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08/22/97 COMMONWEALTH PENNSYLVANIA v. JOSEPH

August 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSEPH CARLTON, APPELLANT; COMMONWEALTH OF PENNSYLVANIA, APPELLEE V. DONALD CARLTON, APPELLANT



Appeal from the Judgment of the Superior Court, entered on August 3, 1995 at No. 29PHL94 Affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, entered on December 21, 1993, at 92-04-3437-3439. JUDGE(S) BELOW: CCP - Hon. Steven R. Geroff / Superior - DEL SOLE, BECK, CERCONE, JJ.

Appeal from the Judgment of the Superior Court entered on August 3, 1995 at No. 27PHL94 Affirming the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, entered on December 21, 1993, at 92-04-3440-3444. JUDGE(S) BELOW: CCP - Hon. Steven R. Geroff / Superior - DEL SOLE, BECK, CERCONE, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. *fn1 Madame Justice Newman files a Dissenting opinion which is joined by Mr. Justice Castille.

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT *fn1

MR. CHIEF JUSTICE FLAHERTY

DECIDED: August 22, 1997

These consolidated cases are appeals from orders of the Superior Court affirming the judgments of sentence of Joseph Carlton and Donald Carlton after they were convicted of drug trafficking offenses. This court granted the appellants' petitions for allowance of appeal to determine whether the police violated the "knock and announce" rule when they executed a valid search warrant and seized crack cocaine, a handgun, ammunition, and drug paraphernalia.

II. FACTS AND PROCEDURAL HISTORY

On January 28, 1992, Philadelphia police purchased crack cocaine from a house at 3229 Fontain Street in Philadelphia from Joseph Carlton. Based on this purchase, police secured a search warrant for 3229 Fontain Street on January 30, 1992. Later that day, police conducted another cocaine purchase, this time from Donald Carlton, using a marked ten dollar bill. Shortly after the purchase, police saw Donald Carlton leave the house. They radioed a team of backup officers, who were waiting to execute the search warrant. The backup officers arrested Donald Carlton and immediately thereafter executed the search warrant.

In executing the warrant, the officers knocked on the front door and shouted, "Police." After waiting twenty to thirty seconds and receiving no response, the police, using a battering ram, battered the door down. The officers did not announce their purpose before entering the house. Upon entering the house, police arrested Joseph Carlton, who was sitting in the dining room with two vials of crack cocaine in his possession. In various parts of the house, police also found a .38 caliber revolver and ammunition, a bag containing 147 additional vials of crack cocaine, a Wells Fargo identification card for Joseph Carlton showing an address of 3229 Fontain Street and a Pennsylvania Department of Welfare card in the name of Donald Carlton. The trial court stated: "Identification showing that the defendants used 3229 Fontain Street as their address was found in the house." Slip Op., trial court, at 11.

Prior to trial, both appellants moved for suppression of all physical evidence seized in the house, alleging that the police lacked probable cause to search the house and that the police violated the appellants' rights when they executed the search warrant. The appellants did not move for suppression of the drugs they sold to police. Appellants were tried together in a non-jury trial. After denying the motions to suppress, the trial court convicted the appellants of the following offenses:

Joseph Carlton:

One count of possession with intent to deliver a controlled substance, Section 13(a) (30) of the Drug Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, No. 64, § 13(30), 35 P.S. § 780-113(a)(30),

One count of possession of drug paraphernalia, Section 13(a)(33) of the Drug Act, 35 P.S. § 780 - 113 (a) (33) and

One count of criminal conspiracy, 18 Pa.C.S. § 903.

Donald Carlton:

Two counts of possession with intent to deliver a controlled substance, Section 13 (a)(30) of the Drug Act, 35 P.S. § 780-113(a)(30),

One count of possession of drug paraphernalia, Section 13(a)(33) of the Drug Act, 35 P.S. § 780-113(a)(33), and

Criminal conspiracy, 18 Pa.C.S. § 903.

