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HomeMy WebLinkAbout94-1401 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 94-1401 CRIMINAL TERM V. : CHARGES: (A) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (B) AGGRAVATED INDECENT : ASSAULT CARL EDWARD SHIPE : (C) INDECENT ASSAULT OTN: E965601-0 : (D) CORRUPTION OF MINORS IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. ORDER OF COURT AND NOW, this 17th day of January, 1995, upon consideration of the motion to suppress, as amended, contained in Defendant's Omnibus Pre-Trial Motion, following a hearing and for the reasons stated in the accompanying Opinion, the motion to suppress is DENIED to the extent that it seeks suppression of all items seized in Defendant's home on the ground of a violation of Pennsylvania Rule of Criminal Procedure 2007 (knock and announce rule), and SUSTAINED with respect to those items enumerated in Finding of Fact 16 for which a foundation showing evidentiary relevance to the present child molestation charges is not first proffered to the trial court. BY THE COURT, J. Wesley Oler,/Jr~., J.' ~ Travis N. Gery, Esq. Sr. Assistant District Attorney Michael Schwoyer, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender : rc COMMONWEALTH : IN TEE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 94-1401 CRIMINAL TERM V. : : CHARGES: (A) INVOLUNTARY DEVIATE : SEXUAL INTERCOURSE : (B) AGGRAVATED INDECENT : ASSAULT CARL EDWARD SHIPE : (C) INDECENT ASSAULT OTN: E965601-0 : (D) CORRUPTION OF MINORS IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This case arises out of alleged incidents of sexual molestation of a female child by Defendant. For disposition at this time is a motion to suppress contained in an omnibus pretrial motion of Defendant.~ The motion to suppress relates to a search of Defendant's home conducted by police. The motion is based upon, first, an alleged violation of the knock-and-announce rule and, second, by virtue of an amendment to the motion at the hearing, an alleged lack of authority in the warrant for the seizure of some of the items taken. The hearing on the motion was held on Friday, January 13, 1995. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. ~ A second part of the omnibus pretrial motion, relating to witness competency of the alleged victim, has been ruled upon by separate order. NO. 94-1401 CRIMINAL TERM FINDINGS OF FACT 1. Defendant is Carl Edward Shipe, an adult male. 2. On or before August 2, 1994, Defendant was incarcerated on the present charges of involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault and corruption of minors in connection with alleged incidents involving a female child in 1994. 3. On August 2, 1994, Pennsylvania State Trooper Nolan Brewbaker obtained search warrants for Defendant's residence at 37 East North Street, Carlisle, Cumberland County, Pennsylvania, and for his automobile. 4. The items sought in the home were identified in the application for a warrant as follows: "Any and all physical evidence to include but not limited to photographs, writings, readings, recordings, both visual and audio, directories and/or indexes, both written and computer generated, and all other physical eVidence related to child molestation." The items sought with respect to the automobile were identified in the application for a warrant as follows: "Any and all physical evidence to include photographs, writings, readings and all other physical evidence related to child molestation." 5. The affidavit of probable cause accompanying the warrants included the following: On 07-29-94 at approximately 0945 hours this affiant interviewed one [alleged victim's 2 NO. 94-1401 CRIMINAL TERM name omitted in this Opinion], W-N-F-9, 1358 Grandview Court, Carlisle, Cumberland County, Pennsylvania 17013, who is the VICTIM in this investigation. This interview was conducted at the office of the Cumberland County District Attorney. Present for this interview were this affiant; John BIRBECK, Assistant Cumberland County District Attorney; Ronald NESTER, Detective, Carlisle Borough Police Department; Ronald EGOLF, Detective, Carlisle Borough Police Department; Barbara VARNER, Cumberland County Children and Youth Services. During this interview, the VICTIM [name omitted] indicated that between the dates of April 1, 1994 and July 18, 1994 that Carl Edward SHIPE had sexually molested her ([name omitted]) on numerous occasions. These alleged assaults were to have taken place in the residence of SHIPE, in particular the bedroom area; and also the vehicle described which is owned by SHIPE. During this interview this affiant became aware of other possible VICTIMS of SHIPE. This information was brought to light by discussion with the aforementioned members of the Carlisle Police Department. In particular one possible VICTIM is a young girl by the name of "HEATHER". On 07/27/94 at approximately 0930 hours this affiant attempted to interview Carl Edward HSIPE [sic]. This interview was conducted at the Carlisle Borough Police Department in the presence of the aforementioned police officers of the Carlisle Police Department. During this interview SHIPE requested that when this interview was completed he wished, to visit the Stevens Mental Health Center, Carlisle, Pennsylvania. During this interview the topic of "HEATHER" was broached, to which SHIPE 3 NO. 94-1401 CRIMINAL TERM responded that "... he had only done [alleged victim's name omitted]". 