Commonwealth v. Rudisill

622 A.2d 397, 424 Pa. Super. 313, 1993 Pa. Super. LEXIS 1082

• Court: Superior Court of Pennsylvania
• Decided: March 29, 1993
• Docket: 1359
• Status: Published

Opinions

KELLY, Judge:

Appellant, William Rudisill, appeals from judgment of sentence following his convictions of possession of a controlled substance,¹ possession of a controlled substance with intent to deliver,² possession of drug paraphernalia,³ and criminal conspiracy.⁴ We reverse.

The salient facts and procedural background may be summarized as follows. On June 19, 1990, Delaware County Narcotics Officers, accompanied by two township police officers and one Pennsylvania state trooper, arrived at appellant’s apartment to execute a valid search warrant.⁵ One of the police officers knocked on appellant’s door. No response followed. After fifteen seconds, the police simultaneously knocked on the door, announced their presence and identity as police officers, and sledge-hammered their entry into the apartment. After this entry and pursuant to the search warrant, the police officers searched appellant’s apartment. The search revealed several envelopes of PCP and a mixture of ether and PCP.

Before trial, appellant moved to suppress the evidence, arguing, inter alia, that the police officers violated the “knock and announce” rule. Following a hearing, the trial court denied appellant’s motion. At a non-jury trial on the merits of the case, appellant was convicted as stated above. Post-verdict motions were filed and denied. The trial court sentenced appellant to four to ten years imprisonment and fined him $25,000.00. This timely appeal followed.

On appeal, appellant argues:

THE POLICE OFFICERS WHO EXECUTED THE SEARCH WARRANT HEREIN VIOLATED THE “KNOCK AND ANNOUNCE” RULE AND, AS A RESULT, ALL EVIDENCE OBTAINED FROM THE SEARCH OF THE APARTMENT SHOULD BE SUPPRESSED.

Appellant’s Brief at i. We agree.

Our standard of review is as follows:

In reviewing an order denying a motion to suppress evidence, this Court must

determine whether the factual findings of the suppression court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), allocatur denied, 525 Pa. 598, 575 A.2d 564 (1990) (citations omitted).

In determining whether an entry following a knock and announcement is unlawful, we must consider whether the delay in entry was reasonable. Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992); Pa.R.Crim.P. 2007. An entry which is unreasonable under Pennsylvania Rule of Criminal Procedure 2007 (“Manner of Entry Into Premises”) is also an unreasonable entry under the Fourth Amendment. Commonwealth v. Means, supra at 506-08, 614 A.2d at 222.⁶

The following precedents have determined what constitutes an unreasonable police entry. In Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968), the Pennsylvania Supreme Court held that a forcible entry following twenty seconds of silence after the knocking and announcement was unreasonable. Likewise, a forcible entry only five to ten seconds after the knocking and announcement is unreasonable, Commonwealth v. Means, supra, as is a forcible entry after a delay of one to two seconds. Commonwealth v. Bull, 422 Pa.Super. 67, 618 A.2d 1019 (1993). Moreover, even if the police wait thirty seconds after the original knock, their forcible entry is unreasonable if it follows the announcement of their identity by only five to ten seconds. Commonwealth v. McDonel, 411 Pa.Super. 187, 601 A.2d 302 (1991).

If the entry is unreasonable due to a violation of Rule 2007 and the Constitution, the fruits of the search must be suppressed from trial. Commonwealth v. Means, supra; Commonwealth v. Bull, supra. Our Supreme Court explained:

... Rule 2007 in particular implicates the fundamental constitutional concern of the prohibition against unreasonable searches and seizures. Therefore, a finding that the police’s deliberate execution of a search warrant violated Rule 2007 dictates the conclusion that the fruits of the unlawful search should have been suppressed.

Commonwealth v. Means, supra, 531 Pa. at 509, 614 A.2d at 223.

In the instant case, the police initially knocked on appellant’s door without identifying themselves. Fifteen seconds later, they knocked and announced their presence. However, their forcible entry occurred simultaneously; the police allowed no time to lapse between their announcement and their entry. Pursuant to established interpretations of the Fourth Amendment and Pennsylvania Rule of Criminal Procedure 2007, we conclude that the police entry was unreasonable. Accordingly, the trial court should have granted appellant’s motion to suppress the fruits of the search that followed.⁷ We must, therefore, vacate judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded.

CIRILLO, J., files a dissenting opinion.

1 . 35 P.S. § 780-113(a)(16).

2 . 35 P.S. § 780-113(a)(30).

3 . 35 P.S. § 780-113(a)(32).

4 . 18 Pa.C.S.A. § 903.

5 . The trial court found that the warrant was valid despite appellant’s pretrial argument to the contrary. See N.T. May 2, 1991 at 4. However, appellant has not maintained that argument on appeal. Therefore, for appellate purposes, the warrant was valid.

6 . Rule 2007(b) provides that a police officer must await a reasonable amount of time after announcement of his identity before entering, "unless exigent circumstance require his immediate forcible entry.” Our Supreme Court has enunciated four circumstances which justify the exceptional entry:

1) the occupants remain silent after repeated knocking and announcing;

2) the police are virtually certain that the occupants of the premises already know their purpose;

3) the police have reason to believe that an announcement prior to entry would imperil their safety; and

4) the police have reason to believe that evidence is about to be destroyed.

Commonwealth v. Chambers, 528 Pa. 403, 408, 598 A.2d 539, 54 (1991).

Commonwealth v. Means, supra, 531 Pa. at 508, 614 A.2d at 222-23. The Commonwealth does not argue, nor can we conclude, that any of these exceptions apply in this case.

7 . We reject the Commonwealth’s argument that the doctrine of inevitable discovety may be applied in this case to save the evidence from suppression. The inevitable discovery doctrine applies when there would have been a discovery independent from the one which resulted from the unlawful act. See Commonwealth v. Mason, 415 Pa.Super. 22, 36, 608 A.2d 506, 509 (1992), quoting Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ("So long as a later lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply.”); Commonwealth v. Hoffman, 403 Pa.Super. 530, 589 A.2d 737 (1991) (evidence would have been discovered by other lawful means); Commonwealth v. Reviera, 387 Pa.Super. 196, 207, 563 A.2d 1252 (1989) ("Suppression of evidence is not available as a remedy for unlawful police conduct where the evidence was obtained by means independent of the unlawful police conduct.”). In the instant case, there was only to be one means of seizing the contraband — through the execution of the search warrant. There was no alternative plan to make entry. Therefore, the Commonwealth would not have discovered the evidence any other way. That they would have found the drugs pursuant to a lawful execution of the search warrant does not purge the unlawful execution.