While the police did knock and announce their identity, authority and purpose before forcing entry, it is clear that they failed to wait a reasonable time for appellant to respond. See Commonwealth v. Means, 531 Pa. 504, 508, 614 A.2d 220, 223 (1992) ("A five to ten second delay is not a reasonable time for an occupant to respond to police officers' knocking and announcing their purpose."); Commonwealth v.McDonel, 411 Pa.Super 187, 196, 601 A.2d 302, 307 (1991) (A thirty second lapse between the first knock and the use of a battering ram and a five second lapse between announcement and entry was insufficient.). Hence, unless there were exigent circumstances, the search was in violation of Rule 2007.
The Superior Court, however, has inconsistently dealt with the issue of whether the five to ten-second delay after knocking and announcing is a reasonable amount of time under Rule 2007. Compare Commonwealth v. McDonel, 411 Pa. Super. 187, 601 A.2d 302 (1991). In Commonwealth v. McDonel, "only five to ten seconds passed between the officer's announcement of their identity and purpose and their forced entry".
Commonwealth v. Trenge, 305 Pa. Super. 386, 451 A.2d 701 (1982). Commonwealth v. McDonel, 411 Pa. Super. 187, 190-191, 601 A.2d 302 (1991) [additional citations omitted]. At the close of Appellant's suppression hearing, the court offered the following findings to support its holding that the warrant was properly executed.
lieved to be inside apartment owned gun did not reasonably support belief that he was armed and constituted a threat, where there was no evidence that he had ever been convicted of illegal possession of firearms or of use of firearms in commission of crime); State v. Piller, 628 P.2d 976, 979 (Ariz.Ct.App. 1981) (police knowledge that suspect purchased handgun insufficient to justify noncompliance with knock and announce statute); Rodriguez v. State, 484 So.2d 1297, 1298 (Fla.Dist.Ct.App. 1986) (search warrant for stolen gun cannot, without more, support officer-peril exception to knock and announce requirement); People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 401 N.E.2d 507, 511 (1979) (suspect's prior possession of handgun and pistol box insufficient to justify failure to comply with knock and announce statute, where there was no evidence that suspect's possession was illegal, that he had ever used the weapon, or that he had ever used or threatened violence against the police); Commonwealth v. McDonel, 411 Pa. Super. 187, 601 A.2d 302, 305-06 (1991) (officers' knowledge of suspect's two-year-old conviction for possession of unlicensed firearm combined with assumption that drug dealers commonly possess firearms insufficient to create exigent circumstances); see also United States v. Nabors, 901 F.2d 1351, 1354 (6th Cir.) ("We do not hold . . . that every time law enforcement personnel suspect that the subject of a search warrant possesses a firearm, a split-second announcement followed by a forced entry sufficiently complies with 18 U.S.C. § 3109."), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990). Cf. (Janice) Washington v. United States, 585 A.2d 167 (D.C. 1991) (mere information that defendant possessed gun in her room was insufficient to justify warrantless forced entry, where police lacked probable cause to believe that gun was illegal or had been used in crime).
The constitutional protections against unreasonable searches and seizures also apply to the execution of search warrants. See, e.g., Commonwealth v. McDonel, 601 A.2d 302, 306-07 (Pa.Super. 1991). "Whether the manner of execution of a search warrant is unreasonable is to be determined on a case by case basis." Id. at 307.
"Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry." Commonwealth v. McDonel,601 A.2d 302, 304 (Pa. Super. 1991) (citation omitted). "The purposes of the 'knock and announce' rule . . . are to prevent violence and physical injury to the police and occupants, to protect an occupant's privacy expectation against unauthorized entry of a person unknown to him or her, and to prevent property damage resulting from forced entry."
¶ 9 In the present case, the police announced their identity, but did not announce their purpose when executing the search warrant.Commonwealth v.McDonel, 411 Pa.Super. 187, 601 A.2d 302, 304 (1991) ("Generally, absent exigent circumstances, police must announce both their authority and purpose before forcible entry." (citations omitted)).
Id. Accord Commonwealth v. McDonel, 411 Pa. Super. 187, 601 A.2d 302 (1991). In the present case, however, the Commonwealth is not asking us to sanction a "drug dealer" exception to the knock and announce rule.
Again, under limited circumstances, police may disregard the knock and announce rule where they believe that announcing themselves "would imperil their safety." Commonwealth v. McDonel, 411 Pa. Super. 187, 601 A.2d 302, 306 (1991). But, in McDonel, the Court was unwilling to create a presumption that "exigent circumstances sufficient to do away with the knock and announce rule [would] exist any time a search for drugs is conducted."
ed for here are United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993) ("[t]he reasonable belief that firearms may have been within the residence, standing alone, is clearly insufficient" to justify an otherwise improper entry under federal knock and announce statute); United States v. Fluker, 543 F.2d 709, 717 (9th Cir. 1976) (that person believed to be inside apartment owned gun did not reasonably support belief that he was armed and constituted a threat, absent evidence that he had ever been convicted of illegal possession or unlawful use of firearms); State v. Piller, 129 Ariz. 93, 628 P.2d 976, 979 (1981) (police knowledge that suspect purchased handgun did not justify noncompliance with knock and announce statute); Ouellette (occupant's prior possession of handgun did not justify failure to comply with knock and announce statute, absent evidence that prior possession was illegal, that he had ever used the weapon, or that he had ever threatened violence against the police); Commonwealth v. McDonel, 411 Pa. Super. 187, 601 A.2d 302, 305-06 (1991) (officers' knowledge of two-year-old conviction for possession of unlicensed firearm together with assumption that drug dealers commonly possess firearms insufficient to create exigent circumstances); State v. Jeter, 30 Wn. App. 360, 634 P.2d 312 (1981) (information that defendant kept a weapon insufficient to excuse noncompliance with the "knock and wait" rule). The majority opinion fails to acknowledge the difference between an unsupported official claim of exigent circumstances and the particularized evidentiary showing our constitutions require.