Commonwealth v. Richter

STEVENS, J.

¶ 1 This is an appeal by the Commonwealth from an order entered in the Court of Common Pleas of Bucks County granting Appellee Karen Lee Richter’s motion to suppress the physical evidence seized by the police. On appeal, the Commonwealth alleges that the warrantless, unannounced entry of the police into Ap-pellee Richter’s residence was warranted by exigent circumstances and the “knock and announce” rule was not violated.1 We reverse and remand for further proceedings.

Our scope of review when considering the Commonwealth’s appeal of a suppression order is narrow:
[W]e must consider only the evidence of the... [defendant’s] witnesses and so much of the evidence for the prosecution, as read in the context of the record as a whole, remains uncontra-dicted. If the evidence supports the factual findings of the trial court, we are bound by such findings, and we may reverse only if the legal conclusions drawn therefrom are in error.
Thus, to determine the propriety of the court’s order in this case, we must discern whether the court’s findings are supported by the evidence adduced at the suppression hearing and, if so, whether the court concluded correctly [that officers improperly entered and seized illegal narcotics and drug paraphernalia from the residence at issue].

Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super.2000) (citation and quotation omitted).

¶ 2 The record reveals the following: At approximately 9:20 p.m. on May 19, 2000, Police Officer Christopher J. Forbes, Police Officer Thomas, and Sergeant J.R. Landis were on-duty in Buckingham Township when they received a 911 call indicating that a domestic dispute was in progress and that a female was holding a male in a residence at gunpoint. N.T. 8/22/00 at 3-4, 10. The trio proceeded to *1184the address given, 1939 Route 413 in Buckingham, and approached the door. Without knocking and announcing his identity, Sergeant Landis opened the door, which was unlocked, and Arthur Nicholas Gosin was found standing in the kitchen. N.T. 8/22/00 at 14, 17-18. Sergeant Landis ordered Gosin to remain standing, and Officers Forbes and Thomas proceeded into the residence. N.T. 8/22/00 at 15. Officer Forbes patted down Gosin for weapons, and the remaining officers proceeded to the bedroom where Appellee Richter was located.2 N.T. 8/22/00 at 5. Sergeant Landis asked Appellee Richter what had happened, and she indicated that Gosin assaulted her. N.T. 8/22/00 at 15. Sergeant Landis went back to the front of the residence to talk to Gosin and discovered a marijuana roach on a coffee table. N.T. 8/22/00 at 15.

¶ 3 Gosin was arrested in relation to the assault, and he was read his Miranda warnings. N.T. 8/22/00 at 7. Sergeant Landis requested consent to search the residence, and Gosin consented to the search. N.T. 8/22/00 at 7. Sergeant Lan-dis searched the premises and found drug paraphernalia, including a ceramic pipe and a bong, and a baggie of marijuana in the dresser and entertainment center. N.T. 8/22/00 at 17.

¶ 4 Appellee Richter was arrested, charged with possession of marijuana and drug paraphernalia, and filed a pre-trial motion seeking to suppress, inter alia, the physical evidence seized by the police. In her motion, Appellee Richter alleged that the evidence should have been suppressed because the police entered and searched the premises at issue without a warrant, probable cause, consent, or exigent circumstances. Following a hearing on the matter,3 the suppression court granted Appel-lee Richter’s motion to suppress, indicating that the knock and announce rule was violated and the police did not have exigent circumstances to make a warrantless entry into the residence. The Commonwealth filed a timely appeal to this Court, and the matter was originally assigned to a three-judge panel of this Court for disposition; however, this Court sua sponte referred this case for en banc review.4

¶ 5 On appeal, the Commonwealth contends that the suppression court erred in granting Appellee Richter’s motion to suppress, in which Appellee Richter contended that the police did not have a warrant, probable cause, consent, or exigent circumstances to enter and search the premises at issue.

¶ 6 Art. I, Sec. 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution protect against unreasonable searches and seizures. The expectation of privacy protected against the United States and Pennsylvania Constitutions has been held to be greatest in one’s home. See Commonwealth v. Gutierrez, 750 A.2d 906 (Pa.Super.2000). A warrantless search of a residence is per se unreasonable unless justified by a specific exception to the warrant requirement. Id.

The exigent circumstances exception to the warrant requirement recognizes *1185that some situations present a compelling need for instant arrest, and that delay to seek a warrant will endanger life, limb or overriding law enforcement interests. In these cases, our strong preference for use of a warrant must give way to an urgent need for immediate action.
In determining whether exigent circumstances exist, a number of factors are to be considered. Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is a strong reason to believe that the suspect is within the premises to be searched, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.
Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.

Commonwealth v. Santiago, 736 A.2d 624, 631-632 (Pa.Super.1999) (quotations omitted).

