Commonwealth v. Beard

423 A.2d 398, 282 Pa. Super. 583, 1980 Pa. Super. LEXIS 3435
CourtSuperior Court of Pennsylvania
DecidedDecember 5, 1980
Docket1147 and 1148
StatusPublished
Cited by6 cases

This text of 423 A.2d 398 (Commonwealth v. Beard) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Beard, 423 A.2d 398, 282 Pa. Super. 583, 1980 Pa. Super. LEXIS 3435 (Pa. Ct. App. 1980).

Opinions

MONTGOMERY, Judge:

This is an appeal by the Commonwealth from an order suppressing evidence secured by the execution of a search warrant.1 The evidence adduced at the suppression hearing reflects the following facts. On November 15, 1977, the Pittsburgh Police obtained a warrant to search the first floor apartment at 6756 McPherson Boulevard. The search warrant was issued in the names of both appellee Marvin Jones and appellee Lynette Beard. When the police arrived [585]*585on the scene, they knew Lynette Beard to be present inside the apartment. Based on a tip that Jones would be arriving shortly to cut and package heroin, the forestalled execution of the search warrant. Instead, they stationed themselves around the corner and began surveillance of the premises. Approximately one—half hour later, Jones drove up to the apartment and alighted from his vehicle. The detectives immediately approached in their vehicle and jumped out. As Jones reached the porch, he recognized the police and ran inside the dwelling, closing the door.2 By this time, the detectives were right behind Jones. They burst through the closed door, and arrested him as he attempted to flush something down the toilet. Several packages of heroin were found nearby. After arresting Jones, appellee Beard was informed of the search warrant. She was subsequently arrested when drugs and related paraphernalia were discovered in the apartment.

The provisions of the Fourth Amendment to the Constitution of the United States are designed to protect our citizens against unreasonable searches and seizures. The issuance of a search warrant, making it lawful to conduct a search within the limits of the facts as stated on the face of the warrant, serves as evidence of the reasonableness of a search. However, even the presence of a search warrant does not render every search pursuant to such a warrant reasonable.

Pa.R.Crim.P. 2007(a) provides, in part, that:

“[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 . . . unless exigent circumstances require his immediate forcible entry.”

[586]*586Thus, prior to making a forcible entry, the officer must, absent exigent circumstances, announce his identity and purpose to provide the occupant with a reasonable opportunity to surrender his privacy. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971), Commonwealth v. Easton, 231 Pa.Super. 398, 332 A.2d 448 (1975). “The purpose of this announcement rule is that ‘. . . the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to invade an individual’s privacy.’ ” Commonwealth v. DeMichel, supra, 442 Pa. at 561, 277 A.2d at 163, quoting United States ex rel Ametrane v. Gable, 276 F.Supp. 555, 559 (E.D.Pa.1967) aff’d, United States ex rel Ametrane v. Gable, 401 F.2d 765 (3rd Cir. 1968).

This announcement requirement not only reflects the undiluted respect in which we hold an individual’s right to privacy, but it also serves to reduce the potential for violent confrontations between officers and occupants and to guard against needless destruction of private property. Commonwealth v. Duncan, 257 Pa.Super. 277, 390 A.2d 820 (1978), appeal dismissed, Commonwealth v. Duncan, 485 Pa. 340, 402 A.2d 662 (1979). Commonwealth v. Perry, 254 Pa.Super. 549, 386 A.2d 86 (1978), United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1973).

As stated above, the requirement of announcing both identity and purpose is only waived if exigent circumstances are present. Although exigent circumstances must be determined on a case-by-case basis, certain factual situations have been found to warrant a waiver of the “knock and announce” rule. These include when there is a possibility of harm to the officers or occupants of the premises, Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975), Commonwealth v. McKeever, 229 Pa.Super. 35, 323 A.2d 44 (1974); where unusual activity leads to a reasonable belief that evidence is being destroyed, Commonwealth v. Harper, 233 Pa.Super. 294, 334 A.2d 761 (1975), Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); [587]*587or where the police have valid grounds for being virtually certain that the persons inside the premises to be searched already know the identity and purpose of the police. In such a case, useless gestures by the police are unnecessary. Commonwealth v. Fisher, 223 Pa.Super. 107, 296 A.2d 848 (1972), Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

In light of the above case law, our initial concern must therefore be whether the facts of the instant case qualify as an exigent circumstance, excusing the police from the need to knock and announce their identity and purpose. The lower court agreed with the Commonwealth that the presence of exigent circumstances in this case vitiated the need for the police to knock and announce. The fact that Jones recognized the police and upon doing so, fled into the residence is sufficient evidence that he knew the identity and purpose of the police. Thus, the police had valid grounds for being virtually certain that Jones had ascertained their purpose and would attempt to destroy the evidence of narcotics. In such circumstances, noncompliance with the knock and announce requirement is excused for police need not make useless gestures.

The lower court nonetheless suppressed the evidence on the basis that the exigent circumstances were created by police conduct to achieve this very purpose of foregoing the knock and announce rule. As such, the police actions circumvented the appellees’ constitutional right to be informed of the officers’ identity and purpose and to voluntarily surrender their privacy. The lower court held the execution of the search warrant to be unlawful. We must agree.

As the lower court aptly stated the issue:

“[t]he crux of the matter centers upon whether exigent circumstances, when prompted by the dilatory tactics of police in executing a search warrant .... vitiates an unannounced entry, arrests, and evidence seized as a result thereof?”

[588]

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Related

Commonwealth v. Davis
480 A.2d 1035 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Beard
461 A.2d 790 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Eliff
446 A.2d 927 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Norris
446 A.2d 246 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Beard
423 A.2d 398 (Superior Court of Pennsylvania, 1980)

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Bluebook (online)
423 A.2d 398, 282 Pa. Super. 583, 1980 Pa. Super. LEXIS 3435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-beard-pasuperct-1980.