ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-00163-01).
Before: Becker, Alito, and Roth, Circuit Judges.
Robert C. Stiver appeals his conviction for a drug offense, contending that the district court erroneously denied his motion to suppress evidence seized from his residence and automobile pursuant to a state warrant. Stiver argues: (1) that the warrant was not supported by probable cause as that term is understood in Pennsylvania law, (2) that the state officers who executed the warrant violated Pennsylvania's "knock and announce" rule, and (3) that the officers exceeded their authority by answering his telephone and speaking with some of his drug customers when they called to place orders during the execution of the warrant. We hold that Stiver's suppression motion was properly denied, and we therefore affirm the judgment of the district court.
On November 20, 1991, a Pennsylvania magistrate issued a warrant to search Stiver's apartment, automobile, and person, as well as the person of the woman with whom he was living. The warrant application was based on an affidavit co-signed by two municipal police officers. The affidavit stated that on or about November 1 a reliable informant had told the officers that Stiver was selling heroin from his apartment. The affidavit explained that "this informant knows this to be true because he/she has been to that location on several occasions and has purchased heroin for his/her personal use, from Stiver as recently as a week prior to giving this information to affiants." Furthermore, the affidavit also stated that "on or about 11/18/91 this informant was in Robert Stivers (sic) residence . . . and saw Stiver selling heroin to others." The affidavit added that on this occasion Stiver "offered to sell heroin to the informant" and told the informant to return if the informant subsequently wanted to make a purchase. In addition, the affidavit stated that, according to the informant, Stiver drove a particular automobile and "uses this vehicle to sell his heroin from." The affidavit elaborated that "the informant said that he has seen Stiver keep his heroin in the trunk of his vehicle when he is in his apartment to keep the police from finding it in case his apartment is raided." Moreover, the officers stated in the affidavit that they had observed this automobile in front of Stiver's residence "on a daily basis" and that they had ascertained that Stiver had a criminal record for prior drug offenses.
After the warrant was issued, approximately 12 state and local officers went to Stiver's apartment at about 11:20 p.m. to execute the warrant. One of the officers knocked on the door and announced, "Police officers. Search warrant." The officer then heard "hurried, heavy" footsteps moving away from the door. Consequently, five to ten seconds after announcing their presence, the officers broke down the door. The officers then seized heroin from Stiver's pocket and from that of an associate. The officers also seized 13 packets of heroin found in the residence and 270 packets from Stiver's automobile, which was parked in front of the building. The officers remained in the apartment for approximately one hour and twenty minutes. During that time, the telephone rang ten to twelve times, and the officers answered the phone. The callers generally asked for "Bugsy," which was Stiver's nickname. The officers generally identified themselves using a different first name and asked the callers, "What do you need?" The callers then usually responded by asking for things, such as "bags," that were identified at trial as references to drugs.
Stiver was originally arrested on state charges, but he was subsequently charged in a one-count federal indictment with possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He moved to suppress the fruits of the search of his residence and automobile, but after a hearing the district court denied the motion. The court held that the search warrant affidavit contained "timely and specific" information and that it established probable cause to search the apartment and car. The court further held that the warrant had been properly executed. The court found that the police had knocked and announced their presence and that "forced entry was appropriate . . . due to the exigent circumstances . . ., namely the hurried steps that were heard by the police officers and the delay in opening the door."
After a jury trial, Stiver was convicted and sentenced and took the current appeal.
Stiver argues that the validity of the search warrant and of the method in which it was executed must be Judged under Pennsylvania law, since the warrant was applied for, issued, and executed by state officers, and since he was originally charged with state offenses. Stiver contends that under Pennsylvania law the warrant was not supported by fresh probable cause concerning the presence of drugs in his car, and he notes that the Pennsylvania Supreme Court has declined to adopt the good faith exception set out in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Stiver likewise argues that the execution of the search warrant must also be assessed under Pennsylvania law.
Stiver's argument that Pennsylvania rather than federal law governs the validity of the search in this case is foreclosed by our decision in United States v. Rickus, 737 F.2d 360, (3d Cir. 1984). In that case, the defendant argued that the search of the trunk of his car should be tested under Pennsylvania, not federal, law. We disagreed, holding that "evidence obtained in accordance with federal law is admissible in federal court -- even though it was obtained by state officers in violation of state law." 737 F.2d at 363-64.*fn1 We added:
We are not insensitive to the claim that we should not encourage state officials to violate principles central to the state's social and governmental order. But sanctions already exist to control the state officer's conduct. He is "punished" by the exclusion of evidence in the state criminal trial, and the state can, if it chooses, enforce its policies with respect to its own officers by permitting civil suits. We are persuaded that the additional deterrent effect to be gained from excluding this ...