# Commonwealth v. Newman > Supreme Court of Pennsylvania · April 16, 1968 · 429 Pa. 441 URL: https://www.frixlaw.com/law-library/cases/9761677 ## Case - **Full name:** Commonwealth v. Newman, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** April 16, 1968 - **Citations:** 429 Pa. 441; 240 A.2d 795; 1968 Pa. LEXIS 825 - **Precedential status:** Published - **Opinion:** Concurrence by Eagen - **Judges:** Bell, Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761677 ## How later opinions describe it (automated extraction) - applying Ker rule in "knock and announce" case ## Opinion text Concurring Opinion by Mr. Justice Eagen : I agree with the result reached by the majority, but feel compelled to express some personal observations. The majority opinion judges the constitutionality of a forced entry with reference to a standard more strict than that used in any prior decision it cites. Insofar as the majority decision suggests that its result is compelled by Ker v. California, 374 U.S. 23 , 83 S. Ct. 1623 (1963), or United States ex rel. Manduchi v. Tracy, 350 F. 2d 658 (3d Cir.), cert. denied 382 U.S. 943 , 86 S. Ct. 390 (1965), or United States ex rel. *450 Ametrane v. Gable, 276 F. Supp. 555 (E.D. Pa. 1967), I respectfully disagree. In Ker v. California, the leading United States Supreme Court decision on point, a majority of the Court held that an entry made without the occupant’s consent and without an announcement of either authority or purpose did not violate the federal constitution. The majority decision notes that the officers had reason to believe from the suspect’s furtive conduct that he “might well have been expecting the police”; it also notes that the officers knew that the narcotics for which they were searching could be quickly and easily destroyed. These two factors together were held to be unique justification for the unannounced entry. In this case, the same analysis used by the majority in Ker indicates that the entry was not in violation of the federal constitution. As in Ker , the entering detectives had reason to believe they were expected. One reason they were expected is well stated by the Superior Court: “We must also take into consideration the fact that a man was observed at the front window, on the second floor and that he, in all likelihood, had seen and was aware of the fact that the car had stopped in front of the premises and that three detectives, after alighting from the cars, passed therefrom across the sidewalk to his front door. It is also a fact, probably well known to the detectives in this case, that they were well known to the local gamblers. . . ,” 1 The second reason they were expected is that the entry in this case, unlike that in Ker , was preceded by an announcement of “police.” Thus the occupants were certainly informed • of what the suspect in Ker “might well have been expecting.” Like the detectives in Ker , the entering officers in this case also must have known that the evidence for which they were searching could *451 be quickly and easily destroyed. The reason for finding this knowledge is well stated by the Superior Court: “Three detectives of the vice squad of the district attorney’s office testified. The record reveals that they had been members of the vice squad for a considerable period of time. ... It is a well established fact that defendants in gambling and narcotics cases . . . have destroyed the evidence before the raiding officers could take it. . . . The record shows that the detectives in this case were qualified experts in this field and they were undoubtedly aware of such practices.” 2 Thus a comparison of the entry in Ker with 'this entry indicates that the same unique justification making the entry in Ker constitutional would also make this entry constitutional. Similarly, a comparison of the entries held to be unreasonable in United States ex rel. Manduchi v. Tracy and United States ex rel. Ametrane v. Gable, supra, with ■ the entry in this case does not indicate that this entry was unconstitutional. In ManducM, Lancaster city detectives broke down a door before announcing either authority or purpose. Consequently, there was no reason for the suspect to expect police before the forcible entry. Similarly in Ametrane , the officers entered without announcing either their identity' or purpose. The federal district court found no evidence to support a finding that the occupants knew the police were at the door or expected them. In contrast, before the entry in this case there was an announcement of “police” as well as the possibility that the occupants saw and recognized the detectives as they approached the premises. Thus an element crucial to the finding of unique justification in Ker (i.e., the possibility that the police were expected) was absent in *452 both Manduchi and in Ametrane, but was not absent in this entry. In my view, today’s decision must rest on an adoption of the constitutional standard advocated and sufficiently justified by the dissent in Ker v. California. In that dissent, Mr. Justice Brennan, joined by Chief Justice Warren, Mr. Justice Douglas and Mr. Justice Goldberg proposed: “The protections of individual freedom carried into the Fourth Amendment . . . undoubtedly included this firmly established requirement of an announcement by police officers of purpose and authority before breaking into an individual’s home.” “The Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.” In the instant case there admittedly was no announcement of purpose by the raiding police officers. In my view, an announcement of purpose, as well as an announcement of authority, is not too much to expect of the police before breaking into an individual’s home and should be required in Pennsylvania. I see no reason to invoke any of the exceptions enumerated in Mr. Justice Brennan’s dissent in Ker . I, therefore, agree with the majority that the entry in this case should- be declared illegal. Mr. Justice Jones joins in this concurring opinion. 210 Pa. Superior Ct. 39 -40, 232 A. 2d 3 . 210 Pa. Superior Ct. 37 -39, 232 A. 2d 2 -3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761677. Public record. Not legal advice.