No. 475 April Term, 1976, Appeal from the Order of January 6, 1976, of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7507647.
Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.
Alan Frank, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision in this case.
[ 254 Pa. Super. Page 556]
This is an appeal by the Commonwealth from an order suppressing evidence secured by the execution of a search warrant. The record discloses the following facts. On September 25, 1975, state police officers obtained a warrant to search the premises located at apartment 909, Washington Plaza Apartments, Pittsburgh. Two officers, accompanied by the building superintendent, went to the apartment in question. The superintendent knocked on the door, stated his name in answer to a question from within the apartment, and said that he had come for the purpose of maintenance. In response, the appellee opened the door some twelve to eighteen inches. The officers stepped forward, announced their identity and purpose and displayed their badges and the warrant. One of the troopers put his foot in the doorway and placed his hand on the door to prevent the appellee from closing it. There was no resistance and after making the announcement, the officers entered.
The issue before this court is whether the use of subterfuge by the police to entice an individual to open a door so that a search warrant may be served violates the Fourth and Fourteenth Amendments of the Constitution, when the police, once the door is opened, properly state their identity, purpose and authority and then enter, without force, to execute the warrant. This precise question has not been answered in Pennsylvania. In Commonwealth v. Riccardi, 220 Pa. Super. 72, 283 A.2d 719 (1971), this court reversed the lower court's order dismissing the defendant's application to suppress under somewhat similar circumstances. In Riccardi, the superintendent was also used to gain admission and the defendant opened the door. The police, however, unlike those in the instant case, forced their way through the door without announcing their identity, purpose and authority. The announcement was not made in Riccardi until after they had forced their way into the apartment. In the instant case, once the door was opened there was no resistance. In fact, the record indicates that the appellee made no attempt to close the door.
[ 254 Pa. Super. Page 557]
In Commonwealth v. Easton, 231 Pa. Super. 398, 332 A.2d 448 (1975), this court held that unless the police inform an occupant of the purpose for which they seek entry, the occupant is not required to admit them; and absent exigent circumstances they have no right to make a forcible entry. That holding is not apposite to the instant case, where no forcible entry was made, and announcement of identity, purpose and authority was made before entry and entry was without resistance. See also, Commonwealth v. Fisher, 223 Pa. Super. 107, 296 A.2d 848 (1972).
The announcement rule was adopted in Pennsylvania after the decision in U. S. ex rel. Ametrane v. Gable, 276 F.Supp. 555 (E.D.Pa.1967), affirmed, 401 F.2d 765 (3rd Cir. 1968). Ametrane, supra, involved a ruse similar to that employed in the case before us. Unlike the present case, however, when the door was opened, the police, wearing plain clothes, failed to announce authority or purpose but merely barged into the dwelling. That was the ground for reversal. The court, however, said that: "Finally, even if the officers' use of force could be justified before the relator opened his door, the officers should certainly have stated clearly their identity and purpose after the door was opened and before they entered the house." 276 F.Supp. at 559. (Emphasis in original). This was exactly what was done in the instant case.
The Pennsylvania courts have relied upon 18 U.S.C. § 3109 as a reasonableness standard in determining the constitutionality of the execution of searches. Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971). See also, Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). 18 U.S.C. § 3109 provides:
"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 . . ."
The Supreme Court of the United States has not spoken on the deception issue. However, in U. S. v. Sabbath, 391 U.S. 585, 88 S.Ct. 1755, 20 ...