DocketNumber: 322
Citation Numbers: 595 A.2d 133, 407 Pa. Super. 78
Judges: Olszewski, Beck and Tamilia
Filed Date: 7/25/1991
Status: Precedential
Modified Date: 8/26/2023
This is an appeal from an April 30, 1990 Order suppressing physical evidence obtained as a result of a purportedly faulty search warrant. The relevant facts are as follows.
On October 13, 1989, Officer Steven Resser of the East Pennsboro Police Department and Special Agent Jeffrey Mohn of the Pennsylvania State Attorney General’s Office
Commencing at approximately 9:45 p.m., with Ohler’s consent to interception of a phone call, Fairview Township Police Detective Ronald Diller telephoned appellee’s residence several times. The phone calls were received by appellee’s son, Robert Grubb, III. A transcript of the telephone calls admitted into evidence, albeit cryptic,
Based on this evidence, the officers secured a night time search warrant from District Justice Ronald Klair. The probable cause affidavit, the subject in dispute in this case, states the following:
That your affiant Steven Resser has been a police officer for over 15 years and has perticipated (sic) in excess of 20 drug related investigations. Your Co-affiant has been a drug agent for over 8 years and has been involved in excess of 400 drug investigations and in excess of 20 search and seizure warrants.
That on 10/18/89 your affiant interviewed a confidential informant who stated that he has within the past 48 hours been to the residence of Robert Grubb and did at that*81 time observe in excess of one ounce of marihuana and in excess of 10 grams of hashish. The confidential informant advises that he has purchased controlled substances from Robert Grubb Jr. at least 25 times over the past several years and has had personnal (sic) knowledge of at least one occasion when Robert Grubb Jr. had in his possession over 20 pounds of marihuana.
That on 10/13/89 and within the past 10 hours the confidential informant under the direction of your co-affiant Jeffrey Mohn and Det. Ronald Diller of Fairview Twp. Police, placed a telephone call to Mr. Robert Grubb, Jr. During the call Robert Grubb Jr. advised the confidential informant that he could obtain controlled substances at Robert Grubb Jr.’s residence, 829 S. Humer St, E. Pennsboro Pa. The C/I was advised to come to the residence for the drugs.
That your affiant and Co-affiant report that it is a normal occurance (sic) for those involved in drug trafficking to keep firearms at or near the location where drugs are kept. In addition controlled substances can be readly (sic) destroyed in the event the person(s) involved in drug trafficking become alarmed to the presence of police. For the purpose of officer safety and to prevent the destruction of evidence, your affiant respectfully requests that a no-knock search warrant be issued. Your affiant and co-affiant additionally report that when drugs are present and drugs are being sold or used the drugs can be sold very quickly. In order to prevent the controlled substances at the Grubb residence from being sold or used your affiant requests that a night time search warrant be granted so that the information in this affidavit can be acted on immeaditally (sic).
(Search warrant, Record at pp. 4-5.)
After securing the search warrant, the Tri County Narcotics Task Force, composed of state and local authorities, conducted a raid on the appellee’s home. Pursuant to the warrant, the police did not knock or announce their identity or purpose, but rather broke down the door without allow
On the basis of its finding Pa.R.Crim.P. 2007, Manner of Entry Into Premises, had been violated, the trial court suppressed all the aforementioned evidence as fruit of an illegal search. It is this suppression Order which is now challenged by the Commonwealth.
Our standard of review on appeal from a suppression ruling is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987). Rule 2007, supra, provides in relevant part:
(a) 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 to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
Pa.R.Crim.P. 2007(a) (emphasis supplied). We hold the statement of probable cause, on its face, provided an insufficient statement of reliable exigent circumstances to allow an unannounced entry into appellee’s home.
The Commonwealth asserts a knock and announce entry by police would allow the suspected drug dealers the opportunity to arm themselves against police intrusion thereby imperiling the police officers’ safety. They base this argument on the inherent danger armed drug dealers pose to police, as well as the officer’s experience
To excuse the officers’ failure to announce their identity, purpose and presence and, thereafter, to excuse the necessity of a reasonable passage of time allowing for the voluntary surrender of the premises, there must be
The Commonwealth’s final argument is the police reasonably relied in good faith on the independent judicial determination of the issuing magistrate. Therefore, the Commonwealth argues, the police should not be penalized for relying upon the express authorization of a judicial officer. While this argument has serious merit under rulings promulgated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), unfortunately for the Commonwealth, the Pennsylvania Supreme Court has taken a more restrictive view of the good faith doctrine. We are bound to follow the recent decision of this Commonwealth’s Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), which has effectively terminated the use of the “good faith” exception by police in Pennsylvania.
Order affirmed.
. We agree with the trial court's finding wherein the court states: "While the conversation was somewhat cryptic, it is clear that both Mr. Ohler and Mr. Grubb were discussing the purchase of a substance which neither of them wished to name over the telephone.” (Slip Op., Hess, J., 4/30/90, p. 2.) We note "hashish” was specifically referred to at one point in a conversation.
. We would not reach the issue proposed by the Concurring Opinion that Pennsylvania law does not permit a warrant containing a no knock search provision under all circumstances. That issue is not ripe for disposal here and the Concurring Opinion propounds dicta when it attempts to resolve that issue. The rapidly shifting balance in the application of search and seizure principles to recent cases requires that we not extend our holdings beyond what is necessary to resolution of the issue at hand. It is difficult to say how an issuing
. Special Agent Mohn testified that he has been a narcotics agent since 1982 and a patrol officer prior to that. He conservatively estimated that in over 200 searches in which he was involved, weapons were
. "This [Pennsylvania Supreme] Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not