Petition for Writ of Certiorari — Pennsylvania v. Labron

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IN THE =e

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

EDWIN LABRON

On Petition for Writ of Certiorari to

the Supreme Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX - VOLUME I

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

JOAN WEINER

Assistant District Attorney

CATHERINE MARSHALL

Chiet, Appeals Unit

ARNOLD GORDON

First Assistant District Attorney

LYNNE ABRAHAM

District Attorney

Philadelphia District Attorney's Office

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5700

QUESTION PRESENTED

Has the Pennsylvania Supreme Court properly

understood this Court's precedent in declaring that police

who have probable cause must still secure a warrant to

search a car parked on a street, unless they can show

particular exigent circumstances beyond the inherent

mobility of the vehicle?

TABLE OF CONTENTS

| PAGE

Question Presented i

Table of Authorities iv-Vi

Opinions Below l

Statement of Jurisdiction 1-2

Constitutional Provision Involved 2

Statement of the Case 3-6

Reasons for Granting the Writ 6-14

The Pennsylvania Supreme Court has

effectively abrogated the "automobile

exception" by declaring -- in reliance on

this Court's Fourth Amendment

jurisprudence -- that police acting with

probable cause cannot search a car

parked on a street unless they can show

particular exigent circumstances beyond

the inherent mobility of the vehicle.

Conclusion 15

Appendix (Volume I):

Judgment and Opinion of the

Supreme Court of Pennsylvania App. 1-34

Judgment and Opinion of the

Superior Court of Pennsylvania

Suppression Opinion of the

Court of Common Pleas

of Philadelphia County

Appendix (Volume II -- separately bound)

Notes of Testimony, Suppression,

11/20/91

Notes of Testimony, Suppression,

11/21/91

Notes of testimony, Suppression,

12/5/91

Notes of Testimony, Suppression,

5/92

App. 35-43

App. 44-53

App. 54-189

App. 190-240

App. 241-55

App. 256-66

TABLE OF AUTHORITIES

Federal Cases

Arkansas v. Sanders, 442 U.S. 753 (1979)

Cady v. Dombrowski, 413 U.S. 433 (1973)

California v. Carney, 471 U.S. 386 (1985)

Cardwell v. Lewis, 417 U.S. 583 (1974)

Carroll v. United States, 267 U.S. 132 (1925)

Chambers v. Maroney, 399 U.S. 42 ( 1970)

Chapman v. United States, 365 U.S. 610 (1961)

Colorado v. Bannister, 449 U.S. | (1980)

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

Illinois v. Rodriguez, 497 U.S. 177 (1990)

Michigan v. Thomas, 458 U.S. 259 (1982)

New York v. Class, 475 U.S. 106 (1986)

South Dakota v. Opperman, 428 U.S. 364 (1976)

Texas v. White, 423 U.S. 67 (1975)

United States v. Chadwick, 433 U.S. | (1977)

9,12

United States v. Cruz, 834 F.2d 47 (2d Cir. 1987)

United States v. Hatley, 15 F.3d 856

(9th Cir. 1994)

United States v. Johns, 469 U.S. 478 (1985)

United States v. Jones, 31 F.3d 1304

(4th Cir. 1994)

United States v. Markham, 844 F.2d 366

(6th Cir. 1988)

United States v. Ross, 456 U.S. 798 (1982)

United States v. Swingler, 758 F.2d 477

(10th Cir. 1985)

State Cases

Commonwealth v. Baker, 518 Pa. 145,

541 A.2d 1381 (1988)

Commonwealth v. Cockfield, 431 Pa. 639,

246 A.2d 381 (1968)

Commonwealth v. Holzer, 480 Pa. 93, 389

A.2d 101 (1978)

Commonwealth v. lonata, 518 Pa. 472,

544 A.2d 917 (1988)

PAGE

8,12

4,12,13

11,12

Commonwealth v. Kilgore, 1995 WL 790060

(Pa., opinion dated December 26, 1995,

judgment entered January 24, 1996)

Commonwealth v. Lewis, 442 Pa. 98,

275 A.2d $1 (1971)

Commonwealth v. Milyak, 508 Pa. 2, 493

A.2d 1346 (1985)

Commonwealth v. Rodriguez, 526 Pa. 268,

585 A.2d 988 (1991)

Commonwealth v. Timko, 491 Pa. 32.

417 A.2d 620 (1980)

Commonwealth v. White, 669 A.2d 896

(Pa., opinion dated December 29, 1995,

judgment entered January 4, 1996)

Constitution and Statutes

U.S. Const. amend. I'V

U.S. Const. amend. XIV

28 U.S.C. § 1257(a)

18 Pa. C.S. § 903

35 Pa. C.S. § 780-113(ay(16)

35 Pa.C.S. § 780-113(a\(30)

5.13.14

4,12,13

5,12,14

The January 12, 1996 judgment and opinion of the

Supreme Court of Pennsylvania, reversing the judgment of

the intermediate appellate court, the Superior Court of

Pennsylvania, is reported at 669 A.2d 917 (Pa. 1995), and

is reprinted in the Appendix at App. 1-34.' The January 6,

1993 judgment and memorandum opinion of the Superior

Court of Pennsylvania is unreported but is reprinted in the

Appendix at App. 35-43. The July 31, 1992 opinion of the

Court of Common Pleas of Philadelphia County is

unreported, but is reprinted in the Appendix at App. 44-53.

