No. 1309 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, No. 79062401.
Lawrence J. Hracho, Reading, for appellant.
George Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
Price, Wieand and Hoffman, JJ. Hoffman, J., concurs in result. Price, J., did not participate in the consideration or decision of this case.
[ 295 Pa. Super. Page 69]
In this appeal from a judgment of sentence imposed for possession of controlled substances, appellant contends that the contraband was seized as a result of an unlawful search and that his motion to suppress, therefore, should have been granted. We disagree and, consequently, affirm the judgment of sentence.
At 9:45 p. m. on April 18, 1979, Reading City Police were present at 927 North Ninth Street, Reading, for the purpose of executing a valid search warrant for an apartment consisting of the second and third floors of the building. One of the officers, Francis Drexler, smelled a strong odor of marijuana which he determined to be emanating from the first floor apartment. He also heard raucous noises which led him to believe that a party was in progress in the apartment. He advised his superior, Detective Sergeant McGuire, of the odor. After the search of the upstairs apartment, which took approximately one hour, Officer Drexler, together with Sergeant McGuire and Officer Melvin Rosenberg, went down the stairs to the first floor apartment to ascertain the names of the occupants. Drexler knocked on the
[ 295 Pa. Super. Page 70]
door, and moments later the door was opened, revealing a group of persons surrounded by drug paraphernalia, marijuana cigarettes and butts. Officer Drexler announced his identity, entered the apartment, and approached one of the group who was holding several clear plastic bags of marijuana. The other two officers entered and observed Michael Pullano, the appellant, seated in a chair beside the door, holding a plastic vial which contained a pill and a small plastic bag. When he saw the police, appellant attempted to drop the vial but was prevented from doing so by Officer Rosenberg. Appellant was placed under arrest, and a search of his person revealed a pipe containing marijuana residue.
Appellant was charged with possession of marijuana and cocaine. He filed a motion to suppress, which was denied following hearing. At the subsequent trial a jury found him guilty on both counts. Post trial motions were dismissed, and sentence was imposed. Appellant argues that an illegal, warrantless search took place and that this required a suppression of the physical evidence found in his possession.
The officers at the scene had smelled a strong odor of burning marijuana and had heard noises suggesting that a party was then in progress. These were circumstances suggesting that criminal activity was underway within their presence. They were not required to ignore that activity. To "ignore the obvious aroma of an illegal drug which [they were] trained to identify" would have been a "dereliction of duty." Commonwealth v. Stoner, 236 Pa. Superior Ct. 161, 166, 344 A.2d 633, 635 (1975). By knocking on the door to make inquiry they were not acting unreasonably. They could properly and in the exercise of their duties investigate what was obviously a "pot" party. See: Commonwealth v. Merbah, 270 Pa. Superior Ct. 190, 411 A.2d 244 (1979). Indeed, at this point they already had probable cause to make an arrest.
Once the door was opened in response to a knock, the police officers in the hallway could readily observe numerous items of contraband. Where an officer who has not intruded into a ...