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COMMONWEALTH PENNSYLVANIA v. WARREN S. EICHELBERGER (04/28/86)

filed: April 28, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
WARREN S. EICHELBERGER, JR., APPELLANT



Appeal from the Judgment of Sentence of March 6, 1985 in the Court of Common Pleas of Franklin County, Criminal Division, No. 349-1983

COUNSEL

Philip S. Cosentino, Chambersburg, for appellant.

David W. Rahauser, Chambersburg, for Commonwealth, appellee.

Cavanaugh, Tamilia and Cercone, JJ.

Author: Cercone

[ 352 Pa. Super. Page 509]

On August 5, 1983, Troopers Weachter, Wilson, Bopp and Marchowski obtained a warrant authorizing a search of appellant's residence.*fn1 In the affidavit supporting the search warrant, no mention was made of appellant other than reference to the "Warren Eichelberger residence." The troopers staked out the residence for fifteen to twenty minutes and when an automobile arrived at the residence, the officers came onto the premises and requested the identity of the occupant of the house. Appellant identified himself and Trooper Weachter read the search warrant to him, and then escorted him inside.

Either simultaneous with, or prior to the reading of the warrant, Troopers Wilson and Bopp entered the home for

[ 352 Pa. Super. Page 510]

    the ostensible purposes of determining who was inside, to prevent the destruction of evidence, and for safety reasons. However, these troopers failed to observe the "knock and announce" rule as required by Pa.R.Crim.P. 2007(a), by entering the residence without giving or making reasonable effort to give notice of their identity, authority and purpose.

Appellant, upon entering the residence, sat down on the first chair and took off his boots. Trooper Weachter then asked him if he had any weapons on his person but did not receive any response. Weachter then told appellant to empty his pockets. Appellant took his wallet from his right rear pants pocket and a plastic bottle containing ten green pills and a small baggy containing white powder from his right front pants pocket and put the items on the kitchen table. Trooper Weachter, standing behind the appellant then inserted his hands into the appellant's rear pants pockets, found nothing, and then reached into both of the front pockets and removed two more baggies containing a white powdery substance.*fn2 A search of the house was conducted and approximately fifty-five minutes later, it yielded about $4,300 and some suspected marijuana seeds.

Appellant was arrested and charged with violating the Controlled Substance Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 et seq. On January 26, 1984, Judge Eppinger granted the suppression of all evidence seized from appellant's residence due to the violation of the "knock and announce" rule, but refused to suppress the evidence seized from his person. A non-jury trial was held on March 6, 1984 before Judge Keller, who found appellant guilty of possession and possession with intent to deliver. Appellant's post-trial motions were denied and sentence was imposed on March 6, 1985.

In this appeal, appellant contends that the lower court erroneously refused to suppress the evidence seized from his person, as the search was unreasonable and in violation

[ 352 Pa. Super. Page 511]

    of the fourth amendment. We conclude that all evidence seized from appellant's person should have been suppressed and ...


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