*1 рarol testimony precluded proffered cause rule, not these latter contentions. need consider Judgment affirmed. Appellant, Pennsylvania,
COMMONWEALTH DAVIS, Appellee. Kevin James Pennsylvania. Superior Court of Argued April 1991. Aug. 2,
Filed 1991. *2 Media, for Mittleman, Atty., Asst. Dist. Com. J. Joseph Chester, Lomax, appellee. P. West Thomas HOFFMAN, KELLY, JJ. POPOVICH Before POPOVICH, Judge: order of the Court appeals granting the motion County Pleas of Delaware Common Kevin Davis.1 defendant/appellee, James suppress
We reverse. “we, of as suppress,
In the a motion to reviewing grant court, the consider the evidence of only must appellate witnesses, and so much of the evidence only defendant’s by prosecution as remains uncontradicted presented by supports a When the evidence the record as whole. court, suppression may of reverse findings factual only if there is an error of law.” Commonwealth (1991) Jenkins, 1078, 1079 (Citations omitted). on present any the defendant’s failure witnesses
With behalf, his by the evidence submitted 8, 1990, on and reveals that June remains uncontradicted Police Finnegan, of the of Chester Sergeant City John with Department, application filed an for a search warrant provided application an affidavit attached. Place, 408 Pancoast
place person searched were be appellate of the 1. in its brief that the The Commonwealth avers handicap effectively its appealed substantially terminate will order prosecution claim sufficient to allow review of the defendant. This is Dugger, question. Pa. of Commonwealth v. the order in (1985). A.2d 382 dwelling in the Project, Davis, William Penn and John Kevin Davis, “Kevie-Kaz”, a/k/a respectively. sought The items seized consisted drugs, drug be paraphernalia, U.S. currenсy proof residency. the remaining portion warrant, the affiant set forth profile confidential informant to reliability as and veracity. Lastly, appeared the affidavit section the following: past 48 hrs. of the preparation
Within of this search warrant affiant listed on the face sheet of this war speak rant did confidential infor reliable [sic] mant also listed the face sheet of the warrant. This informant did advise the affiant of subject the name approx. Kevin Davis a black male yrs. age, who also has the street name “Kevie Kaz”. The informant stated that the subject ligt skinned and lives [sic ] 408 Pancoast Pl. in the Penn Project. William The infor mant also stated that the has subject selling been cocaine for quite a while and is still cociane selling [sic] area of the Wm. Penn Project. The informant stated that (Kevin Davis) he/she has observed him on several occa sions in the past selling cociane and has observed [sic] him entering the residence of 408 Pancoast PI. after he had made some sales or was going night. for the past
Within hrs. the informant stated that he/ she present the area of the Wm. Penn Project and did the subject observe Kevin Davis make 3 sales approx. individuals, approached (Davis) who either the subject approached or he them. The informant advised the affi- ant that he/she exchange (Davis) observed the between *4 and the customer. The informant past also within the going hrs. also observed the to and subject coming from 408 Pancoast PI. The informant also stated that the subject suppose gotten was to have a couple ounces of in just cociane recently. [sic] Sgt. Finnegan did check with Off. to see if Sendek he (Kevie Kaz) hаd ever heard of Kevin Davis aka he and the advised affiant that he was aware of the subject and him by (Kevie-Kaz)[.] knew the name of officer [T]he him and subject of the informants advised stated dealing in cocaine. suppose to be he was Housing Auth. the Chester was made with A check Pa. 408 Pancoast PI. Chester the residence of listings and of John in the anme Davis. is listed [sic] affi- above, the listed which Based on information correct, request and the affiant to be true ant believes search warrant. the issuance of this [sic] signed were and sealed warrant and affidavit The search for on the application and district date justice the affiant by obtained, the was search warrant made. Once each was 9, 1990, eight City 7:54 on June a.m. executed police Chester officers. approached and Officers Kaisner Maclntire particular, knocked door of the residence. Officer Maclntire
the front response, no on the When received several times door. seconds, Kaisner of a few Officer passage and with right situated to the peered through window living people room were observed door. It faced However, knock. Ten no one answered the therein. again knocked later, Maclntire fifteen seconds Officer door came “tried the doorknob ... [front] door “As open____” as a announced open, came Maclntire] [him]self [Officer entered____” words, he In other police officer, and then doing that” into door as was open stepping “was [he] residence and he had a warrant He stated search Davis. one Kevin floor second proceeded Maclntire
Officer sleeping. The defendant was the defendant found to conduct police’s presence and informed awakened com- this was premises. a search of the Once warranted ($2,709), drugs money had confiscated pleted, and a of James drug photo-I.D. paraphernalia, (marijuana), receipt/in- items of sundry other various Davis and Finnegan signed by was Officer ventory prepared, sheet A copy and Kaisner. by Officers Sendek and witnessed Thereafter, provided to the defendant. inventory *5 complaint charging was issued with defendant viola- Substance, tions of the Controlled Drug, Device and Cos- metic The defendant was arraigned, Act. was posted bail and a preliminary hearing followed which defendant was held for court on violating three counts of the Drug Act. An information filed by was the attorney for the charging Commonwealth the defendant possession with of a substance, controlled possession with intent to deliver the possession drug same and of paraphernalia.
