which President Judge Watkins and I joined.
The fаcts indicate that the police officers arrived at appellant’s apartment complex at approximately 11:00 a.m. with a warrant authorizing a search of the apartment. After the оfficers talked to the manager, who gave them a key to appellant’s apartment, they proceeded to the apartment, knocked on the door and announced their identity and purрose. When there was no response, they repeated the procedure. Following the second knock and announce, they waited 10 seconds and then entered by use of the key. They observed appellant’s daughter asleep on the living room couch and his wife emerging from one of the bedrooms. The police identified themselves, showed appellant’s wife the search warrant, and then searched the apartment. They found the four stolen flint lock rifles wrapped in a blanket under appellant’s bed.
I believe there are several factors in the present case which indiсate the actions of the officers were totally reasonable and correct. The police knocked on the door and announced their identity and purpose twice. Although the record fails to reveal how much time passed between the first knock and the second knock, the police waited 10 seconds after the second knock before entering the apartment. In additiоn, we are considering the propriety of entry into a four room apartment at 11:00 a.m., not entry into a multi-story house late at night. Even if the occupants had been in that part of the apartment farthest removed from the door, they still had ample time to respond to the police. I cannot believe our Supreme Court *198intended a hard and fast rule as to how much time must pass, after proper knоck and announce, before the police may enter. Each case should be decided on its own merits.
I believe the police acted properly and would affirm the judgment of sentence of the lower court.
Watkins, P.J., and Van der Voort, J., join in this dissenting opinion.
. See Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971); Commonwealth v. Johnson, 223 Pa. Superior Ct. 83, 289 *197A.2d 733 (1972); Commonwealth v. Fisher, 223 Pa. Superior Ct. 107, 296 A.2d 848 (1972); Commonwealth v. McAleese, 214 Pa. Superior Ct. 228, 252 A.2d 380 (1969).