Commonwealth v. Easton

Opinion by

Jacobs, J.,

In this case appellant challenges the execution of a search warrant used by police to conduct a search of his apartment. The search uncovered certain narcotic drugs for which appellant was charged with illegal possession. We find that the execution of the search warrant was improper and reverse the lower court’s decision which held the search to be lawful.

The federal constitution prohibits “unreasonable” searches by police.1 Our Courts have considered a search “reasonable” when it is in compliance with 18 TJ.S.C. §3109 (1969) which states: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . .” Commonwealth v. Dial, 445 Pa. 251, 254, 285 A.2d 125 (1971); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). Therefore, prior to making a forcible entry the officer must, absent exigent circumstances, announce his identity and purpose, and give the occupant a reasonable opportunity to surrender his privacy. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). In Commonwealth v. Newman, supra, the police banged on the door, announced their identity, but failed to state their purpose. The Pennsylvania Supreme Court held on those facts that absent exigent circumstances the police had no right to make a forcible entry after they had been refused admittance.

In the present case, the police armed with a search warrant knocked on the door of appellant’s apartment, announced their identity, and requested admission. Al*401though the purpose of their visit was obviously to execute the search warrant, they only told the occupant that they wanted to see “Bobby.” We find that a proper announcement of purpose by the police would have been that they had a search warrant. Similar announcements were found proper in Commonwealth v. Dial, supra, and Commonwealth v. DeMichel, supra. Unless the police informed the occupant of the purpose for which they sought entry, the occupant was not required to admit them; and absent exigent circumstances, they had no right to malee a forceful entry. See Miller v. United States, 357 U.S. 301 (1958).

The Commonwealth cites Commonwealth v. Ametrane, 422 Pa. 83, 221 A.2d 296 (1966), seeking to justify the intrusion in the present case. In Ametrane, the Pennsylvania Supreme Court permitted the forceful entry by police even though they failed to announce their identity or purpose before they entered. The defendant in that case, however, was granted federal relief on his habeas corpus petition by a United States district court which found that his constitutional rights had been violated. United States ex rel. Ametrane v. Gable, 276 F. Supp. 555 (E.D. Pa. 1967), aff’d, 401 F.2d 765 (3d Cir. 1968). The standards set forth in United States ex rel. Ametrane v. Gable, supra, were subsequently adopted by the Pennsylvania Supreme Court in Commonwealth v. Newman, supra.

Furthermore, there is no evidence that appellant already knew of the purpose of the police or that the officers believed that the destruction of evidence was being attempted. See Ker v. California, 374 U.S. 23 (1963); Miller v. United States, supra. The mere lapse of time is not an exigent circumstance justifying the failure of police to follow the proper procedure. Had the safety of the police been threatened or had their senses disclosed any unusual activity leading them to reasonably believe that evidence was being destroyed or *402a suspect was escaping, we would not hesitate to excuse their failure to follow the proper procedure. However, the facts of this case do not show any of these “exigent circumstances.” Instead, they show that the police failed to announce their purpose and were accordingly denied admittance by the occupant. The refusal to admit police who have improperly requested entrance cannot be considered an “exigent circumstance.”

The evidence obtained by the search should have been suppressed as the fruit of the initial illegality. Wong Sun v. United States, 371 U.S. 471 (1963).2

Judgment reversed and new trial granted.

U. S. Const. amend. IV.

Appellant properly preserved this issue for appeal. Prior to trial appellant contested the execution of the search warrant and the lower court concluded that the warrant was properly executed. Once appellant raised this issue, the burden shifted to the Commonwealth to establish at the suppression hearing the admissibility of the challenged evidence. Pa. R. Crim. P. 323(h). Accordingly, the burden is not on appellant to establish the inadmissibility of the evidence but instead on the Commonwealth to establish its admissibility. Appellant did not waive the issue by failing to ash the officers whether they announced their purpose.