Com. v. Eichelberger

• Decision Date: 28 April 1986
• Citation: 508 A.2d 589,352 Pa.Super. 507
• Parties: COMMONWEALTH of Pennsylvania v. Warren S. EICHELBERGER, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 589

508 A.2d 589

352 Pa.Super. 507

COMMONWEALTH of Pennsylvania v. Warren S. EICHELBERGER, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Feb. 26, 1986.

Filed April 28, 1986.

[352 Pa.Super. 509] Philip S. Cosentino, Chambersburg, for appellant.

David W. Rahauser, Chambersburg, for Commonwealth, appellee.

Before CAVANAUGH, TAMILIA and CERCONE, JJ.

CERCONE, Judge:

On August 5, 1983, Troopers Weachter, Wilson, Bopp and Marchowski obtained a warrant authorizing a search of appellant's residence. ¹ In the affidavit supporting the search warrant, no mention was made of appellant other than reference to the "Warren Eichelberger residence." The troopers staked out the residence for fifteen to twenty minutes and when an automobile arrived at the residence, the officers came onto the premises and requested the identity of the occupant of the house. Appellant identified himself and Trooper Weachter read the search warrant to him, and then escorted him inside.

Either simultaneous with, or prior to the reading of the warrant, Troopers Wilson and Bopp entered the home for the ostensible purposes of determining who was inside, to prevent the destruction of evidence, and for safety reasons. However, these troopers failed to observe the "knock and announce" rule as required by Pa.R.Crim.P. 2007(a), by entering the residence without giving or making reasonable effort to give notice of their identity, authority and purpose.

Appellant, upon entering the residence, sat down on the first chair and took off his boots. Trooper Weachter then asked him if he had any weapons on his person but did not receive any response. Weachter then told appellant to empty his pockets. Appellant took his wallet from his right rear pants pocket and a plastic bottle containing ten green pills and a small baggy containing white powder from his right front pants pocket and put the items on the kitchen table. Trooper Weachter, standing behind the appellant then inserted his hands into the appellant's rear pants pockets, found nothing, and then reached into both of the front pockets and removed two more baggies containing a white powdery substance. ² A search of the house was conducted and approximately fifty-five minutes later, it yielded about $4,300 and some suspected marijuana seeds.

Appellant was arrested and charged with violating the Controlled Substance Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 et seq. On January 26, 1984, Judge Eppinger granted the suppression of all evidence seized from appellant's residence due to the violation of the "knock and announce" rule, but refused to suppress the evidence seized from his person. A non-jury trial was held on March 6, 1984 before Judge Keller, who found appellant guilty of possession and possession with intent to deliver. Appellant's post-trial motions were denied and sentence was imposed on March 6, 1985.

In this appeal, appellant contends that the lower court erroneously refused to suppress the evidence seized from his person, as the search was unreasonable and in violation of the fourth amendment. We conclude that all evidence seized from appellant's person should have been suppressed and accordingly, we reverse and remand for a new trial.

Appellant raises three arguments to support his contention. First, that the search of appellant's pockets went beyond a limited, "Terry" type weapons search, thus constituting an unreasonable search. Second, that the troopers exceeded the scope of their search warrant which authorized only the search of the residence and not the search of appellant's person; and third, that in light of the violation of the "knock and announce" rule, all evidence seized as a result of the search should be suppressed as "fruit of the poisonous tree." Since we have decided to reverse based on the first two arguments for the reasons set forth below, we need not discuss the merits of the "knock and announce" rule argument.

I.

The Commonwealth asserts that the troopers appropriately searched appellant's pockets for security reasons. It is well settled that a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons, only if he reasonably believes or suspects that weapons are in the possession of the person he has detained. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In order to conduct a Terry search, the Commonwealth must be able to articulate specific facts from which it could be reasonably inferred that appellant is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981).

The lower court found the required reasonable suspicion based on the following findings of fact:

1. the fact that the officer testified the defendant [appellant] acted like he was angry and upset.