STATEMENT OF JURISDICTION

This is a state criminal prosecution where

respondent filed a motion in the trial court, the Philadelphia

Court of Common Pleas, seeking to suppress cocaine on the

ground, inter alia, that it was seized from an automobile in

violation of the Fourth and Fourteenth Amendments of the

United States Constitution. On March 5, 1992, the trial

court suppressed the evidence, finding that the seizure was

supported by probable cause but was nonetheless unlawful

because of the absence of a warrant.

Upon appeal by petitioner, the Commonwealth of

Superior Court of Pennsylvania, reversed the suppression

order in a judgment and memorandum opinion dated

January 6, 1993. Respondent filed a petition for allowance

of appeal in the Supreme Court of Pennsylvania. On May

' The Court's opinion shows a filing date of

December 29, 1995, but judgment was not entered, and the

opinion was not issued, until January 12, 1996.

26, 1994, the Supreme Court granted the petition for

allowance of appeal. After briefing and oral argument, the

supreme court reversed the decision of the superior court,

holding that, under the "automobile exception" derived

from this Court's Fourth Amendment case law, a police

officer who develops probable cause io believe that

contraband is in an automobile must nevertheless

demonstrate that it was impracticable to obtain a search

warrant before conducting a warrantless search.

The jurisdiction of this Court to review the final

judgment of the Supreme Court of Pennsylvania, based

upon its construction of the federal Fourth Amendment, is

invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment of the United States

Constitution, which provides:

The right of the people to be secure

in their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants shall

issue, but upon probable cause, supported by

oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.

The Due Process Clause of Section | of the

Fourteenth Amendment of the United States Constitution,

which provides:

[{N]or shall any State deprive any

person of life, liberty, or property, without

due process of law.

STATEMENT OF THE CASE

This case is one of a series of recent decisions in

which the Pennsylvania Supreme Court has held, on the

basis of Fourth Amendment precedent, that a car cannot be

searched without either a warrant or a case-by-case

showing that exigent circumstances -- beyond the inherent

mobility of the vehicle -- prevented the securing of a

warrant.

The case began in August, 1990. A police officer

investigating drug dealing on a particular street in

Philadelphia got a tip that drug dealers were stashing

cocaine in certain cars parked on the block. One of the

vehicles was described as a 1977 blue Lincoln. To

corroborate the tip, the officer conducted surveillance from

a confidential location. App. 60, 132-33. During the

two-hour surveillance, he saw respondent and another male

sell drugs to numerous customers.

Whenever respondent and his accomplice ran out of

drugs to sell, a confederate appeared and resupplied them

from a stash of cocaine in the trunk of a 1977 blue Lincoln.

App. 63-66. At one point in the surveillance, the resupplier

handed the other seller a set of keys and drove away.

Minutes later, two couriers arrived to deliver a shipment of

cocaine to the operation. Using the newly arrived keys,

respondent placed two large bags of cocaine inside the

trunk of the blue Lincoln. App. 66-72.

The investigating officer called for assistance and

arrested respondent, the other seller, and the couriers. The

police then searched the trunk of the blue Lincoln and

removed the two large plastic bags of cocaine that had just

been delivered. App. 71-72. Respondent was held for trial

on charges of possession of a controlled substance with the

intent to deliver, 35 Pa. C.S. § 780-113(a)(16), (a)(30), and

criminal conspiracy, 18 Pa. C.S. § 903.

Respondent moved to suppress the drugs, citing the

United States and Pennsylvania Constitutions, without

distinguishing between the two. App. 57-58. At the

suppression hearing, on November 20, 1991, respondent

presented no evidence, and the investigating officer's

testimony remained uncontradicted.

The suppression court credited the officer's

testimony, App. 262, but granted respondent's suppression

motion, concluding that, under the Fourth Amendment,

even though the police had probable cause to believe that

there was cocaine in the Lincoln, they could not search

without a warrant because there was no specific exigency

that prevented them from securing one.’

Petitioner appealed to the intermediate state

appellate court, the Superior Court of Pennsylvania. On

January 6, 1993, the Superior Court reversed the

suppression order and issued an opinion explaining that

under the Fourth Amendment and the Pennsylvania

Constitution, which was co-extensive on the question,

probable cause permitted the warrantless search under the

“automobile exception."

. The suppression court based its conclusion solely

on Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d

988 (1991), App. 258, an "automobile exception" case

decided exclusively under the Fourth Amendment. When

the court wrote its post-verdict opinion four months later, it

made additional reference to Commonwealth v, Baker, 518

Pa. 145, 541 A.2d 1381 (1988), an "automobile exception"

case decided under b4oth the federal and state constitutions,

which were viewed as coterminous on the question.

Respondent petitioned for discretionary review.