In the defendant’s pre-trial motion to suppress, chal- lenged lacking the warrant as probable sufficient cause to “conclude whole or in part that criminal activity was Place____” taking inside the place premises 408 Pancoast and the “manner Search Warrant was exe- cuted, and the resulting illegal searches conducted were First, Fourth, violation defendant’s Fifth and Sixteenth Amendment Rights.”
A suppression hearing
place,
present-
took
was
testimony
ed by
argument
the Commonwealth and
was heard from
resulting
both sides
in the
of
grant
the defendant’s suppres-
followed,
sion
In an opinion
motion.
that
suppression
court
that
held
“the
did not
affidavit
contain sufficient facts
drugs
that
believe
would be found in defendant’s resi-
dence”, nor was the police’s execution of the warrant
law-
(a)
ful:
delay
ten
seconds
not a reasonable time for
police
officers
wait before effecting
into
forcible
private
search,
Commonwealth
premises
conducting a
Mazzella,
v.
(1974);
(b)
A.2d 784
failure
give
notice of their
identity
purpose
attempting
premises
enter private
violated defen-
before
right
dant’s Fourth Amendment
to privacy, Clemson,
234 Pa.Super.
(1975).
A
appeal was
timely
perfected by the Commonwealth
the court’s
challenging
suppression ruling
grounds
the search warrant
obtained
City
police,
Chester
execution,
as
its
comported
well as
fully
mandates
first,
federal and state
Specifically,
law.
Common-
wealth
argues
portion
affidavit
search
cause
probable
warrant
established
*6
in
residence.
found
the defendant’s
sought would be
panel
a
of this Court:
recently
As stated most
one
probable
test of
cause
jurisdiction’s
this
...
[of]
[i]s
appli-
the warrant
summoning
magistrate
approach
non-technical,
sense,
ungrudging and
in a
cation
common
end,
Supreme
To
our
Court has
manner.
this
positive
of circumstances”
adopted
“totality
more recently
See Common-
assessing probable
for
cause.
approach
509 Pa.
503 Gray,
476,
(1985).
wealth v.
a
921
As
standard essential-
result,
Pennsylvania
constitutional
Illinois v.
in
announced
reflects
the federal standard
ly
Gates, 462
2317,
(1983).
213, 103
For example, (1975), the affidavit contained information that: defendant, two females had asked the they whom selling drugs, LSD; knew to be for some they told affiant the defendant went to apartment his and re- LSD; turned few minutes later informant also *7 told that the affiant the defendant selling drugs was purchased he had some one week before the date of the warrant; and the informant the confirmed defendant’s liv- ing quarters.
The lower court Al- suppressed the seized. evidence though there sufficient was information to establish that the defendant in dealing drugs was in the living premis- described, es the affidavit was ruled to lower court have lacked sufficient to establish the on basis which the sevеral informants had concluded that the defen- gone apartment dant had to his to get drugs.
On appeal, suppression this Court affirmed the grounds evidence on the that there was: ... no indication where the took place, transaction how long took, it how long was gone, what [the defendant] girls led the to gone conclude that he had apart- to his ment.
