Commonwealth v. Easton
| Decision Date | 08 January 1975 |
| Citation | 231 Pa.Super. 398,332 A.2d 448 |
| Parties | COMMONWEALTH of Pennsylvania v. William EASTON, Appellant. |
| Court | Pennsylvania Superior Court |
David E. Auerbach, Asst. Public Defender Media, for appellant.
Vram Nedurian, Jr., Asst. Dist. Atty., Ralph D'Iorio, Media for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
In this case appellant challenges the execution of a search warrant used by police to conduct a search of his apartment. The search uncovered certain narcotic drugs for which appellant was charged with illegal possession. We find that the execution of the search warrant was improper and reverse the lower court's decision which held the search to be lawful.
The federal constitution prohibits 'unreasonable' searches by police. [1] Our Courts have considered a search 'reasonable' when it is in compliance with 18 U.S.C. § 3109 (1969) which states: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . ..' Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). Therefore, prior to making a forcible entry the officer must, absent exigent circumstances, announce his identity And purpose, and give the occupant a reasonable opportunity to surrender his privacy. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). In Commonwealth v. Newman, supra, the police banged on the door, announced their identity, but failed to state their purpose. The Pennsylvania Supreme Court held on those facts that absent exigent circumstances the police had no right to make a forcible entry after they had been refused admittance.
In the present case, the police armed with a search warrant knocked on the door of appellant's apartment, announced their identity, and requested admission. Although the purpose of their visit was obviously to execute the search warrant, they only told the occupant that they wanted to see 'Bobby.' We find that a proper announcement of purpose by the police would have been that they had a search warrant. Similar announcements were found proper in Commonwealth v. Dial, supra, and Commonwealth v. DeMichel, supra. Unless the police informed the occupant of the purpose for which they sought entry, the occupant was not required to admit them; and absent exigent circumstances, they had no right to make a forceful entry. See Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).
The Commonwealth cites Commonwealth v. Ametrane, 422 Pa. 83, 221 A.2d 296 (1966), seeking to justify the intrusion in the present case. In Ametrane the Pennsylvania Supreme Court permitted the forceful entry by police even though they failed to announce their identity or purpose before they entered. The defendant in that case, however, was granted federal relief on his habeas corpus petition by the United States district court which found that his constitutional rights had been violated. United States ex rel. Ametrane v. Gable, 276 F.Supp. 555 (E.D.Pa.1967), aff'd 401 F.2d 765 (3d Cir. 1968). The standards set forth in United States ex rel. Ametrane v. Gable, supra, were subsequently adopted by the Pennsylvania Supreme Court in Commonwealth v. Newman, supra.
Furthermore, there is no evidence that appellant already knew of the purpose of the police or that the officers believed that the destruction of evidence was being attempted. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Miller v. United States, supra. The mere lapse of time is not an exigent circumstance justifying the failure of police to follow the proper procedure. Had the safety of the police been threatened or had their senses disclosed any unusual activity leading them to reasonably believe that evidence was being destroyed or a suspect was escaping, we would not hesitate to excuse their failure to follow the proper procedure. However, the facts of this case do not show any of these 'exigent circumstances.' Instead, they show that the police failed to announce their purpose and were accordingly denied admittance by the occupant. The refusal to admit police who have improperly requested entrance cannot be considered an 'exigent circumstance.'
The evidence obtained by the search should have been suppressed as the fruit of the initial illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). [2]
Judgment reversed and new trial granted.
VAN der VOORT, J., files a dissenting opinion in which WATKINS, P.J., and PRICE, J., join.
VAN der VOORT, Judge (dissenting).
Appeal is taken to this Court from judgment of sentence rendered after jury verdict finding defendant-appellant guilty of possession with intent to deliver and possession for personal use of a controlled substance in violation of 'The Controlled Substance, Drug, Device and Cosmetic Act,' 1972, April 14, P.L. ---, No. 64, Section 13, and guilty of conspiracy to do an unlawful act in violation of 'The Penal Code,' Act of 1939, June 24, P.L. 872, Section 302.
On November 25, 1972, a warrant was executed at the residence of appellant. A door key to said residence had been obtained from the search of the occupant (not the appellant) of a car seen leaving the area, which car was later established to be the car of appellant, and this key was used for entrance into appellant's apartment following a request for admittance. Thereupon, Chester police officers found quantities of marijuana, assorted items of narcotics paraphernalia, glassine packets of suspected narcotics (heroin), and narcotics (heroin) residue. Defendant and his wife were arrested. Defendant moved to suppress evidence, which was denied following hearing on March 6, 1973. Jury trial was held April 25--26, 1973, before Honorable Edward Lawhorne, Judge. Timely motions for new trial and in arrest of judgment were filed and denied.
Appellant's first argument is that the search warrant was defective in that surveillance officers had not seen 'known drug users' enter appellant's apartment, and that informant's information was faulty. It is clear from the testimony at trial that appellant's apartment building had been under surveillance by the officers for approximately three weeks prior to his arrest, during which surveillance numerous 'known drug users' were seen entering and leaving. It is also clear that the officers conducting this surveillance could not see persons entering appellant's premises, they being located outside the building which contained four apartments of which the door to each was not visible from the outside. I recognize that a warrant can be executed only when there is a proper description of the premises and probable cause to search. Commonwealth v Muscheck, 222 Pa.Super. 348, 294 A.2d 809 (1972). While the first of these requirements is not an issue herein, I believe that probable cause would be lacking were it not for an informant's statement that he had been present in appellant's apartment and therein purchased drugs from appellant. Clearly, an outdoor surveillance would not indicate which of the four apartments in the building was being frequented by the observed 'known drug users.' The testimony at the suppression hearing indicates that the informant had been used and had proven reliable in the past. Commonwealth v. MacKay, 229 Pa.Super. 56, 59, 324 A.2d 574, 576 (1974), holds that, when basing issuance of a warrant on informant's knowledge, 'the affidavit state the underlying circumstances which caused the informant to reach his conclusion, and the underlying circumstances which led the affiant to believe that the informer is a reliable source of information (citations omitted).' We must rely on testimony from the suppression hearing for enlightenment as to relevant facts, and while the officers' testimony is not in great detail, I believe that prior dependability of the informant, and his personal knowledged of the presence of drugs at the scene, mitigates in favor of relying on his information. This, together with the surveillance leads me to conclude that affiant did have sufficient belief as to appellant's possession of controlled substances to present to an issuing magistrate, and that the independent magistrate's issuance of a search warrant was...
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