Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 1776, in case of Commonwealth of Pennsylvania v. John Clemson.
Robert F. Kelly, for appellant.
Carolyn Engel Temin, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.
[ 234 Pa. Super. Page 193]
Appellant contends that evidence seized by the police pursuant to a legally sufficient search warrant should have been suppressed because the warrant was improperly executed.
On August 20, 1972, the Security Administrator of the Franklin Institute discovered that four antique rifles were missing from a display case. The rifles ranged in age from 120 to 150 years. On September 8, 1972, detectives from the District Attorney's office went to the apartment of John Clemson, the appellant. Prior to approaching Clemson's apartment, the detectives informed the manager of the apartment complex in which appellant lived of their identity and purpose. He gave them a key to the apartment. One of the detectives knocked on the apartment door and announced "Police, we have a search warrant." The detective knocked a second time and again announced his identity and purpose. Following the second knock, the detectives waited ten seconds, and then used the passkey to gain entrance to the apartment. Upon entering, the police observed appellant's wife emerging from one of the bedrooms and appellant's daughter asleep on the living-room couch. The police identified themselves to Mrs. Clemson, showed her the warrant, and proceeded to search the apartment. The detectives discovered four antique rifles wrapped in a gray blanket under the appellant's bed. A jury found appellant guilty of receiving stolen goods.
It is well-established that police officers are required to give notice of their identity and purpose before attempting to enter private premises. Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).*fn1 The fact
[ 234 Pa. Super. Page 194]
that the police were in possession of a passkey and did not have to resort to physical force in order to gain entry does not make their intrusion any less "forcible." In Sabbath v. United States, 391 U.S. 585 (1968), the Supreme Court held that the use of "force" is not an indispensable element of the federal announcement statute.*fn2 The Pennsylvania Supreme Court has stated that "the constitutional standards appear to be those embodied in 18 U.S.C. § 3109." Commonwealth v. Newman, supra at 444. This Court has held that the announcement requirement remains even though the appellant's door is unlocked with a passkey. Commonwealth v. McCloskey, 217 Pa. Superior Ct. 432, 272 A.2d 271 (1970). The announcement doctrine is designed to protect the privacy afforded by the Fourth Amendment; an intrusion is no less an intrusion "whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or . . . open a closed but unlocked door." Sabbath v. United States, supra, at 590. Thus, "[a]n unauthorized entry by means of a passkey is equivalent to a forcible entry." Commonwealth v. Cerulla, 223 Pa. Superior Ct. 24, 27, n.5, 296 A.2d 858 (1972).
There is a second well-established rule in regard to the propriety of forcible entry on the part of the police. Even where the police duly announce their identity and purpose, as the detectives did in the present case, forcible
[ 234 Pa. Super. Page 195]
entry is "still unreasonable and hence violative of the Fourth Amendment if the occupants of the premises . . . are not first given an opportunity to surrender the premises voluntarily." Commonwealth v. DeMichel, supra, at 561, 277 A.2d at 163. See also, United States ex rel. Ametrane v. Gable, 276 F. Supp. 555 (E.D. Pa. 1967). The issue presented in this case is reduced, therefore, to whether the ten-second delay ...