United States v. Gable, Misc. No. 3340.

• Decision Date: 17 October 1967
• Docket Number: Misc. No. 3340.
• Citation: 276 F. Supp. 555
• Parties: UNITED STATES of America ex rel. Joseph AMETRANE v. John I. GABLE, Warden, Delaware County Prison.
• Court: U.S. District Court — Eastern District of Pennsylvania

276 F. Supp. 555

UNITED STATES of America ex rel. Joseph AMETRANE v. John I. GABLE, Warden, Delaware County Prison.

Misc. No. 3340.

United States District Court E. D. Pennsylvania.

October 17, 1967.

Joseph W. deFuria, of deFuria, Larkin & deFuria, Chester, Pa., for relator.

Jacques H. Fox, Dist. Atty., and Ralph B. D'Iorio, Asst. Dist. Atty. Delaware County, Media, Pa., for respondent.

OPINION

BODY, District Judge.

Relator Ametrane was tried and convicted by the state trial court of setting up a gambling establishment and of book-making. He was sentenced to pay a $500 fine and to serve three months' imprisonment. The conviction was affirmed by both the Superior and Supreme Courts of Pennsylvania.¹ On August 5, 1966, he began to serve his sentence. On August 11, 1966, he was released on bail by order of this Court pending disposition of his habeas corpus petition.

On October 4, 1966, a hearing was held. The evidence presented consisted solely of the record, which contained the testimony at the pre-trial and trial levels. The relator did not testify either at trial or in this proceeding.

The relator's petition rests primarily on the contention that the police officers entered his apartment before they announced their identity, authority, and purpose; that the officers had no justification for such failure to give notice; and that therefore the officers' method of entering his apartment offended federal constitutional standards of reasonableness and vitiated the legality of the accompanying search and seizure. The relator thus concludes that the state courts erroneously denied his petition to suppress the evidence obtained by the allegedly illegal search and seizure. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

From the record, the following facts appear:

On August 27, 1963, two county detectives obtained warrants authorizing the arrest of relator Ametrane and a search of his premises. At 2:40 p. m. that same day the detectives arrived at the alley passage leading to the ground floor entrance of Ametrane's second floor living quarters. The detectives were not in uniform; they wore ordinary street clothes. As they proceeded down the alley, they saw Ametrane in the second floor bay window, sitting at a table where the detectives had on prior occasions observed him making and receiving telephone calls.

One detective testified that Ametrane "looked down as we were coming * *." R. 34a. The detectives then hurried up to Ametrane's door and rapped loudly. They waited approximately one minute. They heard nothing, and no one answered their knock on the door. They knocked again and immediately began to pry open the door with a two-foot crowbar. One detective testified that the tapered end of the bar was between the door and the jamb when "the next thing I knew, I heard a voice from behind the door saying don't break my door, I'll let you in." R. 36a.

Relator Ametrane, dressed in his underwear, had come down the steps from his second story living quarters. To keep the detectives from forcing his lock, he opened his door.

The police entered, went upstairs to Ametrane's living quarters, and remained there for approximately one hour gathering evidence and intercepting telephone calls. It is fairly clear that at some point in time, the detectives identified themselves and showed Ametrane the warrants. However, the question is whether the detectives gave their identity and stated their authority and purpose before they entered upon Ametrane's premises.

The state courts' findings on whether or when the detectives stated their authority and purpose are inconsistent with the record and with each other. At the preliminary hearing, the state court did not determine whether such notice was ever given; the court merely concluded that Ametrane, by opening the door, had consented to the officers' entry. R. 51a. The Superior Court, however, concluded that the lower court had found that the detectives had made an announcement by ringing a bell or by knocking. Commonwealth v. Ametrane, 205 Pa. Super. 567, 574, 210 A.2d 902 (1965). The lower court did not make a finding on whether an adequate announcement had been made. Furthermore, the detectives testified that they did not see a doorbell. R. 35a. To further obfuscate the issue, the Supreme Court added that Ametrane could not object to the detectives' failure to state their identity or purpose because "he was well aware of who were at his door and why they were there." Commonwealth v. Ametrane, 422 Pa. 83, 88, 221 A.2d 296, 298 (1966).

None of the three state courts' conclusions are supported by the evidence in the record. Opening a door to which two men are applying a crowbar simply does not imply any meaningful consent to entry. Ringing a bell or knocking on a door hardly announces the identity and purpose of the ringer or knocker. Finally, there is no evidence suggesting that Ametrane knew the two men in plain clothes to be county policemen.

However, despite their apparent contradictions, the three state court conclusions appear to be founded on one implicit common premise: that the officers did not explicitly announce their identity or purpose before they entered. At the preliminary hearing the lower court excused the failure of notice by finding consent; the Superior Court found an implied announcement; and the Supreme Court found pre-existing awareness on the part of the relator. Had any of the three courts believed the officers to have stated their identity and purpose before entry, the findings excusing the failure of notice would not have been necessary. We accept the implicit common premise, and from the record find as fact that although the officers possibly may have identified themselves before entering, they did not state their purpose or show their warrants. It is true that at the pre-trial hearing, one of the detectives testified that when Ametrane opened the door, they had shown their badges and informed him that they had warrants. R. 37a. However, there is no indication that the detectives explained the subject matter or nature of the warrants. Furthermore, the same detective's trial testimony indicated that the detectives stated their purpose and identity only after entering and climbing the steps to the relator's second floor living quarters. R. 56a; R. 69a. The state courts apparently accepted the trial testimony as more accurate. So do we.

The State Supreme Court held the arrest and search to be legal despite the officers' failure to give notice of their identity and purpose prior to entry. Clearly, the lawfulness of the method of entry is to be determined by reference to state law insofar as it is not violative of the federal constitution. Ker v. State of California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). However, we are warranted in examining the method of entry to determine whether, notwithstanding its legality under state law, the entry offended federal constitutional standards of reasonableness and thereby vitiated the legality of the accompanying search and arrest.

The fourth amendment prohibition against unreasonable search and seizure clearly demands that, ordinarily, before a police officer enters upon private premises to conduct a search or to make an arrest, he must give notice of his identity and purpose; the only exception is when exigent circumstances justify the failure to give notice. Ker v. State of California, supra. Nor is the fact that the officers had search and arrest warrants relevant to the legality and reasonableness of the method of entry or of the failure to give the required notice. United States ex rel. Manduchi v. Tracy, 350 F.2d 658, 660 (3d Cir.), cert. den. 382 U.S. 943, 86 S.Ct. 390, 15 L.Ed.2d 353 (1965).

The state Supreme Court concluded that despite the officers' failure to give notice, their entry into Ametrane's premises was reasonable for two reasons: first, the officers' entry into the apartment was not "forceful"; second, the Ker exceptions apply because the officers were justified in believing that Ametrane knew their identity and purpose and was then attempting to destroy evidence of his gambling activities. We disagree.

A. Forceful entry

The "forceful entry" in Ker v. State of California, supra, was the use of a pass key by the police. Merely pushing open a stuck door has been held a forceful entry. Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960). Here, the police officers had actually inserted the crowbar between the door and the jamb in order to force the door open. R. 36a. By the officers' own testimony, Ametrane told the...