Commonwealth v. Dean , 1997 Pa. Super. LEXIS 989 ( 1997 )

POPOVICH, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that exigent circumstances existed which justified the violation of the knock and announce rule by the police when they executed the search warrant.

As the majority concedes, “the officers appear to have facially violated the knock and announce rule.” Opinion, at p. 1363. However, the majority concludes that the departure from the knock and announce rule was justified because the officers “had specific and articulable reason to believe that they were in peril.” Opinion, at p. 1364. The evidence cited as support for the officer’s perceived peril was reliable information from a confidential informant that appellant possessed a handgun inside his home.

The majority cites Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982) and Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636 (1990), for support of the proposition that police are entitled to violate the knock and announce rule on account of exigent circumstances where the police have reason to believe the suspect possesses a weapon. However, I conclude that those cases are distinguishable from the facts presented today.

In Stanley, supra, the suspect was an escaped convict who had committed murder with a handgun and who was seen in possession of a handgun only one hour before the police forced entry into the apartment where he was hiding. Our Supreme Court ruled that exigent circumstances justified violation of the knock and announce rule.

In Norris, supra, the suspect had kidnapped and raped his victim at knife point, and after releasing his victim, he telephoned her and again threatened her with harm if she reported the rape. Here, our Supreme Court ruled that “the police in this case had reason to believe that the suspect was armed and might resist arrest, thus increasing the officers’ peril.” Norris, 446 A.2d at 249.

In Feflie, supra, the suspect had robbed a bank using a .357 magnum revolver three days prior to his arrest. Our Supreme Court again ruled that exigent circumstances justified any violation of the knock and announce rule since the police reasonably believed that the suspect was armed.

Those three cases all have one clear distinction from the facts sub judice. In those cases, the police not only had a reasonable belief that the suspect possessed a weapon, but also that the suspect was prepared to use the weapon as each had done on a prior occasion.

Herein, we only have the testimony of a confidential informant that appellant was in possession of a handgun. There was no evidence that appellant had previously committed an act of violence. Further, there was no evidence that appellant possessed the gun illegally. Finally, at the time of entry, there was no other exigent circumstances, e.g., no sounds of anyone inside the home attempting to escape or destroy evidence.

I agree with appellant that the present case is much more similar to Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991), than Stanley, supra, Norris, supra, and Feflie, supra Therein, we rejected the notion that the exigent circumstances which are necessary to justify a violation of the knock and announce rule exist every time a search warrant for drugs is executed because “drug dealers customarily carry weapons.” Grubb, supra. Herein, there is no evidence that appellant possessed the gun illegally or intended to use the gun against the authorities. Permitting exigent circumstances to be based solely on the presence of the weapon is tantamount to presuming all drug dealers possess weapons and will use them.

While I certainly recognize the dangers which police officers face when executing search warrants upon alleged narcotic traffickers, I do not believe the mere presence of a weapon in a suspect’s residence when legally possessed by the suspect gives rise to exigent circumstances, where there is no evidence to suggest that the suspect would employ it criminally. Until the mere possession of a weapon is illegal, that possession can not amount to exigent circumstances per se. Accordingly, I would reverse the decision of the court below and suppress the evidence seized as a result of the violation of the knock and announce rule.