Com. v. Rispo

• Decision Date: 25 January 1985
• Citation: 338 Pa.Super. 225,487 A.2d 937
• Parties: COMMONWEALTH of Pennsylvania v. Thomas Allen RISPO, Appellant.
• Court: Pennsylvania Superior Court

Page 937

487 A.2d 937

338 Pa.Super. 225

COMMONWEALTH of Pennsylvania v. Thomas Allen RISPO, Appellant.

Superior Court of Pennsylvania.

Argued May 22, 1984.

Filed Jan. 25, 1985.

Richard P. Abraham, Philadelphia, for appellant.

Seth Weber, Asst. Dist. Atty., Doylestown, for Commonwealth, appellee.

Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant contends that the lower court should have suppressed the evidence seized when law officers, without a warrant, entered his home to retrieve certain property and arrested him. We agree and, accordingly, vacate the judgment of sentence, and remand for a new trial.

On September 5, 1980, appellant was arrested in his home located at 1130 Tennis Avenue in Bensalem Township. He was subsequently charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and conspiracy to possess, possess with intent to deliver, and deliver a controlled substance. On March 16, 1981, appellant's motion to suppress evidence was heard and denied. Jury trial commenced the next day and, on March 20, appellant was convicted of conspiracy but acquitted on the remaining charges. Appellant's post-verdict motions alleged, inter alia, that certain evidence seized in the illegal search and seizure should have been suppressed. Appellant, represented by new counsel, also filed a supplemental motion raising the issue of trial counsel's ineffectiveness. On December 3, 1981, the lower court en banc denied the post-verdict motions. After several hearings, the lower court, per Judge Biehn, denied the ineffectiveness motion on November 8, 1982. Appellant was then sentenced on December 9, 1982, to four-to-twenty-three months imprisonment. This appeal followed.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant's rights. The burden of proving the admissibility of the evidence lies on the Commonwealth's shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence.... On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court's findings of fact.

....

In considering whether the record supports the court's finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. ... In addition, where the suppression court's findings are amply supported by the record they may not be disturbed on appeal. ... Finally, in deciding whether Fourth Amendment dictates have been abridged, we must consider all of the circumstances of the official intrusion, keeping firmly in mind that the ultimate goal of the Amendment is not the protection of preferred locales, but the protection of individuals and their legitimate expectations of privacy....

Commonwealth v. Eliff, 300 Pa.Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted).

So viewed, the facts are as follows: On September 5, 1980, at approximately 2:30 p.m., Jimmy Baker, a paid police informant, went to the Lower Moreland Police Station to meet two narcotics agents from the Bureau of Drug Control of the Pennsylvania Attorney General's Office and other police officers. Baker was then fitted with a body wire, given $11,000 in marked currency (the serial numbers of the bills had been previously recorded by the agents), and placed under electronic surveillance from a police van. At approximately 4 p.m., Baker left the station for a prearranged meeting with Gary Christopher, a hairdresser, at the Cosmic Hair Studio located on Bustleton Avenue in the Northeast section of Philadelphia, in order to purchase one pound of methamphetamine. Agents Randolph Bordeleau and William Miller followed in the police van while Agent Steven Richardson followed in a separate vehicle. Baker arrived at the hair salon at about 4:45 p.m., showed the money to Christopher, and negotiated the drug transaction. Christopher told Baker that he would have to make a call for the drugs. After making two telephone calls, Christopher informed Baker that only seven ounces of methamphetamine were available, that the price was $7,500, and that they would have to go and get the drugs. At approximately 6:30 p.m., Baker and Christopher left the hair salon and drove on Woodhaven Road to Bensalem Township. The police followed. At 7 p.m., they stopped near appellant's home at 1130 Tennis Avenue. Baker gave $7,500 to Christopher, and Christopher entered a side door of the residence. After three or four minutes, Christopher returned to the car carrying a brown paper bag. Baker, looking in the bag, saw and smelled methamphetamine. They then drove off but were stopped approximately one-half mile away by law enforcement officers. Agents Richardson and Miller found seven ounces of methamphetamine and $3,500 cash in a bag on the front seat of the car. They wanted to retrieve the rest of the money so Baker told them which door of appellant's residence Christopher had entered and exited from. Agent Bordeleau, followed by Agent Richardson, approached the side door of appellant's home at a fast pace with a gun in one hand and displaying his official identification badge in his other hand. When he came within five feet of the door, it was opened by appellant's ten-year-old daughter. At this time, Agent Bordeleau raised his badge, loudly announced, "Police," and then observed appellant "dart from view." Agent Bordeleau immediately entered the house through the side door (into the kitchen) and proceeded in the direction appellant had gone (into the living room). As Agent Bordeleau entered the living room, he saw appellant about to sit down in a chair. He also saw a black briefcase on an ottoman located less than one foot from appellant. Agent Bordeleau stated, "Police, where's our money?" Appellant opened the briefcase, and Agent Bordeleau observed a large amount of cash sitting on top of the contents inside. The serial numbers of the bills contained in the briefcase matched the numbers on the bills given to Baker earlier that day. Appellant was then formally placed under arrest. The briefcase and its contents, including the $6,300 ¹ in marked bills found therein, were seized.

Appellant asserts that his Fourth Amendment rights were violated when the agents, with guns drawn, entered his home without a search or arrest warrant. The Commonwealth, however, argues that exigent circumstances justified the police conduct. "The Fourth Amendment to the Constitution of the United States 'protects the people from unreasonable government instrusions into their legitimate expectations of privacy.' " Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978); Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977). With few exceptions, the Fourth Amendment requires that law officers obtain a warrant issued by a neutral magistrate before they intrude into a place of privacy. Commonwealth v. Morrison, 275 Pa.Superior Ct. 454, 457, 418 A.2d 1378 (1980) (en banc ); Commonwealth v. Gambit, 274 Pa.Superior Ct. 571, 578, 418 A.2d 554, 557 (1980), aff'd per curiam 501 Pa. 453, 462 A.2d 211 (1980); Commonwealth v. Montgomery, 246 Pa. Superior Ct. 371, 375, 371 A.2d 885, 887 (en banc ). "As a general rule, a search and seizure without a warrant is deemed unreasonable for constitutional purposes." Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. Hinkson, 315 Pa.Superior Ct. 23, 27, 461 A.2d 616, 618 (1983). Furthermore, "The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. ... As a result, warrantless searches and seizures inside a home are presumptively unreasonable." Commonwealth v. Henkle, 306 Pa.Superior Ct. 346, 352, 452 A.2d 759, 761 (1982). However, warrantless searches and seizures are excused where exigent circumstances exist. Commonwealth v. Montgomery, supra at 376, 371 A.2d at 888. Such circumstances arise "where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons." Commonwealth v. Holzer, supra, 480 Pa. at 102, 389 A.2d at 106; Commonwealth v. Hinkson, supra, 315 Pa.Superior Ct. at 27, 461 A.2d at 618.

An 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.... It requires an examination of all of the surrounding circumstances in a particular case, .... These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized.

Commonwealth v. Hinkson, supra at 27, 461 A.2d at 618 (citations omitted). Accord, Commonwealth v. Eliff, supra at 438-39, 446 A.2d at 934-35. "[T]he burden is upon the Commonwealth to prove by a preponderance of the evidence that a search and seizure did not violate the fourth amendment." Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94. Accord, Commonwealth v. Timko, 491 Pa. 32, 39, 417 A.2d 620, 623 (1980); Commonwealth...