room. This Court finds that Inspector Pongrace knew a) that Charles Nolan had reason to avoid the police-i.e. to avoid capture for parole violation; b) that Charles Nolan had successfully avoided capture for nearly two years; c) that part of Mr. Nolan's method of avoiding detection was to use aliases-including Rocco Favorite; d) that Mr. Nolan's conviction was for importing marijuana from a foreign country; e) that Mr. Nolan had previously stayed in temporary living quarters under assumed names; f) that Mr. Nolan had acquired an address in a foreign country, Canada, while a fugitive; g) that the motel room had three potential exits, one door and two windows; h) that parking was very close to the motel room; i) that the possibility existed that Mr. Nolan might not be in his room; j) that only two law enforcement officials were on the premises at that time; k) that it would take a great deal of time and effort to break down the steel door; l) that positions for two officers to observe the room without being detected by persons coming and/or going were unavailable; and, m) additional assistance was over an hour away, in Pittsburgh. Based on these facts it would be reasonable for a trained police officer in Inspector Pongrace's position to assume 1) that Mr. Nolan would be likely to try and escape; 2) that if he was in his room and tried to escape he would likely be successful in the short run because of the limited number of officers on the premises in relation to the potential number of exits and because of the relative proximity of the parking lot; and 3) if he was not in his room he would probably see them waiting for him and escape; and 4) that if Mr. Nolan escaped he would likely be successful in the long run through his use of aliases and transient living quarters and travel to foreign countries. Based on such circumstances, this Court concludes that an exigent circumstance, fear of escape, existed prior to the first entry. This Court also finds it of some significance, that despite having an exigent circumstance to permit noncompliance with section 3109, Inspector Pongrace still complied with the spirit of that law announcing his authority and purpose simultaneously with the entry. The Court finds that adhering to the spirit of section 3109 when technical compliance was impossible served the same ends that section 3109 was designed to advance: 1) protection of privacy; 2) mitigation of violence; and, 3) prevention of needless destruction of property by a forced entry. United States v. Kane, 637 F.2d at 977. Significantly, the brevity of the incursion and the decision not to seize the suspected narcotics in plain view further indicate the officers' efforts to conform to the spirit of section 3109.
There can be little question that in actually entering the room on the first occasion the officers had probable cause to believe that Mr. Nolan was in the room. The statements of Mrs. McSpadden established a solid possibility that Charles Nolan was in the room and any further confirmation that might have been deemed necessary was provided by the sound of the television. While Mr. Nolan was not in fact present, this does not negate the existence of probable cause to believe he was there prior to the entry.
When Inspector Pongrace and Deputy Holland entered Room 48, they observed items which they immediately suspected to be narcotics and related paraphernalia. These objects are admissible under the "plain view" rule of Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) for the officers were lawfully present, discovered these objects inadvertently and the evidentiary nature of the objects was immediately apparent.
Since the government has indicated that it intends to introduce more than the limited number of objects observed on the first entry into evidence, the Court must also consider the legitimacy of the second entry into Room 48. Two significant factual developments distinguish the second entry from the first. One change was that the officers now had reason to believe that Room 48 contained narcotics and related paraphernalia, substances capable of easy destruction. Secondly, three additional law enforcement officers had arrived to assist the two officers who were initially on the scene. This last factual development provided a sufficient number of officers to remain hidden from view but still watchfully await Mr. Nolan's return. Moreover, this number of officers was now able to cut off all of Mr. Nolan's potential avenues of escape. Thus, the chances of a successful escape by Mr. Nolan were so reduced as to no longer amount to a significant possibility. Ergo, the exigent circumstance rooted in the possibility of escape evaporated. See, People v. Rogers, 59 Ill.App.3d 396, 16 Ill.Dec. 902, 904, 375 N.E.2d 1009, 1011 (1978) and People v. Polito, 42 Ill.App.3d 372, 355 N.E.2d 725 (1976) (both considering and rejecting existence of exigent circumstances to avoid compliance with knock and announce rule of Ker v. California, supra, when police had large dwelling with many doors and windows surrounded).
While the arrival of additional officers acted to end one exigent circumstance justifying noncompliance with section 3109, the officers' observation of the suspected narcotics provided the essential factual predicate to another exigent circumstance-i.e. reasonable belief that compliance with section 3109 would lead to the destruction of evidence. Inspector Pongrace knew
a) that Mr. Nolan was a fugitive with a prior drug conviction; b) that Room 48 was a typical motel room with the bathroom immediately to the right as one would enter the room; and c) that there were objects in the room which he suspected were narcotics. Based on this specific knowledge and his lengthy experience in law enforcement, a reasonable man in like circumstances would have believed that a person, like Mr. Nolan, with a prior narcotics conviction and still at large a fugitive, would be sufficiently alerted by announcement of even the police officers' identity that he would attempt to destroy the suspected narcotics and related paraphernalia by flushing them down the toilet.