2. the defendant's totally inexplicable conduct in sitting down and removing his boots as soon as he entered his home and then walking toward the kitchen table.

3. the defendant's failure to respond to the trooper's inquiry whether he had any knives, guns or other weapons on his person.

4. the defendant's compliance with the trooper's direction that he empty his pockets by the placement of his wallet, a plastic bottle containing 10 pills, and a baggy containing white powder on the kitchen table.

5. the trooper's testimony that he reached into the defendant's pockets "for my own personal protection and because we had a search warrant" (N.T. 9), and "... he could have any type of weapon, razor blade, anything." (N.T. 20).

Lower court opinion at 15.

We are not convinced that the Commonwealth adequately met its burden of showing reasonable suspicion for three reasons. First, Trooper Weachter testified that he had not observed any lumps or anything suspicious on appellant's clothing that would make him believe appellant was carrying a weapon, nor could he point to anything specific which would justify such a belief. Furthermore, appellant was not asked if he had any weapons until after the search warrant was read to him and not until he was being escorted to the house. ³ This delay indicates that the troopers were not fearful for their own safety. See Commonwealth v. Gillis, 217 Pa.Superior Ct. 159, 269 A.2d 135 (1970). Lastly, we find it unlikely that a police officer with a reasonable suspicion that his detainee was armed would allow the potentially dangerous person to empty his own pockets.

Assuming arguendo, that a reasonable suspicion was aroused, the trooper would have been authorized to conduct a carefully limited search of the outer clothing of appellant in an attempt to discover weapons which may be used against him. Terry v. Ohio, supra 392 U.S. at 30, 88 S.Ct. at 1884. Instead, the trooper ordered appellant to empty his pockets, ⁴ after which, the trooper proceeded to place his own hands in appellant's pockets. "The Terry case created an exception to the requirement of probable cause, an exception whose narrow scope this Court has been careful to maintain." (emphasis supplied). Ybarra v. Illinois, supra 444 U.S. at 93-94, 100 S.Ct. at 343-45. The court below has failed to make the important distinction between a limited frisk for weapons and an actual search of one's person. Terry v. Ohio, cannot properly be so extended in light of the Supreme Court's own words that "nothing in Terry can be understood to allow a generalized cursory search for weapons or, indeed, any search whatever for anything but weapons." Ybarra v. Illinois, supra at 93-94, 100 S.Ct. at 343.

II.

The Commonwealth also asserts that the troopers acted within the scope of the search warrant when they searched appellant's pockets. It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched. Article I, Section 8, Pennsylvania Constitution; Pa.R.Crim.P. 2005(b), (c). In addition, the search may not go beyond the scope of the warrant. Commonwealth v. Searles, 450 Pa. 384, 302 A.2d 335 (1973). The search warrant presently in question authorized the search of the appellant's home and not appellant's person. The section of the warrant which requires a "specific description of the premises and/or persons to be searched" includes only a description of the home. ⁵ Nor was the appellant mentioned in the affidavit of probable cause supporting the search warrant other than by reference to the "Warren Eichelberger residence."

In contrast to what the suppression court opined, the mere mention of appellant's name as owner of the premises to be searched, does not entitle the police to search appellant's person as incident to the search of the premises. As stated in Commonwealth v. Villego, 24 D. & C.3d 736, 739 (1982), "... one cannot extend the scope of a search pursuant to a warrant to include persons who merely happen to be present. This is true even though the person may reside on the premises." (emphasis supplied). ⁶

Appellant claims and we agree, that Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981) is directly on point to the present situation. In Luddy, as in this case, the defendant was named in a search warrant as a resident of the property to be searched. The warrant, however, as in this case, "did not authorize a search of his person." Luddy, supra, 281 Pa. Superior Ct at 551, 422 A.2d at 606. When the search warrant was executed, Edmund Luddy was outside the residence (as was the appellant in the present case), working in a shed near the house to be searched when the police arrived with the search warrant. One of the officers approached Luddy and conducted a pat-down search during which he felt in the inside shirt pocket an object that he believed to be a small knife. When examined, the object proved...