Com. v. Chambers

• Decision Date: 14 July 1989
• Citation: 561 A.2d 1257,385 Pa.Super. 605
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Cheryl Benita CHAMBERS. COMMONWEALTH of Pennsylvania, Appellant, v. Robert W. CHAMBERS, Jr. COMMONWEALTH of Pennsylvania, Appellant, v. Rebecca KIRKLAND. 397 PITTS. 1988 398 PITTS. 1988 406 PITTS. 1988
• Court: Pennsylvania Superior Court

Page 1257

561 A.2d 1257

385 Pa.Super. 605

COMMONWEALTH of Pennsylvania, Appellant, v. Cheryl Benita CHAMBERS.

COMMONWEALTH of Pennsylvania, Appellant, v. Robert W. CHAMBERS, Jr.

COMMONWEALTH of Pennsylvania, Appellant, v. Rebecca KIRKLAND.

397 PITTS. 1988

398 PITTS. 1988

406 PITTS. 1988

Superior Court of Pennsylvania.

Argued Nov. 29, 1988.

Filed July 14, 1989.

Robert L. Eberhardt, Deputy Dist. Atty., and Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Michael D. Sayles, Pittsburgh, for appellee in No. 397.

Byrd R. Brown, Pittsburgh, for appellee in No. 398.

Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.

ROWLEY, Judge:

These are consolidated appeals by the Commonwealth from orders entered in each of the three above-captioned drug-related criminal cases suppressing statements of appellee Robert Chambers and contraband seized during a search of the residence of appellees, Cheryl and Robert Chambers. After thoroughly reviewing the record evidence of appellees and the uncontradicted evidence of the Commonwealth, we conclude that the evidence supports the trial court's factual findings, and that the trial court properly suppressed the evidence as a matter of law. See Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988).

The Commonwealth argues that: 1) there is no evidence to support the trial court's factual finding that the police opened the door to the Chambers house simultaneous with the announcement of their identity and purpose; 2) consequently there is no support for the trial court's legal conclusion that Pa.R.Crim.P. 2007 (the knock and announce rule) was violated; and 3) even if Rule 2007 was technically violated, the violation did not amount to a constitutional violation warranting suppression of the evidence.

The Commonwealth has the burden at a suppression hearing of proving by a preponderance of the evidence that the search or seizure of the evidence was legitimate and that the evidence therefore is admissible. Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). In the present case, the only evidence relating to the propriety of the execution of the search warrant of the Chambers' home is the following: one plain-clothes detective (Detective Frank) and one uniformed police officer (Officer Bruce), with their guns drawn, knocked on the front door of the Chambers home. According to the testimony of Detective Frank, the following then transpired:

And when Mr. Chambers opened the door, I said, "Police officers. We have a search warrant for the premises." With that--and he had the door partially opened. And I pushed the door, pushed him back, and I said, "Get up against the wall and don't [sic] move." For safety of the officers.

Suppression transcript, p. 58. Very shortly thereafter, two other plain-clothes detectives who had been at the side of the house, also came through the front door. At some later time a second, uniformed police officer, who had been standing guard at the back door, also entered the house. The only reason the guns were drawn when Detective Frank and Officer Bruce entered the house was that "When we go into any house to execute a search warrant we don't know what we are going to encounter on the other side of the door." Suppression Transcript, p. 58.

Based on the fact that the only evidence produced by the Commonwealth to establish the timing of the entry into the house, was the phrase "with that," and considering that it was the Commonwealth's burden to establish the propriety of the execution of the warrant, we find that the record supports the trial court's conclusion that the door was pushed open simultaneous with the announcement by Detective Frank of his identity and purpose. There is no evidence that any period of time transpired between the statement of identity and purpose and the pushing open of the door. More importantly, the Commonwealth failed to present any evidence to establish that appellee Robert Chambers had any opportunity to fully open the door to admit the police between the time that the identity and purpose of the police was announced, and the time when he was pushed at gun point against the wall behind him as the police pushed the door open. Thus there is ample evidence to support the trial court's conclusion that the requirement in Rule 2007, that police wait a "reasonable period of time" after announcing their identity and purpose before forcefully entering a premises to execute a warrant in the absence of exigent circumstances, was violated.

We are also unpersuaded by the Commonwealth's argument that even if there was a violation of Rule 2007, suppression of the evidence was unnecessary based upon Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987), Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986), and Commonwealth v. Balliet, 374 Pa.Super. 235, 542 A.2d 1000 (1988). Morgan, McDonnell, and Balliet are distinguishable on their facts.

In Morgan and McDonnell, the Supreme Court found that consent to the entry was given. In the present case, not only was consent not given by Robert Chambers, but there is no evidence that he had any opportunity to give his consent and voluntarily relinquish the premises, which is one of the fundamental purposes for the "knock and announce" rule. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). Moreover, in McDonnell, the Supreme Court found that not only was consent to the entry given, but no force was used in the entry. In the present case, it cannot be denied that force was used when Detective Frank "pushed the door" and "pushed [Robert Chambers] back." (Emphasis added.)

Balliet is also distinguishable from the present case because although in Balliet force was undeniably used when the locked door was kicked open, at least five minutes transpired between the initial knock on the door and announcement of the identity and purpose of those about to execute the search warrant. Additionally, in Balliet, the police attempted to make a decision as to what was appropriate under the unique facts of the particular case when no one responded to their knock and announcement of their purpose. In the present case, on the other hand, there was no evidence of any circumstances to warrant the forceful entry, and there was no evidence that the execution of the warrant was tailored to suit the particular circumstances in this case. On the contrary, Detective Frank testified that at least to the extent of the drawn guns, the method of entry used in this case to execute the search warrant was the procedure used in the execution of all search warrants. ¹

The Commonwealth also argues that even if there was a violation of Rule 2007, suppression of the evidence is not automatically warranted. While exclusion of evidence seized in violation of the knock and announce rule embodied in Rule 2007 is not always an appropriate remedy, exclusion of evidence seized in violation of the Rule may be appropriate where the violation "implicates fundamental, constitutional concerns,...