Moreover, a reasonable person in Inspector Pongrace's position, knowing the physical layout of Room 48, and the position of the bathroom, would also know that he would be unable to distinguish whether or not noises he might hear from inside the room indicated the person was headed in the "wrong direction"8-to the bathroom to destroy evidence-or in the "right direction"-to open the door to admit the officers since both the "right" and "wrong" directions were the same. This Court therefore concludes that execution of the second entry was justified by exigent circumstances. Again this Court notes that despite the technical violation of section 3109, the officers made a substantial effort to comply with the spirit of that statute by announcing their authority before being met by significant resistance which temporarily absorbed their energies.
This Court also finds that Mr. Nolan was not permitted to return to his room by the officers as a pretext for seizing evidence. The officers established a stakeout designed to intercept Mr. Nolan before he could reach his room. They had sound reasons for desiring to arrest him outside of his room. The fortuitous choice of a parking space by Mr. Nolan was the only circumstance that caused the plan to fail. The Court therefore holds that the fruit of the second search need not be suppressed.
The knock and announce rule that has been the subject of this discussion is applicable to federal law enforcement officials pursuant to section 3109, as first discussed at length by the Supreme Court in Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) and to state law enforcement personnel pursuant to the rule first enunciated in Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). Without significant discussion of its choice of remedy, the Supreme Court in Miller held that suppression of evidence was required for a violation of section 3109. In Ker, the Supreme Court stated that that case was the first case that had reached the Supreme Court since Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (suppression of evidence acquired for state violations of rights protected under Fourth and Fourteenth Amendment) which afforded a suitable opportunity for further explication of that holding in light of intervening experience. Ker 374 U.S. at 25, 83 S. Ct. at 1625. While the Supreme Court did not require that the evidence be suppressed in Ker, the Court's reasoning indicates that if the evidence were found to have been obtained improperly, suppression of evidence would have been required. Later, in Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968) the Court held that even the most highly technical violation of section 3109 would inevitably lead to the suppression of the evidence.
Since the decision of these cases by the Supreme Court the exclusionary rule has been the subject of more extended scrutiny by the Supreme Court, other courts and legal scholars. In light of this scrutiny this Court believes that it is necessary to consider as an alternative ground for decision whether evidence must inevitably be suppressed when a violation of some rule designed to protect privacy interests may have been technically,
albeit, unwittingly violated. Assuming arguendo that exigent circumstances did not exist to justify either the first or second entry into Room 48, then the issue before this Court is whether the physical evidence must still be suppressed. For the reasons which follow this Court believes this question must be answered in the negative.
Decisions of the Supreme Court extending over the last two decades have consistently examined whether application of the exclusionary rule is warranted by examining the deterrent effect that suppression of evidence would have on the incidence of police misconduct. Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966, 22 L. Ed. 2d 176 (1969); Terry v. Ohio, 392 U.S. 1, 12-14, 88 S. Ct. 1868, 1875-1876, 20 L. Ed. 2d 889 (1968); Linkletter v. Walker, 381 U.S. 618, 636-37, 85 S. Ct. 1731, 1741, 14 L. Ed. 2d 601 (1965); Mapp v. Ohio, 367 U.S. 643, 657-59, 81 S. Ct. 1684, 1692-93, 6 L. Ed. 2d 1081 (1961); and Elkins v. United States, 364 U.S. 206, 217-22, 80 S. Ct. 1437, 1444-46, 4 L. Ed. 2d 1669 (1960). In the last decade, deterrence of police misconduct has become the Court's central, if not sole, concern. Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 2849-51, 69 L. Ed. 2d 744, 755-56 (1981); New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 2862-64, 69 L. Ed. 2d 768, 773-75 (1981); Michigan v. DeFillippio, 443 U.S. 31, 36-38, 99 S. Ct. 2627, 2631-32, 61 L. Ed. 2d 343 (1979); Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067 (1976); United States v. Janis, 428 U.S. 433, 447-55, 96 S. Ct. 3021, 3028-32, 49 L. Ed. 2d 1046 (1970); United States v. Peltier, 422 U.S. 531, 535-39, 95 S. Ct. 2313, 2316-18, 45 L. Ed. 2d 374 (1975); Michigan v. Tucker, 417 U.S. 433, 445-50, 94 S. Ct. 2357, 2364-67, 41 L. Ed. 2d 182 (1974); United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974). The most significant aspect of this question has really become whether or not any deterrence actually occurs. It is far from clear whether this goal is served by the