Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1972, Nos. 1033, 1034, and 1035, in case of Commonwealth of Pennsylvania v. William Easton.
David E. Auerbach, Assistant Public Defender, with him Kenneth P. Barrow, Public Defender, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him Vram Nedurian, Jr., Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., and Price, J., join in this dissenting opinion.
[ 231 Pa. Super. Page 400]
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.*fn1 Our Courts have considered a search "reasonable" when it is in compliance with 18 U.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. Although
[ 231 Pa. Super. Page 401]
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 make 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 ...