Com. v. DeMichel

• Decision Date: 22 April 1971
• Parties: COMMONWEALTH of Pennsylvania v. Adam DeMICHEL, Appellant.
• Court: Pennsylvania Supreme Court

Page 159

277 A.2d 159

442 Pa. 553

COMMONWEALTH of Pennsylvania v. Adam DeMICHEL, Appellant.

Supreme Court of Pennsylvania.

April 22, 1971.

Rehearing Denied May 21, 1971.

Lenard H. Sigal, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Paul R. Michel, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Upon the basis of various lottery paraphernalia seized pursuant to a search warrant and introduced into evidence at trial, appellant Adam DeMichel was convicted of setting up and maintaining an illegal lottery and sentenced to undergo imprisonment for three to twelve months and to pay a fine of five hundred dollars plus costs. In this appeal from the judgment of sentence, appellant asserts that the evidence that led to his conviction was the fruit of an illegally executed search warrant. Upon reviewing the record we must agree.

Appellant was arrested on January 14, 1967, during a police search of his home at 707 Sears Street in Philadelphia. Also present at the time were appellant's wife and daughter. Upon initial entry into the house, the police observed appellant at a kitchen sink attempting to destroy rice paper, and in the course of the ensuing search they found and seized other sheets of rice paper containing several thousand lottery bets, other blank sheets of rice paper, lists of names, adding machine tape, and other lottery paraphernalia.

Prior to trial appellant filed a timely motion to suppress these items, and an evidentiary hearing was held on March 4, 1968. From testimony elicited at that hearing it appeared that five police officers armed with a search warrant arrived at the front of appellant's two story row house at 12:40 p.m. on January 14, 1967. All were dressed in plain clothes, and one of their number, Officer Daniel Creden, approached the front door alone carrying a cardboard box in an attempt to create the false impression of a deliveryman.

Corporal Frank Hall, another member of the raiding party, testified as follows concerning the execution of the search warrant:

'Q. Did * * * (appellant) admit you to the premises?

'A. No. We had to gain entrance.

'Q. How?

'A. We broke the door down.

'Q. With or without prior warning?

'A. With.

'Q. What type of warning did you give to the occupants of the house before breaking in the door?

'A. I told him we were police officers, we had a warrant.

'Q. How much time elapsed between the time you said that and when you broke in the door, approximately?

'A. Approximately ten or fifteen seconds.'

Upon cross-examination by appellant's counsel, Hall restated his version of the entry into the house but did not reaffirm that he Personally gave any warnings to the occupants. ¹

At the conclusion of the hearing, appellant's counsel argued that the affidavit supporting the issuance of the search warrant was defective and that the police's method of entry into appellant's home was illegal. The hearing judge was unpersuaded and the motion for suppression denied. ²

Appellant thereafter waived a jury, and his case proceeded to trial on May 16, 1968, before a different judge of the Philadelphia Court of Common Pleas. During the Commonwealth's case in chief, new and different evidence came to light concerning the execution of the search warrant. Corporal Hall again described the events surrounding the police's entry into appellant's house but failed to mention that he had given any warnings to the occupants, and Officer Creden, the policeman who actually knocked on appellant's door, gave the following testimony:

'Q. Now, sir, would you relate to the Court specifically in detail what occurred from the time you arrived at these premises until the time entry was made?

'A. Well, I guess we arrived around 12:40 p.m., I walked west on Sears Street, at 7th Street, I went up and knocked on the door. A few seconds, the blind was lifted up, and I announced that we were police. The blinds dropped, and we proceeded to knock the door down.

'Q. Within what period of time, sir?

'A. From the time that the blinds were dropped?

'Q. Yes, sir.

'A. Ten, five, I don't know how many seconds.

'Q. Seconds, sir?

'A. Well, as soon as the blinds dropped, I called the fellow officer who had the sledge hammer and knocked the door down.'

'Q. Just to make the record perfectly clear, when you first knocked, you did not say anything at all, did you?

'A. No. I just knocked.

'Q. And then, according to your testimony, someone lifted up the blinds?

'A. Yes, sir.

'Q. Could you tell whether that was male or female, sir?

'A. I couldn't tell. I believe there were curtains behind the blinds. I couldn't see who it was.