[*] # # # # # Probable cause to believe that man has committed crime the street does not necessarily give rise to probable to cause search his suppression home. [The court stated judgе] the matter well in his memorandum opinion: “In our opinion allegation an based on as- sumption or supposition supported not is by the facts
423 activity criminal inference support to of] insufficient [an plenty there are of the fact that spite premises, in a of the individual activity relate criminal allegations premises.” lived to have alleged who 17-18, A.2d at 364. at 335 Pa.Super. 144, 149, 363 Pa.Super. Frye, v. Commonwealth cause however, (1976), probable found 1201, 1204 seized nexus the evidence “the between exist because: admis- provided by Frye’s to be searched wаs place unlawful of his part least a conducting he at sion that Commonwealth Similarly, his home.” from operations (1978), Forster, 433, 385 A.2d v. that he still buyer say seller informant overheard buyer left; the informant asked drugs when had some seller, said the seller “was buyer identity student, room 720 college was a room 720.” seller circumstances, a of this majority In these dormitory. awas mean not statement the informant’s interpreted Court sale could found but where a the seller could be only where prob- interpretation, On this immediately consummated. be shown. room 720 was cause to search able 257 Pa.Su Yucknevage, The Court banc, (1978), sitting en concluded A.2d 225 per. agent to an undercover defendant’s statement of hashish desired pounds pounds was 5 short defendant in that would remedied purchased be be night[, city from the more hashish getting “would be *8 again meet they that would agreed was and i]t thereafter] would agent] p.m. night, when undercover at 8:00 [the 23-24, Id., Ct. at Pa.Superior hashish.” buy the meeting p.m. at 4:30 at 227. initial occurred day. the same on its face sufficient concluding that the was warrant home, the Yuckne- search of the defendant’s justify
vage Court wrote: 5 pounds that he was ... statement
... [the defendant’s] agent] undercover the 13 of hashish pounds short of [the hashish on wanted, the inference that the supported] [the from a supply come person had defendant’s] house[, out of which the agent undercover had observed the defendant exit to arrive at the 4:30 p.m. meeting previously arranged for the purchase of a large quantity ... fact that the place the 8:00 p.m. hashish] [T]he meeting was not discussed is not dispositive. If two persons meet outside a certain house at 4:30 p.m., and agree 8:00, to meet again at the very fact that they do not say they where will meet аgain may suggest that it will be at the place. same
At the 4:30 meeting said he getting [the defendant] more hashish from the city night. Given the infer- ence—-just this, discussed—that when he said he already had house, some hashish in the the likelihood was that got when he more hashish from the city he would add it house, supply and then take from this enlarged supply pounds the 13 to sell undercover [the agent] at the 8:00 p.m. meeting, outside, inside, if not house.
Id., 25-26, 257 Pa.Superior Ct. at (Footnote A.2d at 228 omitted). Lastly, we have this Court’s decision in Com- monwealth v. Way,
(1985), judgment vacated the of sentence and re- versed the оrder denying the defendant’s motion to with- draw his guilty pleas for trial counsel’s failure to suppress physical evidence obtained an allegedly illegal search.
The facts fairly summarized are that the informant arranged a drug transaction by phone. The alleged transaction occurred along blue van a country road. After alleged transaction, police followed the blue van to a driveway property the corner of Douglas Dr. and Glendale Rd. The informant identified appellant as the driver of the A police blue van. source told the affiant that appellant lived at the intersection of Douglas Dr. and Glendale Rd. The affidavit did not contain suffi- cient facts to believe drugs would be found on the premises to be searched. Probablé cause to believe that a *9 necessarily give rise a crime does not man has committed home. cause to search his probable 1154. 492 A.2d at Id., Ct. at Pa.Superior so clear of cause is not presence probable Instantly, in application, the statement considering inas Frye, making drug sales that he was say not either Davis did house, recеived cocaine was “recently” or that his from his However, showing probable in home. stored his Kline, as clear Way in and at least clearer than cause is Yucknevage Forster. as in house,
First, Davis was leaving returning seen Second, he lived there. the inference supporting a fact warrant, the confi of the issuance of the 48 hours within of co Davis transact the sale informant witnessed dential evidence that This fact was direct on three occasions. caine Third, affida reading the trafficking in cocaine. Davis was fashion, hypertechnicаlity common sense devoid vit allegations contained as to the in an isolated fashion and not had “observed ... Davis therein, informant the confidential and ... selling past occasions ... on several coc[ai]ne he had Pl. the residence of 408 Pancoast entering after sales____” fact, period the 48-hour within made some warrant, the confiden of the search preceding the issuance in the drug three sales make tial informant witnessed Davis and, span, same time within the William Penn Project, coming from going to and “observed ... Davis was Pancoast PI.”
Fourth, informаnt was told the confidential lastly, couple “a obtained “just recently” Davis that had 48 hours This occurred within of cocaine”. also ounces defendant’s search the obtaining the warrant prior to home. test, and because circumstances” “totality
Under cocaine, there delivery recent illegality, value and “secreted had to be that the cocaine probability” was a “fair location; man of reasonable caution would a ‘safe’ believing [cocaine] [have] warranted] be[en] *10 being kept at Frye, supra, residencе.” 242 Pa.Su- [Davis’] 149, per. (Citations omitted). at 363 A.2d 1204 at it is obvious there While were other places where the secreted, might cocaine have been it is also true that: does require ... law not a information in warrant affidavit establish with absolute certainty that of object search will be found at the stated location, nor does it demand that the affidavit information preclude sought all that the possibility after article is not secreted another location.
