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decided: April 28, 1978.



Vram Nedurian, Jr., Assistant District Attorney, Newtown Square, with him Ralph B. D'Iorio, Assistant District Attorney, Media, for Commonwealth, appellant.

Carmen P. Belefonte, Media, for appellee, Perry.

August T. Groover, Media, submitted a brief for appellee, O'Hanlon.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision in this case.

Author: Price

[ 254 Pa. Super. Page 551]

Appellees Vincent L. Perry and Joseph W. O'Hanlon were arrested on September 23, 1975, for pool selling and bookmaking*fn1 and conspiracy.*fn2 Suppression applications were filed, and after a hearing on March 24-27, 1976, the lower court ordered the suppression of all evidence obtained during a search of the premises located at 1376 Market Street, Linwood, Pennsylvania. This order was based on the lower court's finding that the police entered the building before announcing their identity and purpose. The Commonwealth has appealed from this order of suppression.*fn3

On September 23, 1975, Pennsylvania State Police troopers, armed with a search warrant, proceeded to a two story commercial building housing the Summit Beef Company. They approached a side entrance to the structure. The lower court found that although this door was unlocked during business hours it was not open to the public in general. On the date in question, the police had observed at least ten persons, without knocking, enter the establishment through this door. When the officers arrived, they noticed that the door was ajar one to three inches. They looked into the room, but no one could be seen. One of the officers knocked three times, waited approximately five seconds and

[ 254 Pa. Super. Page 552]

    then pulled the door further open. From outside the premises, the troopers announced their identity and purpose to an employe, who was working in the room at a point beyond the troopers' original line of vision, and inquired as to the whereabouts of appellee-Perry. The troopers entered the room and were directed by the employe to another area of the building.

When the officers approached Perry's office, they observed, through an open doorway, that both appellees were sitting near a desk. The troopers read the warrant to the two men and subsequently seized $7,500 in currency, an adding machine, approximately 400 football pool tickets, tally sheets and various other gambling paraphernalia.

The lower court found that the police properly identified themselves and stated their purpose, but suppressed the evidence because the troopers "opened the door without permitting the occupants to voluntarily relinquish the premises."*fn4 We hold that the lower court erred in suppressing

[ 254 Pa. Super. Page 553]

    this evidence.*fn5

Pa.R.Crim.P. 2007(a) provides, in part, that,

"[a] law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose . . . unless exigent circumstances require his immediate forcible entry." (Emphasis added).

First, we note that our research has failed to uncover any Pennsylvania appellate court decision directly on point. Clearly, in the instant case there were no exigent circumstances which justified an immediate forcible entry. It is also clear, as the lower court found, that once the outer door to the structure had been fully opened, the troopers reasonably attempted to give notice in accordance with the Rule. The question involved in the instant case is whether the trooper's act of pulling the door, which was already partially open, constituted a "forcible entry" within the meaning of the Rule.

In Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), the Supreme Court noted that "force" is not always essential to the invocation of the announcement rule. "An unannounced intrusion into a dwelling . . . is no less an unannounced 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." 391 U.S. at 590, 88 S.Ct. at 1758 (footnote omitted). Conspicuous by its absence, is the situation with which we are now confronted.*fn6

[ 254 Pa. Super. Page 554]

The primary purposes of the rule are to protect the privacy of the occupant and to prevent situations which are conducive to violent confrontations between the occupant and individuals who enter without proper notice. Sabbath v. United States, supra; Commonwealth v. Clemson, 234 Pa. Super. 191, 338 A.2d 649 (1975); see also People v. Peterson, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187 (1973). In the instant case, appellees' legitimate expectation of privacy was limited because the door to the premises was open. Although the door was not completely open, it was open wide enough to permit a visual examination of a large portion of the room. Clearly appellees had not done everything which was reasonably within their power to preserve their privacy. See, e. g., Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972).

Moreover, the troopers' actions were reasonable and not conducive to a violent confrontation. Having visually examined a large portion of the room, they were unsure whether anyone was present within range to hear their announcements. When they received no response, they pulled the door further open but did not enter until they had fully informed the occupant of their identity, authority and purpose. By acting as they did, the troopers substantially increased the probability that someone would hear their announcement. The troopers acted in a patently reasonable manner. Under all the circumstances, we hold that the troopers did not forcibly enter the premises in question in violation of Pa.R.Crim.P. 2007.

The order of the lower court is reversed, and the case is remanded for further proceedings.

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