Joseph Carlton was sentenced to one to two years imprisonment for possession with intent to deliver a controlled substance, followed by concurrent two-year terms of probation for criminal conspiracy and possession of drug paraphernalia. Donald Carlton received a sentence of twenty-one to forty-two months imprisonment for the first count of possession with intent to deliver a controlled substance, a concurrent term of twenty-one to forty-two months imprisonment for a second count of possession with intent to deliver a controlled substance, followed by two concurrent terms of two years probation for criminal conspiracy and possession of drug paraphernalia.

On appeal, the Carltons argued that the police violated their rights because the search warrant affidavit did not state probable cause and because the police violated the knock and announce rule. *fn2 The Superior Court panel, with one Judge Dissenting, affirmed the judgments of sentence, holding that exigent circumstances justified the officers' immediate entry into the house without announcing their purpose. This court granted both appellants' petitions for allowance of appeal to determine whether the police violated the knock and announce rule.

III. Donald Carlton

Donald Carlton complains that the police violated his constitutional rights when they entered 3229 Fontain Street without announcing that their purpose was to execute a search warrant. He was arrested on the street near the house and was not inside the house when police entered.

In Pennsylvania, defendants charged with possessory offenses have automatic standing to litigate a suppression motion. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). In Commonwealth v. Gordon, 546 Pa. 65, 683 A.2d 253 (1996) and Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993) police conducted warrantless entries into abandoned buildings which were occupied by the defendants, where they seized contraband. We held that although defendants charged with possessory offenses have standing to file a motion to suppress the materials seized by police, they must, as part of their case for suppression, meet the threshold requirement of demonstration of a privacy interest which was "actual, societally sanctioned as reasonable, and justifiable in the place invaded . . . ." Peterson, 535 Pa. at 497, 636 A.2d at 617. In Gordon we explained that in order to establish a legally cognizable expectation of privacy, a defendant must establish "either a possessory interest, a legitimate presence or a characteristic of ownership. . . from which society could recognize an expectation of privacy." Gordon, 546 Pa. at 73, 683 A.2d at 257. In short, in order for a defendant accused of a possessory crime to prevail in a challenge to the search and seizure which provided the evidence used against him, he must, as a threshold matter, establish that he has a legally cognizable expectation of privacy in the premises which were searched.

Donald Carlton, therefore, must establish that he had an expectation of privacy in the premises entered by police. The trial court stated: "Identification showing that the defendants used 3229 Fontain Street as their address was found in the house." Slip Op. at 11. This statement, which is tantamount to a finding of fact, establishes that Donald Carlton had the requisite privacy interest in the premises. *fn3 Having established that, he may challenge the propriety of the search and seizure.

IV. JOSEPH CARLTON

In Joseph Carlton's case, the sole issue is whether the trial court should have ordered suppression of evidence based on an alleged violation of the knock and announce rule when the police executed a search warrant for the house. Because the Commonwealth's evidence established that Joseph Carlton was present when police entered the house and that he received mail at that address, there is sufficient evidence of record to establish that he had a reasonable and legitimate expectation of privacy in the house at 3229 Fontain Street. Both Joseph and Donald Carlton, therefore, have raised a legally cognizable challenge to the manner in which the search warrant was executed.

V. CHALLENGE TO THE SEARCH AND SEIZURE

Rule 2007 of the Pennsylvania Rules of Criminal Procedure, Pa. R.Crim.P. 2007, sets forth the manner in which the police may enter premises to execute a search warrant:

Rule 2007. MANNER OF ENTRY INTO PREMISES

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.

(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority, and purpose, unless exigent circumstances require his immediate forcible entry.

(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Thus, unless there are exigent circumstances, Rule 2007 requires that police officers executing a search warrant should make a reasonable effort to knock and announce their identity and purpose and then wait a reasonable amount of time ...


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