Forster, Pa.Super. 437-38, 418; 253 supra, at A.2d at Frye, supra, 148, at Pa.Super. 1204; cf. A.2d Gannon, Commonwealth v. 308 Pa.Super. (1982).
Aсcordingly, hold that the- affidavit was sufficient face its to establish to probable cause believe that objects sought to be searched would be found Davis’ However, home. our task is not at an end because we next suppression must decide whether court’s determination the police violated Pa.R.Crim.P. “knock 2007’s and announce” rule substantiated the facts and by law. provides:
Rule 2007 (a) A enforcement officer executing law a search war- shall, rant give, before or make entry, reasonable effort give, to notice of identity, authority purрose his to any occupant warrant, in the premises specified unless exigent circumstances his require immediate forci- bly entry.
(b) response Such officer shall await a reasonable period time after of identity, his announcement author- ity purpose, exigent unless circumstances his require immediate entry. forcible
(c) If the officer is not after admitted such reasonable period, may premises enter forcibly and may use as much physical force to effect entry therein as is necessary to execute the search. Commоnwealth, sup- at the obligation
It was of the evi- preponderance hearing, prove, to pression dence, search or seizure satisfied that the v. Par- of Rule 2007. See Commonwealth the mandates (1990), 1331-32 sons, 273, 570 objectives underlying articulated the this Court wherein 2007; to-wit: Rule rule,” ..., 'knock and announce’
“The purpose[s] injury prevent physical violence “[are] expecta- occupant’s privacy occupants, protect unknown persons unauthorized against tion resulting damage her, prevent property and to him or *11 that even has alsо been stated from forced It entry.” identity purpose their and the announce both police where occupants if the entry impermissible forcible remains ... have not been sought entered premises of the be relinquish premises opportunity with the provided then, suffi- inquiry The critical is whether voluntarily. form a reasonable police for the elapsed cient time did not intend occupants premises of the that the belief voluntarily. premises peaceably surrender [Cita- tions omitted] our examination preceding,
In compliance Kaisnеr, accompa- John who indicates that Officer record testi- obtaining premises, into partner entry nied his subject fied on the at hand as follows: door of to the front Maclntire went Myself and Officer A Maclntire knocked at the door. residence. Officer this in the peered few seconds went [Officer Kaisner] into faced right of the door which window knock, for but Nobody responded room. living [sic] living room area walk- people could see inside ing around.
$ sjc [*] [*] [*] sH area. living in the room lady I black heavyset saw then tried the again knocked and then Officer Maclntire the door came the doorknob doorknob. When tried area, our- living room announced We entered open. officers, selves as police had with us a we] [that for one Search Warrant that residence Davis. Kevin and. As for the time that elapsed knocking between first Kaisner, into the premises, Officer cross- examination, agreed “ten, with defendant’s counsel that passed by, fifteen seconds” Officer Maclntire “[t]hen again knocked then he tried the doorknob and the ... came open____” particular, door Kaisner stated: Officеr I open, “As the door came myself announced as a officer, and then entered—then I I guess was into stepping that____” as I open doing door
In examining a claim that Rule 2007 has been violat ed, the first to consider step whether law enforcement provided officers notice to the occupants the premises to Parsons, supra. be searched.2 though Even there was no technical compliance requirement, with Rule 2007’s notice this does not ipso a finding necessitate that the evidence seized must be facto As was suppressed. Mason, noted Commonwealth v. 396, 406-07, Pa. (1985): exclusion/suppression ... is not appropri- ate remedy every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. is only fundamental, It where the violation also implicates *12 concerns, is constitutional conducted bad or faith has prejudiced the defendant substantially that exclusion may appropriate be an remedy. [Emphasis in original] bar, In the case at of our police because conclusion that the warrant, had valid search the policе would have been entitled to enter the premises and a search forcibly conduct permission with without the occupants. the See v. 517 93, 1054, Commonwealth Pa. 534 Morgan, 1056 (1987). Moreover, the entry manner and method of by the police was made without to injury persons the or property, the purpose hence 2007 in preventing Rule violence to persons damage and to property was fulfilled. Id. exigent 2. There was no evidence that circumstances existed when the police first arrived at the home. See Pa.R.Crim.P. 2007.