6. The affidavit of probable cause also included the following: Cpl. L.A. FREEHLING, Jr., Supervisor, Criminal Investigation Unit, Pennsylvania State Police, Carlisle Station is a twenty-six (26) year member of the Pennsylvania State Police. Cpl. FREEHLING has had in excess of three hundred (300) hours of training in Criminal Investigation Analysis. This training had included, but is not limited to, Child Abuse, Child Sexual Molestation and Child Homicide. Cpl. FREEHLING has personally worked on/and or investigated in excess of fifty (50) cases involving child sexual molestation during his career. Cpl. FREEHLING has further advised this affiant that often times child molesters, also known as "Pedopihles" [sic], will retain photographs and/or video tapes of the victims. Cpl. FREEHLING further advised that child molesters will often retain video tapes of the VICTIMS and that the actual video of the VICTIM will be contained inside a legitimate video cassette. Cpl. FREEHLING further advised that child molesters will retain complex directories, possibly within a computer system, of victims. 7. The search warrants were executed by four Pennsylvania state troopers at 11:15 a.m. on Tuesday, August 2, 1994. 8. Defendant's residence was a single-family row home which he occupied with his parents and a nephew, aged 17 or 18. 9. The troopers were aware at the time they executed the 4 NO. 94-1401 CRIMINAL TERM search warrants that Defendant was not at home, because he was in jail. 10. In executing the search warrant for the home, two state troopers went to the front door and two went to the rear door. 11. The troopers, at the front door knocked loudly on three occasions over a period of four to five minutes, announcing "State Police - Search Warrant," but received no response. 12. After waiting as indicated for a response at the front door, one of the troopers went to the rear door and repeated the process over a period of five minutes at the back door, without result. 13. One of the troopers was then able to gain entry through an unlocked window and admitted the other troopers into the house. 14. Despite calls by the state police as to their presence and purpose in the home after they entered, they still did not receive a response. 15. On the second floor in a locked bedroom the troopers found Defendant's nephew, who had eventually responded to their knocking on the door of that room; he testified at the suppression hearing that he had been asleep and that he had not heard the police until they knocked on the bedroom door. 16. The return/receipt form produced by police as a result of the search lists a number of items seized which Defendant contends were beyond the scope of the warrant. These items are shown on the 5 NO. 94-1401 CRIMINAL TERM form as follows, with the first entry at the left being the number assigned to the item by police, the second being the quantity of the item, the third being a description of the item, and the fourth being a description of the place where the item was found: 1 1 LETTERS & NOTEBOOK TOP NIGHTSTAND DRAWER 2 1 LETTERS & 1992 CALENDAR & [illegible] CARD BOTTOM NIGHTSTAND DRAWER 4 1 POLOROID PICTURE OF GIRL ON N. WALL OF BEDROOM 5 2 GIRLS PICTURES FROM PICTURE FRAME N. WALL 9 1 PAPER CONTAINING NAME OF HEATHER BOTTOM RT DRESSER DR. 10 1 LETTER FROM HEATHER " " 11 1 1993 CALENDAR E. WALL 14 3 COLORING BOOKS SMALL STORAGE AREA S. WALL 17 10 PICTURES OF BABIES & WOMEN RT BED DRAWER 17. Because of the troopers' utilization of a window to gain entry to the home, they avoided doing any damage to the premises· 6 NO. 94-1401 CRIMINAL TERM DISCUSSION Knock and announce rule. Pennsylvania Rule of Criminal Procedure 2007 provides as follows: (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. This "knock-and-announce" rule is of constitutional dimension. Commonwealth v. Rudisill, 424 Pa. Super. 313, 622 A.2d 397 (1993). A violation of the rule may necessitate the suppression of evidence. Id. The burden is on the Commonwealth to show the proper execution of a search warrant. Commonwealth v. Chambers, 385 Pa. Super. 605, 561 A.2d 1257 (1989), aff'd, 528 Pa. 403, 598 a.2d 539 (1991). Under the Rule, in the absence of unusual circumstances police must wait a reasonable period of time before effecting a forcible entry of a home pursuant to a search warrant; in the usual case, 7 NO. 94-1401 CRIMINAL TERM occupants must be given an opportunity to admit the police voluntarily. See Commonwealth v. Bull, 422 Pa. Super. 67, 618 A.2d 1019 (1993), appeal allowed, 536 Pa. 638, 639 A.2d 23 (1994). A few seconds is generally not considered a reasonable period of time in this regard. See Commonwealth v. Rudisill, 424 Pa. Super. 313, 622 A.2d 397 (1993). On the other hand, police are not expected to wait for a defendant to open a door when they know he is not home. Commonwealth v. Baker, 361 Pa. Super. 