exclusionary rule. See, e.g., Robbins v. California, supra -- - U.S. at -- - -- & note 3, 101 S. Ct. at 2849-51 & note 3, 69 L. Ed. 2d at 755-56 & note 3 (concurring opinion of Powell, J.); id. -- - U.S. at -- , 101 S. Ct. at 2851, 69 L. Ed. 2d at 757 (dissenting opinion of Rehnquist, J.); Stone v. Powell, supra, 428 U.S. at 496-502, 96 S. Ct. at 3053-3056 (concurring opinion of Burger, C. J.); id. at 536-42, 96 S. Ct. at 3071-74 (dissenting opinion of White, J.); Coolidge v. New Hampshire, 403 U.S. 443, 490-91, 91 S. Ct. 2022, 2050, 29 L. Ed. 2d 564 (dissenting opinion of Harlan, J.) and Government of the Virgin Islands v. Rasool, 657 F.2d 582 (3d Cir. 1981) (concurring opinion of Adams, J.). See also, Canon, The Exclusionary Rule: Have Critics Proven that it Doesn't Work?, 62 Jud. 398 (1979); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. of Chi.L.Rev. 665 (1970); Schlessinger, The Exclusionary Rule: Have Proponents Proven that it is a Deterrent to Police?, 62 Jud. 404 (1979). With the inability to establish any clear relationship between the exclusion of evidence illegally obtained and the incidence of police misconduct, greater concerns about the high social cost of the routine application of the exclusionary rule to all infractions of the Constitution have been voiced. Recent developments have suggested that these social costs could be reduced by recognizing a good faith exception to the exclusionary rule.
The social cost of the exclusionary rule is generally explained in the following way: physical evidence is often highly probative of guilt and remains so no matter how it is obtained;
if such evidence is suppressed it may be difficult, if not impossible, to learn the truth in a trial and to convict those who are indeed transgressors of law. This permits the guilty to go free without any corresponding benefit to innocent persons who may have suffered a similar invasion of their rights, and without any personal punishment of the police wrongdoer. All of this leads the general public to believe that technicalities are more important than justice to the courts and leads to the erosion of public support in the ability of the courts to appropriately handle criminals. Conceivably, a sufficient erosion of public confidence would lead to instances of vigilantism with its attendant evils.
In addition, several pragmatic difficulties with the current rule have been articulated. It is said that because police officers are not personally responsible for improper conduct, since the exclusionary rule operates indirectly, there is no incentive for the police to learn the proper standards or to adhere to standards that are seen by police to be at odds with their personal interests or those of their department. Perhaps a more significant difficulty is the complaint that even officers who try their best cannot predict the eventual judgment of the courts on the legitimacy of their earlier conduct.
Finally, the exclusionary rule may suffer horrendous side effects, prompting police officers to "twist" their testimony to justify their actions.
In contrast to these problems defenders of the wide scope of the exclusionary rules argue that the rule was adopted to stop misconduct that "shocked the conscience", and that the exclusionary rule has not unduly hampered police work but has instead led to greater use of search warrants. Finally while conceding that deterrence of police misconduct has not been established, defenders of the universal application of the exclusionary rule contend no other remedy exists which holds any promise of deterrence.
While this Court remains sensitive to these objections, it cannot agree that universal and routine application of the exclusionary rule is now required. This Court believes that the opinions rendered in Government of the Virgin Islands, supra (Adams, J. concurring); United States v. Williams, 622 F.2d 830, 840 (Gee and Vance, JJ.) id. at 847 (Hill, J. concurring); Richmond v. Commonwealth, -- - S.W.2d -- (Ky.App.1981) and People v. Adams, 53 N.Y.2d 1, 422 N.E.2d 537, 439 N.Y.S.2d 877 (1981) point to the limitation of the exclusionary rule through a "good faith exception" which is applicable to the case before this Court. Why a law enforcement officer acting in good faith requires deterrence appears to me to clearly indicate that application of a good faith exception is long overdue.
Before articulating this Court's understanding of the good faith exception, it seems appropriate to place the statement of the exception in proper context. To do so it is important to realize a good faith exception rests on three factors. First, police officers are not expert lawyers. They may lack information about the very latest cases or they may have legitimate doubts how known rules will be applied in the cases the officer confronts. Second, some times officers confront novel situations, where the law itself is unclear. Third, some times officers confront situations where legally important facts are unknown and are practically unknowable. In such cases officers should be encouraged to perform their important duties with confidence that their actions will not jeopardize the prosecution which they expect to follow.
