Com. v. McDonel

• Decision Date: 12 December 1991
• Citation: 411 Pa.Super. 187,601 A.2d 302
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dale Thomas McDONEL, Appellant.
• Court: Pennsylvania Superior Court

Page 302

601 A.2d 302

411 Pa.Super. 187

COMMONWEALTH of Pennsylvania, Appellee, v. Dale Thomas McDONEL, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 19, 1991.

Filed Dec. 12, 1991.

Paul J. Esposito, Harrisburg, for appellant.

William T. Tully, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before POPOVICH, HUDOCK and CERCONE, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered October 31, 1990, in the Dauphin County Court of Common Pleas, following appellant's conviction on the charges of possession of marijuana with intent to deliver, possession of marijuana and possession of drug paraphernalia. On appeal, appellant contends that the Police executed a valid search warrant in a manner which violated Pa.R.Crim.P. 2007, commonly known as the "knock and announce" rule, Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Appellant also contends that the lower court abused its discretion when it sentenced him within the aggravated range of the sentencing guidelines. ¹ Having reviewed the record and the applicable law, we reverse the suppression ruling below, vacate the judgment of sentence and remand for a new trial.

The record reveals that on November 3, 1989, Officer Donald L. Brink of the Swatara Township Police Department, applied for a search warrant to seize any controlled substances and related items which might be found at appellant's residence. The warrant was issued. Later that day, Officer Brink and other members of the Dauphin County Drug Task Force searched appellant's house and, after seizing marijuana and drug paraphernalia, arrested appellant.

Appellant sought to suppress the evidence seized in the search, arguing that the manner of execution violated the "knock and announce" rule, Pa.R.Crim.P. 2007, and the Pennsylvania and United States Constitutions. However, his motion to suppress was denied, and appellant was convicted on all charges. Appellant again raised the suppression issue in his post-verdict motions but again was unsuccessful. Appellant was then sentenced to serve eleven and one-half months to twenty-three months in the Dauphin County Prison and to pay a fine of $1,000.00. A timely motion to modify sentence was filed and denied. This appeal followed.

When we review the denial of a motion to suppress, this court must:

"determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982)."

Commonwealth v. Ariondo, 397 Pa.Super. 364, 367, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

Having reviewed the record, we have determined that the factual findings as outlined by the court below are supported by the evidence. In its opinion, the lower court summarized the facts as follows:

On the day of the execution of the search warrant, Officer Brink and several other officers went to the front door of this house while several officers were detailed to the rear of this property. (N.T. 12). Trooper Laudermilch knocked on the front door two or three times. (N.T. 12). Three to five seconds elapsed between the first series of knocks and the second series of knocks. (N.T. 13). They waited another three to five seconds and after receiving no response or any indication that the occupants were intending to respond to the knocks, Trooper Laudermilch announced that the police were at the door and that they had a search warrant (N.T. 13) They waited another five to ten seconds and when they still received no response, they forcibly entered the door using a battering ram. (N.T. 13). Officer Brink testified that the knocks were loud enough so that they could be heard by someone on the first floor. (N.T. 13). Officer Brink stated that he heard no music playing when they entered the house or any other source of noise which would have prohibited the occupants from hearing the knocking and the announcement. (N.T. 22). Upon entering, the police found the defendant and his girlfriend seated at the dining room table which was located approximately fifteen to twenty feet from the front door. (N.T. 14).

Trial Court Opinion, p. 2.

We now apply the pertinent legal authority to the facts outlined above. Pa.R.Crim.P. 2007, Manner of Entry into Premises, provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice 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 enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

In Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056-1057 (1987), the Pennsylvania Supreme Court, when reviewing an alleged violation of the "knock and announce" rule, stated the following:

"Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry." Commonwealth v. Stanley, 498 Pa. 326, 334, 446 A.2d 583, 587 (1982); Rule 2007. The purpose of this "knock and announce" rule is to prevent violence and physical injury to the police and occupants to protect an occupant's privacy expectations against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry. Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986).

Exceptions to the rule have developed on the basis of the reasonableness of the police officer's conduct in particular cases, and include the following: (1) the police need not engage in a futile gesture of announcing purpose when the occupants of the premises remain silent after repeated knocking and identification, Commonwealth v. Stanley, supra; (2) the police are virtually certain that the occupants of the premises already know their purpose, Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972); (3) the police have reason to believe that an announcement prior to entry would imperil their safety, Commonwealth v. Stanley, supra; and (4) the police have reason to believe that evidence is about to be destroyed, Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975). These exceptions to the "knock and announce" rule fulfill the purpose of the rule in that entry is accomplished with a minimum of danger to officers and occupants or damage to the premises.

A similar listing of exceptions to the "knock and announce" rule was set forth in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982). Therein, our high court recognized that exigent circumstances warranting noncompliance with Pa.R.Crim.P. 2007 exist when the police in good faith believe that they or someone within the premises are in peril of bodily harm and when the officers have reason to believe that a suspect is armed or might resist arrest. Norris, 446 A.2d at 248-249.

Instantly, the Commonwealth does not contend that the officers waited a reasonable period of time after knocking and announcing their identity and purpose. Nor does the Commonwealth contend that exigent circumstances developed at the scene which would warrant forced entry. Instead, the Commonwealth asserts that the officers had a basis for assuming that the suspect within the residence was armed and might resist arrest. Such knowledge, contends the Commonwealth, created an exigent circumstance under Pa.R.Crim.P. 2007(a), which excused the officers from their duty to provide the occupants of the premises with notice of their identity and purpose prior to forcible entry. See Appellee's Brief, p. 14.

The Commonwealth bases its assertion of exigent circumstances on Officer Brink's testimony that the probability of finding firearms proximate to controlled substances was "[q]uite high." The officers also knew that in 1987, appellant was arrested and pleaded guilty on charges of possession of marijuana, possession of cocaine and possession of an unlicensed firearm. Apparently, a loaded .45 caliber handgun was found in appellant's vehicle at the time of his arrest on the 1987 drug charges. (N.T. 18). The Commonwealth contends that the officers' knowledge of appellant's two-year-old weapons violation combined with their "assumptions" that drug dealers routinely "possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia" was sufficient to create the exigent circumstances necessary to permit forced entry without first affording appellant the opportunity to surrender the premises peaceably. Appellee's brief, p. 18.

However, we must disagree with the Commonwealth and the lower court. In the recent case of Commonwealth v. Grubb, 407 Pa.Super. 78, 83-84, 595 A.2d 133, 135-136 (1991), we address an argument of the Commonwealth similar to that raised herein, stating:

The Commonwealth asserts a knock and announce entry by police would allow the suspected drug dealers the opportunity to arm themselves against police intrusion thereby imperiling the police officers' safety. They base this argument on the inherent danger armed drug dealers pose to police, as...