Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Robert L. Simmons, Pittsburgh, for appellee.
Brosky, Cirillo and Popovich, JJ. Brosky, J., files dissenting opinion.
[ 302 Pa. Super. Page 87]
This is an appeal by the Commonwealth from the grant of appellee's, Roy L. Hamlin's, Motion to Suppress on April 21, 1981, by the Court of Common Pleas of Allegheny County. We reverse and remand.*fn1
[ 302 Pa. Super. Page 88]
The facts, as garnered from the record, consist of the following: About 10:00 A.M. on September 5, 1980, Lieutenant Charles E. Coughlin, a City of McKeesport police officer, drafted an application for a search of the appellee's residence. At 1:30 P.M., the application was taken to the District Magistrate. The Magistrate approved the warrant, which authorized the affiant to search the premises described "as soon as practicable but in no event later than 8:00 A.M. . . . Sept. 8, 1980." After securing the warrant, Lt. Coughlin informed the search team that it would be executed at 7:00 A.M. the next morning, September 6th. At the scheduled time, the police met at the station and then made their way to the appellee's premises, arriving at the location about 7:45 A.M. At first, Lt. Coughlin knocked on a set of storm doors on the exterior portion of the two-story apartment building and identified himself. Upon receiving no response, the officer entered a vestibule area and knocked on another door, again giving his identity. Still, there was no answer. After waiting for a period of time, Lt. Coughlin opened the main door to the building and went to appellee's door, which was the first one on the right. He knocked 10 or 12 times, and even kicked on the bottom of
[ 302 Pa. Super. Page 89]
the door, while "holler[ing] 'Police, police, we have a search warrant.'" (RR. 23a) Lt. Coughlin received no answer, yet he heard voices inside the apartment. The officer, for the next three minutes, continued to knock, all the while announcing his identity and purpose. When his efforts to obtain access to the apartment proved fruitless, he utilized a key secured from the landlord to gain entry. Once inside, the police observed the appellee and a Ms. Dreker (a co-defendant) in the room. Lt. Coughlin identified himself and gave the appellee a copy of the warrant. A search of the premises produced a quantity of cocaine and resulted in the occupants being arrested.
A suppression hearing was held in the instant case. At that time, Lt. Coughlin recounted how the search warrant was prepared on September 5, 1980 and issued by the Magistrate that same day, around 2:00 P.M. However, the defense pointed out that the face of the warrant indicated to the contrary, i.e., that it was issued on the 6th day of September, 1980, at 8:00 A.M. To clarify the matter, the Magistrate testified that he erred when filling in the spaces provided for on the document as to the date and time the warrant was issued. The witness attributed this misfeasance to the fact that when the police informed him that "they were going to search the place the next morning at eight o'clock . . . . [he] made the mistake. [He] put the 6th day, eight o'clock, when he signed it[,]" (RR. 42a), instead of September 5th at 2:00 P.M.
The suppression court disbelieved the Magistrate's version that the error was the product of "an honest mistake." Instead, the court found "that the warrant was deliberately post-dated rather than misdated." Consequently, all evidence seized pursuant to the invalidity issued warrant was suppressed. This appeal followed.
The Commonwealth asserts that the court abused its discretion in concluding from the evidence adduced at the suppression hearing that the date which the Magistrate noted on the search warrant was a purposeful act. ...