Commonwealth v. Wilson , 395 Pa. Super. 523 ( 1990 )

TAMILIA, Judge:

This is an appeal from the March 21, 1989 Order of court granting appellee’s suppression motion. On September 24, 1988, police officers raided the house belonging to Willy Thompson in Erie, Pennsylvania, pursuant to a search warrant alleging illegal sales of alcoholic beverages and use of the residence as a “speakeasy.” Appellee was one of several people who rented a room in the house. All boarders have a key to the outside door and have use of the common areas, but appellee’s room had two locks for which only he had the keys. During the raid, the officers not only searched the basement where the speakeasy was alleged to be but also conducted a non-consensual search of appellee’s room after kicking in the door. The police seized marijuana, Tussionex and liquor from appellee’s room. The police then charged appellee with two counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act, with intent to deliver¹ and one count of presence or participation in disorderly house prohibited,² a summary offense. Appellee filed a motion to suppress the marijuana and Tussionex, which the trial court granted. The Commonwealth timely appealed certifying the effect of granting the suppression motion substantially handicaps its prosecution.

The Commonwealth contends the trial court erred in granting the suppression motion because the search warrant was validly issued. After a thorough review of the record, we agree with the Commonwealth the warrant was validly issued. However, we find the police improperly executed the warrant, and as such, appellee is entitled to have the fruits of the illegal search suppressed.

The United States Supreme Court, in Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72, (1987), established the standard for determining whether a search warrant was properly executed in a case involving facts similar to those in the instant case. In Garrison, police officers obtained and executed a warrant to search Lawrence McWebb and the premises known as 2036 Park Avenue third floor apartment. The third floor was, in fact, divided into two apartments with McWebb occupying one and Garrison occupying the other. At the time of application for the warrant and execution of the warrant, the police reasonably believed there was only one apartment on the third floor. Only after they discovered the contraband did the police realize they were in Garrison’s separate apartment. Thereupon, they immediately concluded the search.

The Garrison Court was called upon to determine if the seizure of contraband from Garrison’s apartment violated the fourth amendment. The Court held the search was proper because the police officers reasonably believed they were searching the premises named in the search warrant— namely McWebb’s apartment—when they seized the contraband, and because upon discovering there were two separate apartments, the police discontinued the search. However, the Court stated:

If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.

Id. at 86, 107 S.Ct. at 1018. The Court went on to say:

[T]he validity of the search of respondent’s apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers’ failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb’s apartment and the third floor premises.

Id. at 88, 107 S.Ct. at 1019.

In contrast, the facts of the instant case show the police officers knew appellee rented a room in the house. The Commonwealth concedes appellee told the police officers, prior to the search, he rented a room in the building and indicated which room was his (S.T., 3/21/89, pp. 55, 57, 61; Appellant’s brief, pp. 5-6, 12). The Commonwealth points out that the officers kicked in the door to appellee’s room prior to having this information, but we emphasize the search itself did not take place until after the officers knew it was appellee’s rented room they were about to search. Furthermore, the police officers here did not discontinue their search upon realizing there were separate apartments as did the police officers in Garrison. The facts clearly illustrate the police officers had no objectively understandable and reasonable reasons for not realizing the overbreadth of the warrant upon its execution. As such, we conclude the trial court properly suppressed the evidence.

Order affirmed.

KELLY, J., dissents.

1 . 35 P.S. § 780-113(a)(30).

2 . Local Ordinance L0706.01.