¶ 7 Applying the said factors to the case sub judice, we conclude that the entry by police into the subject premises was proper. First, the crime at issue was one of violence. See Id. That is, the police were investigating a domestic dispute where one person was reportedly holding another as a hostage at gunpoint. Second, the police reasonably believed that someone inside the house was armed. This conclusion is based on the fact that the police received a 911 call indicating that a gun was being used. Third, there was sufficient probable cause indicating that a violent domestic dispute, involving someone being held at gunpoint, was in progress. For example, the caller identified the address, people, and activity in detail, and, merely because there was no activity outside the house upon the police officers’ arrival, it does not necessarily follow that no probable cause existed. Fourth, there was a strong reason to believe that an armed suspect was within the premises entered. The 911 call at issue specifically provided the police with the address where the domestic dispute was occurring, and that someone was being held at gunpoint. Fifth, there was a likelihood that the suspect would escape if not swiftly apprehended. It was reasonable for the police to believe that a person who held another at gunpoint would flee from the scene or hold the victim as a hostage. Sixth, the entry by the police was peaceable. Sergeant Landis testified that he opened the unlocked front door and entered the premises with no confrontation by the occupants. Moreover, Sergeant Landis and Police Officer Forbes indicated that there were no confrontations while they searched the premises. “The fact that [the] entry was not forcible aids in showing the reasonableness of police attitude and conduct.” Santiago, 736 A.2d at 632 (quotation and quotation marks omitted). Seventh, the time of the entry was made during the early evening hours, at 9:20 p.m. Although it was presumably dark when the entry was made, the police responded immediately to the call and, the fact it was dark, “underscores the delay (and perhaps the impracticability of) obtaining a warrant, and hence serve to justify proceeding without one.” Id. (quotation and quotation marks omitted).

*1186¶ 8 With regard to the other factors which may also be taken into account, we conclude that there was a great danger to police and other persons due to Appellee Richter’s presence within the dwelling. For example, the police received a report that Appellee Richter was holding Gosin at gunpoint. If the police were required to wait for a warrant in order to enter the residence, the possibility of a “stand off’ or an armed suspect escaping into the neighborhood was a threat. Here, the domestic dispute involving the use of weapons necessitates a finding of exigent circumstances. As such, based on all of the aforementioned, we conclude that exigent circumstances existed permitting the police to enter 1939 Route 413 in Buckingham.

¶ 9 The Commonwealth next argues that the trial court erred in suppressing the evidence because the knock and announce rule was not violated in this case. We find that Appellee Richter has waived any contention with regard thereto.

¶ 10 We have carefully reviewed Appel-lee Richter’s motion to suppress and conclude that a knock and announce issue was not raised therein. Although testimony was elicited about the police officers’ failure to knock and announce during Gosin’s suppression hearing, which was incorporated into Appellee Richter’s case, we find that the issue has been waived because Appellee Richter failed to raise it in her suppression motion. See Commonwealth v. Whiting, 767 A.2d 1083 (Pa.Super.2001) (holding that failure to include issue in suppression motion results in waiver of issue). As such, any violation of the knock and announce rule can not provide a basis for the trial court’s suppression of the evidence against Appellee Richter.

¶ 11 Moreover, assuming, arguendo, that the issue was preserved because Appellee Richter incorporated Gosin’s notes of testimony, which specifically raised the knock and announce issue, we conclude that it is meritless. The knock and announce rule concerns police conduct in the execution of search warrants and requires police to “give notice of [their] identity, authority, and purpose... [prior to entering] the premises specified in the warrant, unless exigent circumstances requires [their] immediate forcible entry.” Commonwealth v. Piner, 767 A.2d 1057, 1059 (Pa.Super.2000) (citing Pa.R.Crim.P. 2007). The rule has no application to the within case in which there was no search warrant and in which the police entered the residence at issue without a warrant under exigent circumstances.

¶ 12 For all of the foregoing reasons, we reverse the suppression court’s order granting Appellee Richter’s motion to suppress, and we remand for further proceedings.5

¶ 13 Reversed; Remanded; Jurisdiction relinquished.

¶ 14 JOHNSON, J., files a dissenting opinion in which DEL SOLE, President Judge, joins.

. The Commonwealth has properly certified in its notice of appeal that the suppression order will terminate or substantially handicap the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Pa. R.A.P. 311(d).

. Mr. Gosin leased the residence in question, and Appellee Richter lived with him. N.T. 8/22/00 at 5.

. Gosin filed a suppression motion, and a hearing was held with regard thereto. The parties and the court agreed to use the notes of testimony from Gosin’s hearing in deciding Appellee Richter's motion to suppress.

.The trial court did not order the Commonwealth to file a statement pursuant to Pa. R.A.P. 1925(b), and no such statement was filed. However, the trial court filed an opinion.

. We note that, in her suppression motion, Appellee Richter not only challenged the police officers’ entry into the residence at issue, but she also challenged the seizure of the evidence, alleging that the police officers did not have consent to search once they were inside the house. However, the alleged lack of consent issue has been waived since Appel-lee Richter indicated during the November 27, 2000 hearing that she was raising the issues raised at Gosin's suppression hearing only. N.T. 11/27/00 at 4-6. The issue of consent was not raised during Gosin’s hearing. In any event, it is clear that the marijuana roach was found in plain view while the officers were properly investigating the domestic dispute. As for the seizure of the ceramic pipe, bong, and baggie of marijuana found in the entertainment center, we conclude the items were found pursuant to a legal, consensual search.