COMMONWEALTH of Pennsylvania, Appellee, v. Dale Thomas McDONEL, Appellant.
Superior Court of Pennsylvania.
Dec. 12, 1991.
601 A.2d 302
Argued Sept. 19, 1991.
As we have conclusively established that Beattie‘s conviction for disorderly conduct cannot stand, his remaining issues are moot and we therefore will not address them.
Judgment of sentence reversed.
FORD ELLIOTT, J., concurs in the result.
William T. Tully, Asst. Dist. Atty., Harrisburg, for Com., appellee.
Before POPOVICH, HUDOCK and CERCONE, JJ.
POPOVICH, Judge:
This is an appeal from the judgment of sentence entered October 31, 1990, in the Dauphin County Court of Common Pleas, following appellant‘s conviction on the charges of possession of marijuana with intent to deliver, possession of marijuana and possession of drug paraphernalia. On appeal, appellant contends that the Police executed a valid search warrant in a manner which violated
The record reveals that on November 3, 1989, Officer Donald L. Brink of the Swatara Township Police Department, applied for a search warrant to seize any controlled substances and related items which might be found at appellant‘s residence. The warrant was issued. Later that day, Officer Brink and other members of the Dauphin County Drug Task Force searched appellant‘s house and, after seizing marijuana and drug paraphernalia, arrested appellant.
Appellant sought to suppress the evidence seized in the search, arguing that the manner of execution violated the “knock and announce” rule,
When we review the denial of a motion to suppress, this court must:
“determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution‘s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclu-
sions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).” Commonwealth v. Ariondo, 397 Pa.Super. 364, 367, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).
Having reviewed the record, we have determined that the factual findings as outlined by the court below are supported by the evidence. In its opinion, the lower court summarized the facts as follows:
On the day of the execution of the search warrant, Officer Brink and several other officers went to the front door of this house while several officers were detailed to the rear of this property. (N.T. 12). Trooper Laudermilch knocked on the front door two or three times. (N.T. 12). Three to five seconds elapsed between the first series of knocks and the second series of knocks. (N.T. 13). They waited another three to five seconds and after receiving no response or any indication that the occupants were intending to respond to the knocks, Trooper Laudermilch announced that the police were at the door and that they had a search warrant (N.T. 13) They waited another five to ten seconds and when they still received no response, they forcibly entered the door using a battering ram. (N.T. 13). Officer Brink testified that the knocks were loud enough so that they could be heard by someone on the first floor. (N.T. 13). Officer Brink stated that he heard no music playing when they entered the house or any other source of noise which would have prohibited the occupants from hearing the knocking and the announcement. (N.T. 22). Upon entering, the police found the defendant and his girlfriend seated at the dining room table which was located approximately fifteen to twenty feet from the front door. (N.T. 14).
Trial Court Opinion, p. 2.
We now apply the pertinent legal authority to the facts outlined above.
(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.
In Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056-1057 (1987), the Pennsylvania Supreme Court, when reviewing an alleged violation of the “knock and announce” rule, stated the following:
“Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry.” Commonwealth v. Stanley, 498 Pa. 326, 334, 446 A.2d 583, 587 (1982); Rule 2007. The purpose of this “knock and announce” rule is to prevent violence and physical injury to the police and occupants, to protect an occupant‘s privacy expectations against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry. Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986).
Exceptions to the rule have developed on the basis of the reasonableness of the police officer‘s conduct in particular cases, and include the following: (1) the police need not engage in a futile gesture of announcing purpose when the occupants of the premises remain silent after repeated knocking and identification, Commonwealth v. Stanley, supra; (2) the police are virtually certain that the occupants of the premises already know their purpose, Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Commonwealth v. Johnson, 223
Pa.Super. 83, 289 A.2d 733 (1972); (3) the police have reason to believe that an announcement prior to entry would imperil their safety, Commonwealth v. Stanley, supra; and (4) the police have reason to believe that evidence is about to be destroyed, Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975). These exceptions to the “knock and announce” rule fulfill the purpose of the rule in that entry is accomplished with a minimum of danger to officers and occupants or damage to the premises.
