Commonwealth v. Lopez

HOFFMAN, Judge,

dissenting:

I respectfully dissent. The majority finds that the officers reasonably believed that a risk existed that appellee had been alerted to their presence and that evidence would be destroyed. Consequently, they find that exigent circumstances did exist justifying a warrantless entry. I disagree.

*363The majority asserts that the officers reasonably concluded that the male who left the house knew the identity of the police officers and could have warned those inside. These assertions are without support in the record. Sgt. Perez, who was at most one car length from the man who fled, testified at both the suppression hearing and the preliminary hearing that the male did not knock on the door. N.T., 8/21/91 at 45-48. Moreover, there is no evidence in the record that the male knew that the individuals in the car were police officers or that he alerted those inside in any way. Thus, I do not find it reasonable to conclude that there was a substantial risk that those inside the house were alerted to the presence of the officers and thus, that exigent circumstances existed justifying a warrantless entry into the house.

In addition, I find the cases cited by the majority to be distinguishable. In Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992), an undercover officer made a drug purchase at a house and was identified as a police officer by another individual in close proximity to the house. Specifically, an unidentified male said “Hello Officer” or words to that effect when the Officer passed him on the sidewalk, about three to five feet from the house. Id., 411 Pa.Superior Ct. at 591, 602 A.2d at 353. Our court found that it was reasonable for the officer to believe that his identity had been revealed and that consequently there was a possibility of the destruction of evidence. Here, there was no evidence that the officer’s identity had been revealed.

In Commonwealth v. Frank, 413 Pa.Super. 273, 605 A.2d 356 (1992), an arrest took place in broad daylight directly in front of the window of the house under surveillance. Our court held that there was an objective basis for the officers to believe that a risk existed that those inside were alerted to their presence. Specifically, our court held that when the officers drew their weapons and handcuffed an individual in front of the apartment of the appellant, there was a strong possibility that appellant became alerted to their presence. Id. 413 Pa.Superior Ct. at 279, 605 A.2d at 359. Here again, *364there was no evidence in the record of such police conduct that would have alerted the people inside the house of police presence in the area.

Because I find that no exigent circumstances existed to justify a warrantless entry into the house I would affirm the order of the suppression court.