PA: This knock and talk led to police created exigency

Officers lacked exigent circumstances for a warrantless entry. They created the exigency by this knock and talk. Defendant’s failure to come to the door timely did not support exigency. Commonwealth v. Waddell, 2012 PA Super 252, 61 A.3d 196 (2012):

Accordingly, “[a]bsent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment.” Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (Pa. 1994). In determining whether exigent circumstances exist, the following factors are to be considered:

(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.

Id. at 270-71 (quoting Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026, 1031 (Pa. 1979)). We may also consider “whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.” Id. at 271. When considering these factors, we must remain cognizant that “police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Id. (quoting Welsh, 466 U.S. at 749-50).

. . .

Chief DeSimone and the other police officers lacked any specific evidence that anyone inside the home was armed. Rather, DeSimone’s suspicion that firearms or other weapons might be found within the home was premised upon generalized experience with those that traffic in narcotics, not any particular evidence derived from the investigation in this case. In contrast, in Griffin, police directly observed a firearm. In this case, DeSimone was only speculating regarding the presence of firearms.²⁵

25 The “guns follow drugs” presumption has been criticized in Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1162 (Pa. 2000) and Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810, 816 (Pa. 2000).

. . .

Balancing all of these factors, we conclude that although probable cause existed at the time of the warrantless entry, the Commonwealth failed to demonstrate exigent circumstances sufficient enough to overcome the strong presumption that the warrantless invasion of Appellant’s home was illegal. Contrary to the Commonwealth’s arguments, the Bostick, Griffin, and Walker rulings fail to support a finding of exigency in these circumstances. Appellant was not directly observed by police engaging in felonious behavior, as was the case in Bostick, Griffin, and Walker. Though police suspected a drug distribution scheme operating out of 314 West 12th Avenue, they did not directly witness any suspected drug transactions as occurred in both Bostick and Griffin, nor did they observe felonious possession of narcotics as occurred in Walker.

Also common to Bostick, Griffin, and Walker were facts that the appellants in those cases had observed the presence of police and reacted by retreating into the residences that were ultimately searched. Their knowledge of the presence of police greatly elevated the risk that evidence would be destroyed if police were to wait to obtain a search warrant. These are facts conspicuously absent from Demshock and the instant case. Here, the risk that Appellant, or anyone else within the house, would destroy evidence was largely created by the police who approached a home that was the target of an investigation to do a ‘knock and talk.’ It is hard to envision a purpose for this particular ‘knock and talk’ other than an intent to manufacture exigency and bypass the warrant requirement.