Commonwealth v. Norris

• Decision Date: 01 June 1982
• Citation: 498 Pa. 308,446 A.2d 246
• Parties: COMMONWEALTH of Pennsylvania, v. Clarence A. NORRIS, Sr., Appellant.
• Court: Pennsylvania Supreme Court

446 A.2d 246

498 Pa. 308

COMMONWEALTH of Pennsylvania, v. Clarence A. NORRIS, Sr., Appellant.

Supreme Court of Pennsylvania.

June 1, 1982

Submitted Jan. 21, 1982.

John W. Packel, Chief, Appeals Div., Leonard Sosnov Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Marianne Cox, Asst. Dist Attys., for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

HUTCHINSON Justice.

A jury convicted appellant of rape, statutory rape, kidnapping, corruption of a minor and possession of an instrument of crime in a related series of occurrences involving a twelve year old girl.

The Superior Court affirmed his judgments of sentence. We granted review on a petition questioning the presence of exigent circumstances to justify a warrantless arrest on forcible entry into defendant's apartment and alleging reversible error in the refusal to suppress a knife in plain view and a gun found under a mattress in a search incident to the arrest.

Upon such review we find both the arrest without a warrant and the forcible entry were justified under the law then in effect, ^[1] that the suppression court had before it evidence from which it could and did infer the knife was in plain view and that the admission of the gun, though improper, was harmless error because it had a de minimis prejudicial effect on defendant. We therefore affirm.

At the time the police made the warrantless arrest, they had been refused entry to an apartment a lady across the hall had told them was occupied by Clarence Norris and his brother. It had the same number as the apartment the victim had told them she was forcibly taken to at knifepoint. The victim also told the police that her assailant had been called Clarence by a person in the building and the building itself matched her description.

She had given this description to police in an interview the evening of the crime, shortly after she had become hysterical and hung up after appellant had called her at home. The appellant had informed her he would wait for her at school the next day and had threatened her for the second time with harm if she reported the rape.

Appellant argues that the forcible entry by the police into his apartment, after an announcement of authority but without an express announcement of purpose, was unlawful.

This contention is devoid of merit. It is well-established that "[a]n announcement of both authority and purpose is required before a door can be broken down, absent exigent circumstances." Commonwealth v. Newman, 429 Pa. 441, 444, 240 A.2d 795, 797 (1968). In this case, the police arrived at appellant's door around midnight and noticed that the apartment was lighted and that loud music could be heard coming from inside. The police knocked, identified themselves, and, receiving no response, called headquarters and waited twenty minutes for a back-up unit to arrive before forcibly entering the apartment. It is undisputed, however, that there was no announcement of purpose.

We are satisfied in this case that the officers' partial noncompliance with the "knock and announce" requirement was justified by the presence of exigent circumstances. We recognize that only a limited number of circumstances can be considered to excuse compliance with this Fourth Amendment protection. ^[2] Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); United States v. Wylie, 462 F.2d 1178, 1186 n. 53 (D.C.Cir.1972); Commonwealth v. Beard, 282 Pa.Super. 583, 423 A.2d 398 (1980). These are (1) "when the officers may in good faith believe that they or someone within are in peril of bodily harm." Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958); (2) when the officers have a basis for assuming that a suspect is "armed or might resist arrest." Sabbath v. United States, 391 U.S. at 585, 88 S.Ct. at 1759; (3) when there is "some affirmative indication to support a belief that evidence is being destroyed." Commonwealth v. Clemson, 234 Pa.Super.Ct. 191, 194 n. 1, 338 A.2d 649, 650 n. 1 (1975); Miller v. United States; Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); (4) when there are similar indications that "the person to be arrested is fleeing." Miller v. United States, 357 U.S. at 309, 78 S.Ct. at 1196; Commonwealth v. Newman ; or (5) when "the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture." Miller v. United States, at 310, 78 S.Ct. at 1196; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman; Commonwealth v. Fisher, 223 Pa.Super.Ct. 107, 296 A.2d 848 (1972).

Without question, the police in this case had reason to believe that the suspect was armed and might resist arrest, thus increasing the officers' peril. See United States v. Scott, 520 F.2d 697 (9th Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967). Moreover, the police had a legitimate basis for being virtually certain that appellant already knew the purpose of their visit and that an announcement would have been a useless gesture. The police were aware in this instance that just a few hours before, appellant had telephoned the victim and threatened to harm her if she reported the crime to the police. Thus, when the police arrived, knocked on the door, identified themselves and received no response, they were justified in concluding that appellant was inside, was not going to respond and was aware of the officers' presence and purpose. The failure of the officers to expressly announce their purpose prior to entry was therefore justified. Cf. United States v. Wylie, 462 F.2d 1178 (D.C.Cir.1972). (There, minutes after a purse-snatching, police were directed by eyewitnesses to the suspect's residence. After five minutes of shouting "Police officers, open up," a forcible entry ensued. The suspect was found hiding within the residence. The court held that an announcement of purpose would have been a useless gesture). The twenty minute delay, considered by the dissent conclusively to preclude a finding of exigency, is indicative of nothing more than an extremely cautious and circumspect approach to a potentially violent situation and in no way vitiated the underlying exigency.

With regard to appellant's second contention, since the arrest was lawful, it is well settled that police could make a search incident to that arrest, of those areas from which they might expect danger, for the purpose of insuring themselves against such danger. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978).

Here the police had every reason to believe a firearm was available to the occupants of the apartment and that one of its usual occupants, appellant's brother, whom appellant had implicated in his threats of harm to the victim, was unaccounted for in the living room. To expect these officers to turn their backs on the bedrooms is to expect too much. They therefore had a right to enter the bedroom to insure their safety from that quarter. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The officers, thus having a right to enter the bedroom, were in a lawful position to see and to seize whatever instruments of crime were in plain view from that position. ^[3] Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (dictum). Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369 (1979). The knife was an instrument of the crime. It was in plain view on the bedroom nightstand. The fact that Detective Stasiak, the first officer to enter the bedroom, did not see it does not make Detective Strunk's observation of it when he entered other than inadvertent. ^[4]

Since the police had a right to enter the bedroom both to insure their own safety and to obtain evidence in plain view they had probable cause to believe would aid in conviction, they had a right to seize the knife one of them saw in plain view when he entered that bedroom. Since the exigencies of the situation had already justified the intrusion into the bedroom without a warrant, the suppression court properly inferred that seizure of the knife from the table, where it was in plain view, did not broaden the scope of the intrusion.

The situation with respect to the gun found under the mattress, however, is different. In fact, that difference nicely points up the distinction between the proper bounds of an exigent warrantless search and its incremental extension into an unreasonable intrusion. The gun could not have been seen without a thorough search of the bedroom. That search occurred after defendant was securely held and after it was apparent there was no one else in the apartment to endanger the officers. The failure to suppress it and its use at trial were, therefore, in error. Indeed, the Superior Court so found and the Commonwealth concedes it here. Nevertheless, we are satisfied such error was harmless under the test announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and adopted by this court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) ^[5] for all error, both that based on a violation of the constitution, and of law. ^[6]

Under the test adopted by this court in Commonwealth v. Story, supra evidence improperly admitted can be treated as harmless on any one of three grounds, namely, that the evidence...