Commonwealth v. Grubb , 407 Pa. Super. 78 ( 1991 )

TAMILIA, Judge:

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 met with a confidential informant, Scott Ohler, to discuss illegal narcotic sales made by appellee, Robert Charles Grubb, Jr., the target of an ongoing police investigation. The focus of the interview and investigation was drug sales allegedly being conducted out of appellee-Grubb’s 829 S. Humer Street home in East Pennsboro, Cumberland County, Pennsylvania.

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,¹ discloses that informant Ohler and appellee’s son discussed completing a drug transaction upon the expected arrival of a drug shipment to appellee’s home that evening. In a phone call placed at approximately 1:00 a.m., Ohler was informed by Grubb the shipment had arrived. Ohler then made plans with Grubb to immediately go to appellee’s home to purchase drugs.

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 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 allowing appellee the opportunity to voluntarily surrender the premises. Inside, the police at once announced their identity. Police recovered from the premises a crossbow, an unloaded 12 gauge shotgun as well as an unloaded .45 caliber automatic handgun with loaded clips near appellee’s bed. A stash of cocaine and marijuana, as previously referred to in the phone conversations between Ohler and Grubb, was recovered from inside the-premises, in addition to a scale containing suspected cocaine residue.

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.²

While the Commonwealth argues that had the officers knocked and announced themselves and their purpose, they would have alerted appellee to refuse police entry and given him the opportunity to stall for time and destroy the drugs on the premises, this is pure speculation. Noncompliance with the requirement police officers give notice of their identity and purpose before attempting to enter private premises may be justified if the occupant is fleeing or attempting to destroy evidence or if the police are virtually certain the occupant is already aware of their purpose. However, the mere fact that the evidence being sought is easily destroyed does not suspend the requirement. There must be some affirmative indication to support a belief the evidence is being destroyed. Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975). The fourth amendment requires the police to knock and identify themselves and only if their calls are not answered within a reasonable time under the circumstances may force then be used to enter. While there is no constitutional requirement that police afford suspects a reasonable opportunity to destroy evidence, it is only when police actually have reason to believe the evidence is being destroyed while they wait outside the door that they may forcibly enter the premises. Commonwealth v. Early, 236 Pa.Super. 60, 345 A.2d 197 (1975). In the case sub judice, there is no showing the police believed destruction of the evidence was imminent, thus justifying the waiver of the knock and announce rule.

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 experience³ in conducting drug raids. Under limited circumstances, the knock and announce rule has been disregarded where police had reason to believe announcement prior to entry would imperil their safety. See Morgan, supra; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972). However, in this case, to accept the Commonwealth’s argument is to recognize a presumption whereby exigent circumstances sufficient to do away with the knock and announce rule would exist any time a search for drugs is conducted. We would, in effect, be taking judicial notice of the fact that drug dealers customarily carry weapons and, therefore, any search of a suspected dealer’s operating base would necessarily endanger the investigating officers. We are unwilling to create this presumption. Such a fundamental change in the knock and announce rule should not be made by judicial determination based on allegations in a particular case but must be addressed in careful and studied deliberation by the legislature. Vague allegations in a probable cause affidavit to a magistrate do little to protect the arresting officer and weaken the safeguards provided to the citizenry by the Constitution. The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed. The circumstances where verified and detailed information is supplied to the magistrate regarding the existence of weaponry which would present unusual danger to the searching officer, thereby permitting authorization of a no-knock entry, need not be considered here as the facts do not warrant it.

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 more than the presumption that the evidence would be destroyed merely because it could easily be accomplished. See Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). The argument could be made that contraband would be destroyed in every case where it was possible when the actor was aware that search or arrest was imminent. Accordingly, the police failure to announce their identity and allow a reasonable time for the voluntary surrender of the premises will not be excused on the mere presumption drug raids are dangerous and deadly weapons may be used. The fact evidence may be destroyed, or police may be in danger, does not justify the suspension of the fourth amendment. One of the prices we must pay for the security which the fourth amendment bestows upon us is the risk that, occasionally, drug dealers will go free. See generally Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).

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.⁴ Accordingly, we affirm.

Order affirmed.

Concurring opinion by BECK, J.

1 . 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.

2 . 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 authority should rule in the case of known terrorists, revolutionaries and drug cartel members.

3 . 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 seized in 90 per cent of the cases. In over half of the searches, loaded weapons were readily available to whomever would go after them.

4 . "This [Pennsylvania Supreme] Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions." Commonwealth v. Edmonds, 526 Pa. 374, 586 A.2d 887, 894. See cases cited therein, including PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); and Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), which states: "This Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. Id., 504 Pa. at 64, 470 A.2d at 467.