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COMMONWEALTH PENNSYLVANIA v. LARRY WALLACE (11/30/81)

filed: November 30, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LARRY WALLACE



No. 417 Pittsburgh, 1980, Appeal from the Order granting Appellee's Motion to Suppress entered on April 24, 1980 in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC8000529A.

COUNSEL

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Vincent C. Murovich, Pittsburgh, for appellee.

Spaeth, Shertz, and Montgomery, JJ.

Author: Shertz

[ 293 Pa. Super. Page 74]

This is an appeal by the Commonwealth*fn1 from an order granting Appellee's, Larry Wallace, motion to suppress evidence. The Commonwealth advances two arguments: (1) that because the "Knock and Announce" Rule is inapplicable to unoccupied dwellings, the lower court erred in invoking the rule in the instant case, and (2) that even assuming the applicability of the "Knock and Announce" Rule, the police

[ 293 Pa. Super. Page 75]

    conduct in question was not a violation thereof. We disagree and affirm.

The relevant facts are as follows. Based upon information received from an informant, Margaret Perez, McKeesport police obtained a warrant to search Larry Wallace's apartment for drugs and drug related items. The police proceeded to Appellee's apartment, knocked on the door, and waited several minutes without getting a response. They then went to look for Appellee in a bar that he owned and operated on the first floor of the apartment building. Because Appellee was not there, a police officer asked the barmaid to telephone certain of Appellee's relatives to find out whether they could give the police access to Appellee's apartment. She did so, and Appellee's mother, sister and brother-in-law arrived at the bar soon thereafter. Although none had a key to the apartment, Appellee's brother-in-law entered Appellee's apartment through a window and unlocked the door from the inside. Without knocking or identifying themselves, the police then entered the apartment and searched it. Twenty-one manila envelopes containing marijuana and one pill containing methaqualone were seized.

Appellee was subsequently arrested and charged with four counts of promoting prostitution,*fn2 one count of corrupting the morals of a minor,*fn3 one count of criminal conspiracy*fn4 and three counts of violating the Controlled Substance, Drug Device and Cosmetic Act.*fn5 Following his arrest, Appellee filed an omnibus pre-trial motion to suppress. The motion was granted because the Commonwealth offered no testimony

[ 293 Pa. Super. Page 76]

    to indicate that the police officers ever announced their identity or their purpose before forcibly entering Appellee's apartment. The lower court, therefore, found that the police had violated Pa.R.Crim.P. 2007, the "Knock and Announce" Rule. It is from that order that the Commonwealth has appealed.

Pa.R.Crim.P. 2007 provides in pertinent part that in executing a search warrant, a police officer "shall, before entry, give or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant unless exigent circumstances require his immediate forcible entry." See Commonwealth v. Burstin, 259 Pa. Super.Ct. 584, 393 A.2d 979 (1978). It is undisputed that there was no announcement of purpose in the instant case. Nor were there any exigent circumstances that would justify entry without proper announcement. Rather, the Commonwealth advances the argument that the "Knock and Announce" Rule did not apply in the instant case. The Commonwealth reasons as follows. Both at common law and today, the "Knock and Announce" Rule serves three goals. It is aimed at "reducing the potential for violence to both the officers and occupants of the house, guarding against needless destruction of private property and furthering respect for individual privacy." Commonwealth v. Duncan, 257 Pa. Super.Ct. 277, 285-86, 390 A.2d 820, 825 (1978) (citing United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1973)). Because ...


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