— We have before this court defendant’s post-trial motion for a new trial. By bench trial, held September 27 and 28, 1989, defendant was convicted of possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia. Defendant timely filed a .post-trial motion averring that the trial court erred by failing to grant defendant’s motion to suppress certain evidence discovered during a search of defendant’s apartment. Said motion to suppress seized evidence was not máde until trial after the Commonwealth presented its case-in-chief without objection.
The facts pertaining to defendant’s post-trial motion are as follows. On February 9, 1989, Sgt. Michael Combs, Officer Robert Palmer, Sgt. Larry
As noted previously, defense counsel did not move to suppress evidence seized in the search conducted until the close of the Commonwealth’s case-in-chief. At the time the motion was made, the Commonwealth objected to, among other things, the untimeliness of said motion. Defense counsel argued that the motion had not been made previously because he was unaware how entry was gained until after Officer Palmer had testified at trial. The court ruled that the interests of justice required entertaining defendant’s motion at the aforementioned time. However, the court denied defendant’s motion,
Two issues are before the court for disposition. First, has defendant waived his motion to suppress because said motion was not made until after all of the evidence relating to the execution of the search warrant had been presented at trial? The Pennsylvania Rules of Criminal Procedure provide that a motion to suppress shall be made in an omnibus pretrial motion, unless the opportunity did not previously exist or the interests of justice otherwise ' require. Pa.R.Crim.P.306. If timely motion is not made, the issue of suppression of such evidence, shall be deemed to be waived. See Pa.R.Crim.P. 323(b). As stated aforesaid, this court held at trial that, in the interest of justice, defendant should be permitted in the interest of justice to present any other witness or witnesses to establish any additional facts the Commonwealth deemed necessary to justify the method of entry. The Commonwealth did not avail itself of this ruling and relied upon the established record. This court affirms its decision made at time of trial that the motion to suppress was not waived.
The remaining issue before the court is whether the actions of the police violated the “knock and announce” rule. Initially, we note that the authorization of entry given by an apartment building manager in a case such as this would not be effective against the defendant. Commonwealth v. Cerulla, 223 Pa. Super. 24, 27 n.5, 296 A.2d 858, 859 n.5 (1972), citing Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966). Absent authorization to conduct a search, police must adhere to the “knock and announce” rule of the Fourth Amendment. Rule 2007 of the Pennsylvania Rules of Criminal Procedure constitutes a codification of the “an
“(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, n.otice 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 epter the premises and may use as much physical force to effect entry therein as is necessary to execute the warrant.” Pa.R.C.P. 2007. ,
The purpose of the “knock and announce” rule is to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry. Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056 (1987). Even where the police announce both their identity and purpose, forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily.. Commonwealth v. DeMichel, 442 Pa. 553, 561, 277 A.2d 159, 163 (1971).
We first address whether entry in this case, gained by opening the door with a passkey, constitutes a forcible entry. The mere fact that police are in possession of a passkey and did not have to resort to physical force to gain entry to private premises does not make their intrusion any less “forcible.” An
Any authorization for the search intended to be granted by the apartment building on-site manager by his delivering a key to the officers is not effective against defendant to alleviate the requirement of the police officers in complying with the “knock and announce” rule. Lt. Scott Mitchell testified that once the door was unlocked, the officers opened the door and entered the apartment. No “knock and announce” was given before opening the door to the apartment. The announcement required by the “knock and announce” rule must precede an officer’s opening of a door. Commonwealth v. Golden, 277 Pa. Super.. 180, 184, 419 A.2d 721, 723 (1980). In Golden, the officers first knocked several times on the door prior to opening it also, the door was unlocked, and the Superior Court still stated that the announcement must precede the opening of a door. In this case, the officers neither knocked before opening the door nor was the door unlocked. In having the door locked, the occupants had taken steps to preserve their privacy. See Commonwealth v. Perry, 254 Pa. Super. 549, 386 A.2d 86 (1978) (holding that police may push open a door which is already partially opened for announcing identity, authority and purpose).
The “knock and announce” rule, however, is not absolute and four exceptions to the rule have devel
Instantly, the only evidence on record pertaining to the concern regarding the preservation of evidence is the testimony of Lt. Scott Mitchell. Lt. Mitchell testified that the preservation of evidence is a chief concern in making a quick entry because officers generally hear flushing of drugs down the toilet as they enter a premises. In Commonwealth v. DeMichel, supra, the Supreme Court noted that there must be more than the presumption that the evidence would be destroyed because it could easily be done. DeMichel at 563, 277 A.2d at 164. Lt. Mitchell’s concern is a general presumption regarding the destructibility of the type of evidence that was the subject of the search, which does not rise to the level of an affirmative indication that the evidence was being destroyed.
The Commonwealth argues, and we readily recognize, that courts have not fashioned an automatic rule of exclusion of evidence for violations of the “knock and announce” rule. In fact, courts have made it clear that the execution of a search warrant which violates the rules oNcriminal procedure will not automatically, require the exclusion of evidence so obtained. Commonwealth v. Balliet, 374. Pa. Super. 235, 542 A.2d 1000 (1988). Exclusions/suppression of evidence is an appropriate remedy only where the violation also implicates a fundamental, constitutional concern, is conducted in bad faith, or has substantially prejudiced the defendant. Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421
We hold that the evidence seized by the unlawful, unauthorized search must be suppressed and grant defendant’s post-trial motion for new trial. We further hold that the evidence seized by the search of the apartment shall be suppressed.
ORDER
And now, February 27, 1991, after oral argument and for the reasons expressed in the accompanying opinion, it is ordered that the post-trail motion of defendant, Edwin Vega, for a new trial is granted.