401, 522 A.2d 643 (1987). Silence on the part of occupants after repeated knocking and identification by police can justify a forcible entry. See Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991). And a delay of five minutes before entry into a home has not been held to be an unreasonably short period. See Commonwealth v. Balliet, 374 Pa. Super. 235, 542 A.2d 1000 (1988). In the present case, where the troopers executing the search warrant knew that the Defendant was not home, where they repeatedly knocked on the structure's front and back doors attempting to gain admittance through the voluntary action of any occupant who might be there, and where they waited for at least nine minutes after first knocking and announcing their presence and purpose, the Court concludes that they complied with the requirements of Pennsylvania Rule of Criminal Procedure 2007. 8 NO. 94-1401 CRIMINAL TERM Seizure of items beyond scope of search warrant. "It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched .... In addition, the search may not go beyond the scope of the warrant." Commonwealth v. Eichelberger, 352 Pa. Super. 507, 513, 508 A.2d 589, 592 (1986) (citations omitted), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987).2 As a general rule, items seized which are beyond the scope of a search warrant may not be used by the prosecution as evidence at trial. See Commonwealth v. Stewart, 343 Pa. Super. 514, 495 A.2d 584 (1985). Where such items are not used by the Commonwealth at trial, however, their unlawful seizure may be considered to have been harmless. Id. A court will not review the validity of a search warrant where 2 "The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual's possessions to find which items to seize. This will result in general 'rummaging' banned by the fourth amendment .... A warrant unconstitutional for its overbreadth authorizes in clear and specific terms the seizure of an entire set of items or documents, many of which will prove unrelated to the crime under investigation. The officers executing such a warrant will not rummage, but will 'cart away all documents.'... An overbroad warrant is unconstitutional because it authorizes a general search and seizure." Commonwealth v. Santner, 308 Pa. Super. 67, 69-70 n.2, 454 A.2d 24, 25 n.2 (1982), cert. denied, 468 U.S. 1217, 104 S. Ct. 3585, 82 L. Ed. 2d 883 (1984) (emphasis omitted). 9 NO. 94-1401 CRIMINAL TERM the challenge of Defendant is not to its validity but to its execution. Commonwealth v. Burkholder, 528 Pa. 119, 595 A.2d 59 (1991) (reversing decision premised on validity of warrant where defendant's challenge had been based on seizure allegedly beyond scope of warrant). In the present case, Defendant's counsel at the suppression hearing amended Defendant's motion to suppress to seek exclusion of several physical items seized in his home on the ground that their seizure was beyond the scope of the warrant. The warrant itself authorized, inter alia, the seizure of "all ... physical evidence related to child molestation." It is obvious that the lateness of the amendment to Defendant's motion placed the assistant district attorney representing the Commonwealth at the hearing at a disadvantage. The items cited by defense counsel as being beyond the warrant's scope were not present for inspection, nor was the prosecutor who was scheduled to try the case in attendance. It is also obvious that, depending upon the foundation established at trial, any of the challenged items, such as collections of girls' pictures, pictures of babies and women, childrens' coloring books, correspondence with young girls, and so forth, could tend to show a certain preoccupation on the part of Defendant consistent with the Commonwealth's case and thus be, in an evidentiary sense, "related to child molestation." 10 NO. 94-1401 CRIMINAL TERM Under these circumstances, but bearing in mind that the burden of proof with respect to Defendant's motion rests upon the Commonwealth, the Court will order that none of the items challenged by Defendant as being beyond the scope of the warrant be introduced into evidence at trial without the prior establishment of a foundation, satisfactory to the trial judge and initially out of the presence of the jury, demonstrating the evidentiary relevance of such item to the issue of the alleged child molestation in this case. ORDER OF COURT AND NOW, this 17th day of January, 1995, upon consideration of the motion to suppress, as amended, contained in Defendant's Omnibus Pre-Trial Motion, following a hearing and for the reasons stated in the accompanying Opinion, the motion to suppress is DENIED to the extent that it seeks suppression of all items seized in Defendant's home on the ground of a violation of Pennsylvania Rule of Criminal Procedure 2007 (knock and announce rule), and SUSTAINED with respect to those items enumerated in Finding of Fact 16 for which a foundation showing evidentiary relevance to the present child molestation charges is not first proffered to the trial court. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 11 NO. 94-1401 CRIMINAL TERM Travis N. Gery, Esq. Sr. Assistant District Attorney Michael Schwoyer, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender : rc 12