The recognition of a good faith exception to the exclusionary rule in such cases does not jeopardize constitutional values. In a world where the law is sometimes doubtful and an officer's knowledge about important facts is sometimes circumscribed, public expectations of official integrity cannot demand impossible standards of foresight or omniscience. Neither can judicial rules deter constitutional infringements where the officer, in good faith, has no reason to suppose his act to be wrongful in the circumstances he confronts.
The growth of a good faith exception seems to be a necessary corollary of the modern notion that constitutional doctrine is evolved in a case by case method, and does not simply "found" in pre-existing authorities.
Of course any good faith exception must rest on a finding that the officer is in fact well trained.
Constitutional values would be ill-served by an extension of such a rule to officers with pure hearts but empty heads. This would be true even in the imaginable case where a well-trained officer would have experienced serious doubt. The serious public concern to deter plainly unlawful police conduct seems to this Court to permit no equivocation on this point.
Because this is a relatively recent development, this Court feels constrained not to articulate the ultimate boundaries of the good faith exception, but instead states the rule cautiously in terms of the peculiar circumstances of the present case. When an officer is cognizant of the current law which defines the limits of his authority to act and he acts in a manner consistent with the spirit of that law or in a manner in which a reasonable man in like circumstances would view as consistent with that law, then physical evidence which was seized by virtue of an incidental incursion on a defendant's rights need not be suppressed when there appears to be no deterrent effect on the incidence of future police misconduct from suppression.
In this case the Court is convinced that Inspector Pongrace was in fact well-trained, and that he confronted serious uncertainties of fact and of law which bring him within the legitimate scope of the good faith exception to the exclusionary rule. Factually, before the first entry, Inspector Pongrace knew that the defendant was very probably to be found in a ground floor motel room with windows which could permit an easy escape. He also knew that the defendant was a fugitive, and he inferred, justifiably, that the defendant would escape arrest if he could do so. Inspector Pongrace reasonably believed that he might need Deputy Holland's aid in the room to deter resistance or flight when he entered the room. This ruled out stationing Deputy Holland by the windows. What he did not know was the state of the windows; were they a ready avenue of escape, or were they permanently closed so that they could not feasibly be used as an exit? In making the first entry, Inspector Pongrace acted within the scope of the good faith exception.
At the time of the second entry, the situation had changed. The arrival of additional officers enabled the inspector to be sure that a window escape could not succeed. But Inspector Pongrace had reason to believe that the defendant would destroy the materials on the table by flushing them down the toilet if the officers announced their presence. This reasonable concern justified the second entry as one accomplished in good faith.
Moreover, there was a second uncertainty which justified the first entry. The law relating to the "exigent circumstances" exception to the "knock and announce" rule was uncertain. In evaluating whether exigent circumstances existed prior to either the first or second entry, Inspector Pongrace was faced with a situation in which a precise rule of law has never been articulated. Extensive research by this Court has disclosed no case in which an exigent circumstance to make a no-knock entry existed because even mere announcement of identity by the police would result in an effort to escape by someone with the motive and a known propensity to flee or an effort to destroy evidence by an experienced narcotics violator who had an opportunity to destroy narcotics in moments. The most analagous case is United States v. Manning, 448 F.2d 992 (2d Cir. 1971). In that case, like most others in the no-knock area, escape and destruction of evidence were feared from noise of scurrying in the apartment after mere announcement of identity. That mere announcement was a trigger is clear from the results of a five second wait by the officers, three escapes by the fire escape, two deaths from jumping out the window and the arrest of only one person in the act of escape. Since Inspector Pongrace was faced with an unknown rule of law, his actions must be governed by the spirit of the knock and announce rule, or whether a reasonable man in a like situation would have acted the same way. There is no need to discuss either of these rules at length. Since this Court has previously held that the entries were both lawful, even if that decision is incorrect, the inspector's interpretation of the situation must be considered at least a reasonable one, leading to reasonable actions. Moreover this Court has already taken note that the inspector endeavored to comply with the spirit of the rule by announcing himself as he entered. This effort served the threefold purposes of the knock and announce rule, safety, reduction of property damage, and protection of privacy.
The foregoing constitutes findings of fact and conclusions of law in accordance with Fed.R.Crim.P. 12(e) in support of its decision to deny the motion to suppress on September 28, 1981.