429 the front door knocking on Therefore, given repeated the occupants to the proximity the premises, defendant’s to the re- during the (in living adjacent) room the passage the (“knocking”) efforts and peated notification identification seconds,3 police’s we find the more than 15 a futile been would have purpose and their themselves Stanley, v. supra; Morgan, gesture. See (1982) and contrast with Com- 326, 583 Pa. 446 A.2d Chambers, v. Pa.Super. monwealth (1989). misconduct deterring police the benefits
Weighing evidence, otherwise excluding the costs of reliable against the erred in suppressing court we hold that the lower in this case. reversed; relinquished. jurisdiction Order HOFFMAN, statement. dissenting files a J. Burstin,
3. In Commonwealth (1978), police heard voices because the this Court concluded that knocked, they this proximity the door where had within close to enough door provided occupants time to have answered the the with Id., elapsed. Pa.Superior Ct. during 586-88, at which had seconds Likewise, bar, at location of the occu- 981. 393 A.2d at knocking police during repeated by the pants of the residence “reasonably long enough” to lapse of than 15 seconds was thе provide voluntarily. more premises opportunity to occupants an surrender with require police stand to Id. To hold otherwise would occupant(s) of decides to a residence idly respond await until the knocking, though police individuals can observe to even knocking. hearing of their within distance inside of a home bar, present exigent Although were no circumstances there conduct, particular light circumstances police’s of the find that them, proper not violative of Pa.R.Crim.P. 2007’s confronting provisions. announce” "knock and weighing being circumstances passage a matter of of time case, police was that the conduct of the particular we conclude repeated regard occupied efforts to proper to structure after non-acknowledgment presence give of their notice respond presence, all willingness while occupants their to their premises. This valid warrant for had a search the time the police’s entry, peaceably and which occurred justified the scenario proce- damage property. We find the injury person or without dure followed to *13 spirit proper and not violative of have been procedure. announce" Rule 2007’s “knock and 430
HOFFMAN, Judge, dissenting: First, I agree must dissent. I respectfully cannot that the information contained supports finding affidavit probable appellant’s cause search home. Specifically, I fail to see how the fact that appellant selling was seen cocaine the street forms a substantial to support basis magistrate’s that probable conclusion cause existed to believe that contrаband would be found home. appellant’s Melilli, Commonwealth v. See 405, 418-19, 521 Pa. (1989) (citation omitted). A.2d This is not a case the informant that she where said he or had seen contra- home, appellant’s band had appellant told infor- drugs mant that he had stored there. Cf Frye, (1976) (construing Aguilar-Spinelli prong two analysis affidavit hold- ing supported that facts showing probable sufficient suspect’s residence). cause to issue search warrant of In- stead, the informant stated that he or she had seen appel- selling lant cocaine and had seen him “going coming to and Furthermore, from 408 Pancoast the informant Pl[ace].” appellant entering saw his had residence made “after going night.” Thus, appellant some sales or was for the not seen entering exiting was his home as part drug transaction. majority acknowledges case, present facts here a close but maintains that because seen cocaine appellant selling “going com- home, from” ing probable his cause existed to search the However, premises. although the affidavit establishes that Place, at 408 I appellant probably resided Pancoast would find that the lack of a substantial nexus between the street appellant’s crime and the residence renders the warrant invalid. See Commonwealth v. Way, Pa.Super. 341, (1985). Thus, I agree would with trial court “failed give probable affidavit rise to drugs cause to believe that would found [appellant’s be Suppression Opinion Court at 4. home].” Second, I agree also the trial court that the evidence should suppressed have been for the reason alternative *14 home appellant’s into police officers’ manner See U.S. Const. rights. Fourth Amendment violated his time sufficient inquiry The critical whether amend. IV. could a reasonable belief form elapsed not intend to volun premises did occupants Common premises. surrender tarily peaceably Parsons, 273, 279, 1328, wealth v. Parsons, omitted). Here, unlike (1990) (citation identity, their testify they not articulated officers did entered occupants they before authority, purpose Thus, I find failed to officers dwelling. would door opening premis notice adequate before give id.; reasons, See I would 2007. For these es. Pa.R.Crim.P. trial court. the order affirm A.2d 1224 Kalenevitch, Barry
Joyce her Husband KALENEVITCH and FINGER, Appellant. Judith Superior Pennsylvania. Court 2, April
Argued 1991. Aug.
Filed 1991. Reargument 1991. Sept. Denied