Com. v. Conn

• Decision Date: 09 September 1988
• Citation: 377 Pa.Super. 442,547 A.2d 768
• Parties: COMMONWEALTH of Pennsylvania v. Stephen Allen CONN, Appellant.
• Court: Pennsylvania Superior Court

Page 768

547 A.2d 768

377 Pa.Super. 442

COMMONWEALTH of Pennsylvania v. Stephen Allen CONN, Appellant.

Superior Court of Pennsylvania.

Argued June 14, 1988.

Filed Sept. 9, 1988.

John R. Gailey, Jr., York, for appellant.

Mark A. Bellavia, Asst. Dist. Atty., York, for Com., appellee.

Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.

WIEAND, Judge:

Stephen Allen Conn was tried nonjury and was found guilty of possession of a controlled substance with intent to deliver. ¹ Post-trial motions were denied, and Conn was sentenced to serve a term of imprisonment for not less than eight months nor more than twenty months. On direct appeal, he argues that evidence obtained as a result of a warrantless entry of his home by police should have been suppressed. It should have been suppressed, he argues, because there were not exigent circumstances sufficient to excuse the police from obtaining a warrant and because the police failed to comply with the "knock and announce" rule before entering. Because we conclude that Conn's Fourth Amendment right to be free from unreasonable searches and seizures was violated in this case, we reverse and remand for a new trial.

On November 27, 1985, Troopers Lokhaiser and Daryman were engaged in the surveillance of a vehicle owned by Adalberto and Gloria Rodriguez, which had been parked outside appellant's trailer-home in Jackson Township, York County. The State Police had been given information by two confidential informants that the Rodriguezes would be delivering drugs to appellant's residence. While the Rodriguezes were inside appellant's home, Trooper Daryman went to the nearby office of a district justice in order to meet with and to obtain the assistance of local police. At the district justice's office, Sergeant Brown, of the Jackson Township Police Department, told Trooper Daryman that on a visit to appellant's home about a year earlier, he had observed a police scanner in the living room. Thereafter, Trooper Daryman and Sergeant Brown returned to the location of appellant's home and joined Trooper Lokhaiser in the continuing surveillance of appellant's residence. When the Rodriguezes departed, the three policemen followed. After the Rodriguez vehicle had travelled about a mile and a half, it was stopped and searched. Police found in the vehicle a quantity of cocaine and cash in the amount of fifteen hundred ($1,500) dollars. At this point, Sergeant Brown suggested to Lokhaiser for the first time the possibility that appellant had a police scanner in his home. Fearing that appellant might have intercepted police radio transmissions which contained information about the stopping of the Rodriguez vehicle and would attempt to destroy other contraband, the police proceeded immediately to appellant's residence. There they knocked on the door, announced their presence, and immediately entered through an unlocked door without waiting for a response to their knock. Once inside, the police observed appellant in the process of cutting and bagging cocaine. Appellant was arrested immediately and advised of his Miranda rights. A search warrant was thereafter obtained from the district justice. Appellant, faced with the search of his home, waived his rights and told the police that he had purchased an ounce of cocaine from the Rodriguezes, from whom he had been buying drugs for several months.

A pre-trial motion to suppress the evidence seized by the police was heard and denied; and the evidence was used by the Commonwealth at appellant's trial.

The law with respect to warrantless searches and seizures has been stated by this Court as follows:

"as a general rule a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 29 L.Ed.2d 564." Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101 (1978). However, the realities and practicalities of law enforcement dictate that where exigent circumstances exist, the warrant requirement is excused. United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); Holzer, supra. Exigent circumstances arise where the need for prompt police action is imperative, either because evidence is likely to be destroyed, id., or because there exists a threat of physical harm to police officers or other innocent individuals. Velasquez, supra.

Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983). See also: Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d 381 (1968); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986). It is clear, however, that rules governing police action without a warrant will be narrowly interpreted in cases involving a person's home. In this regard, the United States Supreme Court has said:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms.... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639, 653 (1980), quoted in United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980). Cf. Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977) ("Upon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society."); Commonwealth v. Schaeffer, 370 Pa.Super. 179, 209, 536 A.2d 354, 369 (1987) (same).

Terms like "exigent circumstances" or "urgent need" are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the warrantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as "unreasonable."

Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392 (1970) (en banc). See: Commonwealth v. Williams, 483 Pa. 293, 298, 396 A.2d 1177, 1179 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). See also: United States v. Blasco, 702 F.2d 1315, 1325 (11th Cir.1983), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983) (exigent circumstances exist where societal costs, such as danger to police or risk that evidence will be destroyed, outweigh reasons for prior recourse to a magistrate); United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.1978), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), overruled on other grounds, United States v. McConney, 728 F.2d 1195 (9th Cir.1984) ("The term 'exigent circumstances' ... refers to a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action."). "All decisions made pursuant to the exigent circumstances exception [to the warrant requirement] must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances." Commonwealth v. Daniels, 280 Pa.Super. 278, 286, 421 A.2d 721, 725 (1980). This Court has further said that:

[a]n inquiry to determine whether exigent circumstances exist involves a balancing of the individual's right to be free from unreasonable intrusions against the interest of society in investigating crime quickly and adequately and preventing the disappearance of evidence necessary to convict criminals. United States v. Rubin, 474 F.2d 262 (3rd Cir.1973), cert. denied 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); United States v. Hayes, 518 F.2d 675 (6th Cir.1975). It requires an examination of all of the surrounding circumstances in a particular case, Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968). These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized. Rubin, at 268.

Commonwealth v. Hinkson, supra, 315 Pa.Super. at 27-28, 461 A.2d at 618.

"[T]he possibility that evidence will be destroyed by defendants who have discovered government surveillance of their activities often has been recognized as a sufficient exigency to justify warrantless entry." United States v. Edwards, 602 F.2d 458, 468 (1st Cir.1979). Cf. United States v. Guidry, 534 F.2d 1220 (6th Cir.1976) (exigent circumstances established where totality of circumstances disclosed that efforts to destroy evidence were in progress); United States v. Blake, 484 F.2d 50 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974) (exigent circumstances exist where totality of circumstances reveal an imminent threat of destruction of evidence). The United States Court of Appeals for the Third Circuit, in United States v. Rubin, 474 F.2d 262 (3d Cir.1973), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973), formulated the following test to determine when a law enforcement officer's belief that evidence might be destroyed rises to the level of exigent circumstances:

When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized....