No. 00847 Pittsburgh 1983, Appeal from the Order June 28, 1983 in the Court of Common Pleas of Allegheny County, Criminal No. CC 8301386 A.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Verdell Dean, Pittsburgh, for appellee.
Rowley, Olszewski and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 340 Pa. Super. Page 566]
This is an appeal from a lower court order granting a motion to suppress. The Commonwealth contends that the warrantless search of appellee, Willie Kendrick, was lawful and, therefore, the lower court erred in suppressing the evidence. We agree and reverse the lower court's suppression order.
The facts of this case may be quickly summarized. On January 11, 1983, narcotics detectives received information from an informant regarding the sale of heroin at the residence of Buzzy (Craig Owens) and Mary Emma. The detectives used this information, along with information gathered from their own surveillance of the house, to secure a search warrant for the residence. The warrant was issued and executed on January 14, 1983.*fn1
Arriving at the residence, the detectives knocked at the door but received no answer. The detectives knocked
[ 340 Pa. Super. Page 567]
again, identified themselves and again received no response. However, one detective testified that he could see people inside the house running past the front door toward the left hand side of the structure. The detectives knocked and identified themselves one final time; again receiving no response, they forcibly entered the residence. Immediately upon entry, the detectives were confronted by a man (later identified as Craig Owens) wielding a shotgun. Fortunately, the gunman retreated into a bedroom without firing at the detectives. The detectives then forcibly entered the bedroom. Inside the bedroom, the detectives found appellee, Owens, and two women; they also found the shotgun under a bed. A thorough search of the residence resulted in the further discovery of three juveniles hiding in a closet in another part of the house.
After securing the premises, the detectives directed the four adults from the bedroom into the living room and told them to lie down on the floor. The police detectives then proceeded to search the four for weapons. As one of the detectives approached appellee to conduct the weapons search, he noticed something black in appellee's left hand. Although appellee attempted to conceal the object by tucking his hand under his body, the item was seized and the weapons search conducted. The object in appellee's hand
[ 340 Pa. Super. Page 568]
turned out to be a black plastic film vial. The detective immediately opened the vial and found 27 foil packets containing heroin. Appellee was arrested and charged with possession of a controlled substance and possession with intent to deliver.
On May 16, 1983, appellee moved for suppression of the film container and its contents claiming that the items were the product of an unlawful search and seizure.*fn2 A hearing on the motion to suppress was held on June 28, 1983 before the Honorable George H. Ross. Judge Ross granted the motion holding that the evidence was (1) not subject to the search warrant; (2) not seized pursuant to a Terry*fn3 frisk; and (3) not within the detective's plain view. This appeal by the Commonwealth followed.*fn4
The Fourth Amendment to the United States Constitution protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The Amendment protects two different interests of the citizen -- the interest in retaining the possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, ...