'Q. Then the blinds dropped, sir, is that correct?

'A. That is correct.

'Q. And then you made an announcement that you were police officers, is that correct, sir?

'A. No, it is not. While the blinds were up, I said, 'Open up, it is the police.'

'Q. And that is all you said, sir?

'A. Yes.' (Emphasis added.)

Appellant was adjudged guilty, but the trial judge granted his post trial motion in arrest of judgment on the ground that the evidence at trial demonstrated that the officers who executed the search warrant had not announced their purpose before resorting to forcible entry. The Superior Court, reasoning that a trial judge has no power to overrule the decision of a supression hearing judge, reversed the order granting arrest of judgment and remanded the case for sentencing, 214 Pa.Super. 392, 257 A.2d 608. Following the imposition of sentence, appellant again appealed to the Superior Court. That court affirmed the judgment of sentence, 216 Pa.Super. 804, 263 A.2d 480, and we granted allocatur.

Preliminarily we note our disagreement with the Superior Court's apparent categorical holding that a trial judge is powerless to overrule the decision of a suppression hearing judge. While '(w)e impliedly held in Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965) that the trial judge cannot reverse On the same record at trial the decision made after the pretrial suppression hearing * * *,' Commonwealth v. Washington, 428 Pa. 131, 133 n. 2, 236 A.2d 772, 773 n. 2 (1968) (emphasis added), the same does not hold true when the trial judge's different ruling is based upon new and different evidence. When information comes to light after the suppression hearing clearly demonstrating that the evidence sought to be introduced by the Commonwealth is constitutionally tainted, no consideration of justice or interest of sound judicial administration would be furthered by prohibiting the trial judge from ruling it inadmissible. Although a favorable ruling at the suppression hearing relieves the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained, the trial judge must exclude evidence previously held admissible at the suppression hearing when the defendant proves by a preponderance of new evidence at trial that the evidence sought to be introduced by the Commonwealth was obtained by unconstitutional means. ³

Although we thus disagree with the Superior Court, we believe that the trial judge in the instant case erred in granting appellant's motion in arrest of judgment upon the basis of a finding that the police officers executing the search warrant did not properly announce their purpose before entering appellant's house. Officer Creden testified unequivocally at trial that He had made no announcement of purpose, but he did not state that his fellow officers were similarly mute or contradict Corporal Hall's suppression hearing testimony that Hall had made such an announcement of purpose. That being so, the record at trial in no way proves the absence of a proper police announcement of purpose.

Despite the foregoing, we are nevertheless persuaded for other reasons that the search of appellant's home was illegally executed. It is settled in this Commonwealth that the Fourth Amendment prohibition against unreasonable searches and seizures demands that before a police officer enters upon private premises to conduct a search or to make an arrest he must, absent exigentcircumstances, give notice of his identity and announce his purpose. Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); United States ex rel. Manduchi v. Tracy, 350 F.2d 658 (3d Cir.), cert. denied, 382 U.S. 943, 86 S.Ct. 390, 15 L.Ed.2d 353 (1965); United States ex rel. Ametrane v. Gable, 276 F.Supp. 555 (E.D.Pa.1967). The purpose of this announcement rule is that '* * * the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to invade an individual's privacy. Regardless of how great the probable cause to believe a man guilty of a crime, He must be given a reasonable opportunity to surrender his privacy voluntarily.' United States ex rel. Ametrane v. Gable, supra, 276 F.Supp. at 559 (emphasis added). Accordingly, even where the police duly announce their identity and purpose, forcible entry is still unreasonable and hence violative of the Fourth Amendment if the occupants of the premises sought to be entered and searched are not first given an opportunity to surrender the premises voluntarily. See United States ex rel. Manduchi v. Tracy, supra, 350 F.2d at 662.

The Commonwealth appears to concede this proposition of constitutional law but argues that the occupants of appellant's house were in fact given an adequate opportunity to open the door voluntarily. Corporal Hall and Officer Creden testified that they and the other officers began to break down the front door of appellant's house five to fifteen seconds after announcing their presence and purpose. We cannot deem this a reasonably sufficient period of time. In Newman, supra, for example, this Court stated that 'a mere twenty second delay...