Appeal from the Judgment of Sentence of January 29, 1987, in the Court of Common Pleas of Erie County, Criminal Division, at No. 1071 of 1986.
James K. Vogel, Public Defender, Erie, for appellant.
Paul Susko, Assistant District Attorney, Erie, for Com., appellee.
Beck, Johnson and Hester, JJ. Beck, J., files a concurring opinion.
[ 369 Pa. Super. Page 399]
On December 9, 1986, appellant, John Heidelberg, was convicted following a non-jury trial of possession of a controlled substance. He was sentenced on January 29, 1987, to a fine, costs and seven to thirty days imprisonment. Appellant contends that the trial court erred in not suppressing evidence obtained as the result of an allegedly illegal search warrant. We affirm.
[ 369 Pa. Super. Page 400]
On June 20, 1986, the Erie County police obtained a search warrant to search James Heidelberg, his home, and "all occupants therein." The probable cause affidavit sets forth the following facts and circumstances justifying the search of the described persons and premises. A reliable informant observed James Heidelberg selling cocaine "to other persons at [the] house." He also observed "a large quantity of cocaine" for sale at the residence and in James Heidelberg's possession within the preceding twenty-four hours. Other reliable informants corroborated the fact that James Heidelberg sold controlled substances in his house. A night search was authorized as a result of the averment that the evidence could be easily destroyed or moved if police surveillance were detected.
The following stipulated facts surrounding the execution of the warrant were submitted at the suppression hearing. Erie police executed the search warrant at 12:45 a.m. on June 21, 1986. When appellant answered the door, police saw three males seated around a coffee table upon which the following objects were lying: a propane tank commonly used for freebasing cocaine, a razor blade, a marijuana pipe, and a patina of white powder. The police searched all the individuals present and found a small quantity of hashish on appellant. A small quantity of cocaine was found on one of the other males, but no other controlled substances were discovered on the premises.
The Commonwealth has stipulated that appellant's search was conducted solely pursuant to the authority contained in the warrant for police to search "all occupants" of the apartment. N.T., 10/3/86, at 5-6. This stipulation and the fact that the Commonwealth argues no other basis to justify the search have foreclosed us from considering whether the search could be upheld on other grounds.
We must therefore determine whether a search warrant authorizing a search of "all the occupants" at a given location violates the fourth amendment's particularity requirement that "no Warrants shall issue, but upon probable cause . . . particularly describing the place to be searched,
[ 369 Pa. Super. Page 401]
and the persons or things to be seized."*fn1 It is a question that has never been addressed by an appellate court in this jurisdiction*fn2 or by the United States Supreme Court.
There are two approaches in analyzing the constitutionality of "all persons present" warrants. One is to strike such warrants as general warrants repugnant to the fourth amendment's specificity requirement. E.g., Johantgen v. Commonwealth, 571 S.W.2d 110 (Ky.App. 1978).
We believe the better-reasoned approach,*fn3 and the one adopted by the majority of other jurisdictions,*fn4 is found in the cases which analyze each such warrant individually in order to determine whether an "all persons present" warrant was justified under the particular circumstances present when the warrant issued. Illustrative of this approach are two New Jersey cases ...