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UNITED STATES v. CONLEY

September 14, 1995

UNITED STATES OF AMERICA,
v.
JOHN F. "Duffy" CONLEY, Defendant.



The opinion of the court was delivered by: LEE

 September 14, 1995

 Before the Court is Defendant's Motion for New Trial (Document No. 1340), which is opposed by the United States of America ("Government") (Document No. 1380). The Court, having considered the briefs of counsel, the recent Supreme Court case of Wilson v. Arkansas, as well as other applicable law, the evidence presented at trial and specific portions of the transcript of the original suppression hearings, is now prepared to rule.

 I. FACTUAL BACKGROUND

 The facts underlying Defendant's conviction have been amply set forth in the previous opinions which have been rendered in this case by the Court of Appeals for the Third Circuit, and by the United States District Court for the Western District of Pennsylvania. *fn1" A brief summary of the case and the facts on which the motion is based is appropriate, however.

 On June 23, 1995, after approximately nine weeks of a second trial, *fn2" a jury returned a verdict of guilty against Defendant on count one of the indictment of Criminal No. 91-178 charging Defendant with conspiracy to operate an illegal gambling business and to launder the proceeds therefrom in violation of 18 U.S.C. § 371 and a verdict of guilty to count two of the same indictment charging him with operating an illegal gambling business in violation of 18 U.S.C. § 1955. *fn3" A pretrial motion to suppress physical evidence seized during various searches conducted on September 23, 1988 by state officers pursuant to state warrants was previously denied, and such evidence was introduced at trial.

 On July 12, 1995, Defendant filed a Motion for New Trial. The Motion for New Trial was not accompanied by supporting memorandum. On August 4, 1995, Defendant filed his "Memorandum in Support of Defendant's Motion for New Trial" (Document No. 1384). Defendant's motion alleges that the Court erred in two respects: (1) in denying Defendant's pretrial motion for suppression of physical evidence, which sought suppression of all physical evidence obtained pursuant to the September 23, 1988 search of 930 Saw Mill Run Boulevard on the basis of the officers' failure to knock and announce their presence prior to entry, United States v. Conley, 856 F. Supp. 1010 (W.D. Pa. 1994), and (2) the Court's denial of Defendant's Motion for Reconsideration. *fn4"

 a. Pretrial Motion for Suppression of Physical Evidence and Defendant's Motion New Trial

 On January 7, 1994, the Court denied Defendant's motion for suppression and upheld the legality of a search conducted on September 23, 1988, by the Pittsburgh police at a business establishment located at 930 Saw Mill Run Boulevard in Pittsburgh, Pennsylvania. United States v. Conley, 856 F. Supp. 1010 (W.D. Pa. 1994). The Court concluded that "the state officers who executed the search warrant for 930 Saw Mill Run Boulevard on September 23, 1993 (sic) comported with the reasonableness requirements of the Fourth Amendment in entering the 930 Saw Mill Run premises without knocking and announcing their presence and authority." Id. at 1032.

 On May 22, 1995, during the pendency of the second Conley trial, the United States Supreme Court issued its opinion in Wilson v. Arkansas, holding that the "common-law 'knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment." Wilson, 131 L. Ed. 2d 976, 115 S. Ct. 1914, 1916 (1995). In his motion for new trial, Defendant requests the Court to reconsider its conclusion upholding the 1988 search of the 930 Saw Mill Run premises in light of the Wilson v. Arkansas decision.

 b. Government's Response to Defendant's Motion for New Trial

 The Government contends that the recent Wilson opinion does not provide any basis for the Court to modify or reverse its earlier conclusion regarding the 1988 search conducted at the Saw Mill Run premises. Quoting the Wilson opinion, the Government asserts that "the [Supreme] Court left to the lower courts 'the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment.' Most critically, the Supreme Court was concerned with entry into a dwelling, not a commercial establishment." Government's Response, at 3 (quoting Wilson, 115 S. Ct. at 1919).

 II. THE "KNOCK AND ANNOUNCE" PRINCIPLE

 As the Superior Court of Pennsylvania explained, the knock and announce rule is derived from English common law: "the 'knock and announce' rule's origins predate the United States Constitution. It was born in English Common Law and was subsequently adopted in America." Commonwealth v. Curtin, 427 Pa. Super. 224, 628 A.2d 1132, 1137 (Pa. Super. Ct. 1993). The apparent genesis for the knock and announce rule in the common law of England, as observed by the King's Bench, was to preclude unnecessary damage to a dwelling house "for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; ...." Kemal ...


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