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HomeMy WebLinkAbout97-1995 CriminalCOMMONWEALTH VS. CALVIN L. BROWN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA '97-1995 CRIMINAL CHARGE: UNLAWFUL DELIVERY OR MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCHEDULE II C. S. AFFIANT: PTL. JAMES FRENCH IN RE: MOTION TO SUPPRESS BEFORE HESS, J. ORDER AND NOW, this day of July, 1998, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, William I. Gabig, Esquire Senior Assistant District Attorney William Braught, Esquire Assistant Public Defender Ke?fi A. Hess, J. / :rim COMMONWEALTH VS. CALVIN L. BROWN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1995 CRIMINAL CHARGE: UNLAWFUL DELIVERY OR MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCHEDULE II C. S. AFFIANT: PTL. JAMES FRENCH IN RE: MOTION TO SUPPRESS BEFORE HESS, J. OPINION AND ORDER On October 8, 1997, detectives from the Cumberland County Drug Task Force applied for a warrant to search the residence of Robert Nocho at 36 Richard Avenue, Shippensburg Township, Cumberland County. The warrant was issued by President Judge George E. Hoffer and served on October 9,1997 at 12:30 PM. As a result of the search, crack cocaine was found concealed in a nylon stocking and secreted under the insulation in the basement ceiling. The defendant, Calvin L. Brown, was arrested and gave post Miranda statements admitting to ownership and intent to sell the cocaine. When the officers approached the property to execute the search warrant, they were met by the owner, Robert Nocho. Mr. Nocho recognized one of the detectives from a previous meeting. The detective informed Mr. Nocho that they had a search warrant and needed to search his residence. The other officers identified themselves as police officers and then proceeded immediately to search the house. At trial, Mr. Nocho testified that the defendant hid in the basement when he realized that the police had arrived. The police also searched the defendant's maroon Ford Ranger, which was listed in the search warrant and affidavit of probable cause. 97-1995 CRIMINAL The defendant was then arrested and taken to the police station, where he signed a written waiver of his Miranda Rights and agreed to talk to police. The defendant then admitted to ownership and intent to sell crack cocaine. In his suppression motion, the defendant challenges the manner of the execution of the search warrant. Search warrants are to be executed pursuant to Pennsylvania Rule of Criminal Procedure 2007. Rule 2007 provides, in relevant part: 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. 42 Pa.C.S.A. Section 2007(a). This rule requires police to "knock and announce" prior to executing a search warrant. "The purpose of this 'knock and announce' rule is to prevent violence and physical injury to the police and occupants, to protect an occupant's privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry." Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056 (1987). (citing Commonwealth v. McDonnel, 512 Pa. 172, 516 A.2d 329 (1986).) Various exceptions to the rule have developed, such as when "the police are virtually certain that the occupants of the premises already know their purpose." Id. (citing Commonwealth v. Newman, 429 Pa. 441,240 A.2d 795 (1968)). "These exceptions to the 'knock and announce' rule fulfill the purpose of the rule in that entry is accomplished with a minimum of danger to officers and occupants or damage to the 2 97-1995 CRIMINAL premises." Id.___~. at 97, 534 A.2d at 1056-1057. The defendant alleges that the police failed to comply with Rule 2007(a). When the police arrived, they announced who they were and why they were at Mr. Nocho's residence. Additionally, Mr. Nocho recognized one of the detectives. The purpose of Rule 2007 was accomplished in that entry was accomplished without danger to anyone or damage to the premises and after proper notice to the owner. The defendant also alleges that the search of his vehicle was illegal because no probable cause existed to justify the search. However, no evidence was seized as a result of this search. Therefore, this claim is without merit, t The defendant also alleges that the search warrant was overbroad. Specifically, he challenges the search warrant because it allows police to search for "other controlled substances." The affidavit of probable cause states that the affiant believes that the items listed in the search warrant would be located at Mr. Nocho's residence based on his surveillance and past experience with drug dealers. The warrant sets out the officer's past experience in considerable detail. In any event, no "other controlled substances" were found. For these reasons, the defendant's claim that the warrant is overbroad is without merit.2 ~Even if evidence were seized fi.om the truck and probable cause did not exist to allow the search, we believe the doctrine of severance would allow the evidence seized fi.om the house to be admitted. Commonwealth v. Bagley, 408 Pa. Super. 188,596 A.2d 811 (1991). 2This issue begs the question whether, in any event, we have the authority to review the sufficiency of probable cause in this case. The warrant sub judice was issued by a member of this court. The law is well established that it is improper for a trial judge to overrule an order of another judge of the same court in the same case absent new evidence. See Ohio Casualty Group 97-1995 CRIMINAL Finally, the defendant claims that the written waiver of his Miranda rights was not voluntary, intelligent, or knowing, because he had previously requested to contact an attorney and was ignored by police. He specifically charges that he requested an attorney from a non- uniformed officer. At trial, every police officer refuted this charge. We resolve these issues of credibility in favor of the Commonwealth and find that the defendant's waiver of his Miranda rights was knowing and voluntary. ORDER AND NOW, this t 3 ~ day of July, 1998, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. William I. Gabig, Esquire Senior Assistant District Attomey William Braught, Esquire Assistant Public Defender BY THE COURT, K~~ss, j~./~'- :rlm v. Argonaut Ins. Co.., 136 Pa. Cmmwlth. 522, 583 A.2d 872 (1990); Turner v. Kohl, 420 Pa. Super. 507, 617 A.2d 20 (1992). 4