A similar listing of exceptions to the “knock and announce” rule was set forth in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982). Therein, our high court recognized that exigent circumstances warranting noncompliance with
Instantly, the Commonwealth does not contend that the officers waited a reasonable period of time after knocking and announcing their identity and purpose. Nor does the Commonwealth contend that exigent circumstances developed at the scene which would warrant forced entry. Instead, the Commonwealth asserts that the officers had a basis for assuming that the suspect within the residence was armed and might resist arrest. Such knowledge, contends the Commonwealth, created an exigent circumstance under
The Commonwealth bases its assertion of exigent circumstances on Officer Brink‘s testimony that the probability of finding firearms proximate to controlled substances was “[q]uite high.” The officers also knew that in 1987, appellant was arrested and pleaded guilty on charges of possession of marijuana, possession of cocaine and possession of
However, we must disagree with the Commonwealth and the lower court. In the recent case of Commonwealth v. Grubb, 407 Pa.Super. 78, 83-84, 595 A.2d 133, 135-136 (1991), we address an argument of the Commonwealth similar to that raised herein, stating:
The Commonwealth asserts a knock and announce entry by police would allow the suspected drug dealers the opportunity to arm themselves against police intrusion thereby imperiling the police officers’ safety. They base this argument on the inherent danger armed drug dealers pose to police, as well as the officer‘s experience in conducting drug raids. Under limited circumstances, the knock and announce rule has been disregarded where police had reason to believe announcement prior to entry would imperil their safety. See Morgan, supra; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972). However, in this case, to accept the Commonwealth‘s argument is to recognize a presumption whereby exigent circumstances sufficient to do away with the knock and announce rule would exist any time a search for drugs is conducted. We would, in effect, be taking judicial notice of the fact that drug dealers customarily carry weapons and therefore any search of a suspected dealer‘s operating base would necessarily endanger the investigating officers. We are
unwilling to create this presumption. Such a fundamental change in the knock and announce rule should not be made by judicial determination based on allegations in a particular case but must be addressed in careful and studied deliberation by the legislature. Vague allegations in a probable cause affidavit to a magistrate do little to protect the arresting officer and weaken the safeguards provided to the citizenry by the constitution. The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed. The circumstances where verified and detailed information is supplied to the magistrate regarding the existence of weaponry which would present unusual danger to the searching officer, thereby permitting authorization of a no knock entry, need not be considered here as the facts do not warrant it. (Emphasis added)
Similarly, we will not find exigent circumstances to exist based merely on a “vague allegation” that guns may be present and a weapons conviction that is two years old. Certainly, under limited circumstances, the “knock and announce” rule may be disregarded where police have reason to believe announcement prior to entry would imperil their safety. See Stanley, supra. However, the present case was not one where, as in Stanley, supra, the officers were poised to arrest an escaped convict who was recently seen with a handgun and who had previously been convicted of a murder which he committed with a firearm. In the case sub judice, all the officers knew was that appellant had pleaded guilty to possession of an unlicensed weapon some two years earlier. Certainly, such information is stale at best. Accordingly, we find that the lower court erred when it determined that exigent circumstances existed which excused the police‘s failure to give the occupants an opportunity to surrender the premises peaceably.
... exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizes. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.
See also Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991) (technical violation of Rule 2007 did not warrant suppression); compare Commonwealth v. Chambers, 385 Pa.Super. 605, 561 A.2d 1257 (1989), affirmed, 528 Pa. 558, 598 A.2d 539 (1991) (evidence suppressed due to violation of Rule 2007).
Instantly, we find that the officer‘s activity did impinge upon appellant‘s constitutional rights. The Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution prohibit unreasonable searches and seizures, and this applies to the execution of the warrant. Chambers, 598 A.2d at 540; Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Chambers, 561 A.2d at 1259. Whether the manner of execution of a search warrant is unreasonable is to be determined on a case by case basis. Id. Generally, “[t]he fourth amendment requires the police to knock and identify themselves and only if their calls are not answered within a reasonable time under the circumstances, may force then be used to enter.” Grubb, 595 A.2d at 135 (emphasis added).
In the case sub judice, only thirty seconds passed between the first knock on appellant‘s door and impact of the battering ram, and only five to ten seconds passed between the officers’ announcement of their identity and purpose
Balancing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), we conclude that the lower court erred in refusing to suppress the evidence in this case. Accordingly, we reverse the suppression ruling of the court below, and we vacate the judgment of sentence entered herein. In so doing, we are mindful that one of the prices we pay for the security which the Fourth Amendment bestows upon us is the risk that, occasionally, drug dealers will go free. See Grubb, 595 A.2d at 136; Chambers, supra; Newman, supra.
Judgment of sentence vacated and remanded for new trial. Jurisdiction relinquished.
HUDOCK, J., files a dissenting statement.
HUDOCK, Judge, dissenting:
Respectfully, I dissent. I would affirm the trial court‘s determination that exigent circumstances existed justifying
As the Commonwealth points out in its brief to this Court, if the record below supports the factual findings of the suppression court and the legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. Yerger, 333 Pa.Super. 501, 482 A.2d 984 (1984). Officer Brink testified that based upon his experience, the incidence of finding guns or armed suspects in a drug raid was “quite high“. (N.T. 17). He also had information that Appellant had been arrested approximately two years earlier in a drug raid while in possession of an unregistered, loaded handgun. Based upon these facts I believe the trial court was justified in concluding that the officer could have reasonably believed that this known and previously armed denizen of the drug world would again be armed at the time of the entry in question. Since the record supports his factual findings and legal conclusions, we should not disturb them.
The majority dismisses the Commonwealth‘s contention that the officers here could assume that drug dealers routinely possess firearms, citing Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991). I do not believe that Grubb is controlling. In that case our Court refused to take judicial notice of the fact that drug dealers carry weapons so as to, ipso facto, constitute exigent circumstances justifying non-compliance with the “knock and announce” rule. In the case presently before this Court, the Commonwealth does not ask us to take judicial notice, but rather argues that the testimony of the officer as to his personal experience with drug raids and drug dealers justified him in his belief that the defendant and his accomplices might be armed. The trial court apparently accepted this testimony, as we must.
When the actual experience of the officer was coupled with the officer‘s knowledge that this very defendant had previously possessed a loaded, unregistered firearm while engaging in his illegal activities, the officers cannot be