The state Supreme Court granted review in this case and

two other unrelated cases involving the "automobile

exception." The state supreme court then held in each of

the three cases that the Fourth Amendment's "automobile

exception" (which the court continued to view as

coterminous with the Pennsylvania Constitution on the

question) required not only probable cause for the search,

but also proof that the police did not have time or

opportunity to get a warrant.’

Thus, in the case at bar, the court concluded that

because the investigating officer had information about the

Lincoln's role in the drug operation, he supposedly could

have secured a warrant before he went to the scene, and

was therefore required to obtain one before setting up

surveillance. The court further held that, once the officer

actually saw the Lincoln being used to store cocaine, he

was precluded under the "automobile exception" from

conducting a warrantless search absent a showing of an

articulable exigency that made it impracticable to obtain a

warrant.

Because of the court's insistence that the

"automobile exception" precluded a warrantless search

The opinion in the present case was dated December

29, 1995. However, judgment was not entered, and the

opinion was not issued, until January 12, 1996. The other

cases in the trilogy are Commonwealth v. Kilgore, 1995

WL 790060 (Pa., opinion dated December 26, 1995,

judgment entered January 24, 1996), and Commonwealth v.

White, 669 A.2d 896 (Pa., opinion dated December 29,

1995, judgment entered January 4, 1996).

absent an additional showing of exigent circumstances,

petitioner filed this petition for writ of certiorari.

REASONS FOR GRANTING THE WRIT

The Pennsylvania Supreme Court has

effectively abrogated the "automobile

exception" by declaring -- in reliance on

this Court's Fourth Amendment

jurisprudence -- that police acting with

probable cause cannot search a car

parked on a street unless they can show

particular exigent circumstances beyond

the inherent mobility of the vehicle.

The decision below -- one of a trilogy of recent

“automobile exception" cases wrongly decided by the

Pennsylvania Supreme Court -- purports to apply the

“automobile exception" to the Fourth Amendment but turns

seventy years of constitutional automobile-search

jurisprudence on its head.

Over those many years, this Court has repeatedly

held that because automobiles are inherently mobile and

because citizens enjoy a substantially diminished

expectation of privacy in their automobiles, warrantless car

searches are permitted upon a demonstration of probable

cause without more.

The Pennsylvania Supreme Court has completely

eviscerated that principle. Purporting to interpret the

Fourth Amendment, it held in this case and the two others

that probable cause alone is insufficient as a matter of law

to justify a warrantless car search.

eee

The police here had information from sources that

drug dealers were using a blue Lincoln parked at a

particular location as a stash for retail cocaine traffic.

Recognizing that the mere existence of a tip often will not

establish probable cause, the police chose to corroborate

their information through surveillance at the scene. When

the police saw respondent conduct numerous street sales,

and saw him refill the drug supply in the car, they arrested

him and seized the drugs, rather than leaving the car for

several more hours to secure a warrant. The officers’

conduct was in complete accord with this Court's Fourth

Amendment interpretations.

Yet the Pennsylvania Supreme Court believed that,

because the police had uncorroborated information about _

the car before they conducted surveillance, they were

legally obligated to get a search warrant. The evidence,

said the court, was not "admissible without first requiring

the Commonwealth to demonstrate that exigent

circumstances prevented them from obtaining a warrant."

App. 20.

That interpretation of the Fourth Amendment is

flatly wrong. This Court has left no room for argument on

the question: a warrantless car search is proper under the

Fourth Amendment if it is made with probable cause.

There is no need to demonstrate, case-by-case, a specific

inability to obtain a warrant.

Thus, in California v. Carey, 471 U.S. 386 (1985),

when a government agent developed information about a

motor home being used for illicit purposes, conducted

surveillance, corroborated his information, and entered the

vehicle without a warrant, this Court held that the

warrantless entry was perfectly proper under the

“automobile exception" because the agent had probable

cause.

There is nothing distinguishing Carney from the

instant case. The police there, as here, had advance

information that a vehicle was being used in criminal

activity, they went to the scene to corroborate the

information, and they conducted a warrantless search of the

vehicle based on a showing of probable cause alone.

Because the "automobile exception" required no more, the

warrantless search was upheld. The result should have

been the same here but was not simply because the

Pennsylvania Supreme Court is obviously under the

erroneous impression that an additional showing of an

articulable exigency is required.

This Court's holding in United States v. Ross. 456

U.S. 798, 807 (1982), further demonstrates the

Pennsylvania Supreme Court's misunderstanding. In Ross,

the police received a tip from an informant and went to the

targeted location, where they found Ross selling drugs from

the trunk of a car. They arrested Ross and immediately

searched his car and its trunk. After finding drugs in a

container in the trunk, the police transported the car to a

police station and searched it again. This time they found a

quantity of cash in another container.

Relying on the "automobile exception,” this Court

upheld the warrantless search of both the car and the

containers at both locations because they were supported by

probable cause. If the warrantless search in Ross was valid

under the "automobile exception” upon a showing of

probable cause alone, so was the search here.

The holdings in Carney and Ross are not

extraordinary; they are but two examples of this Court's

- te ah Ce LE Bitte 8-6 OL

long-standing view -- going back to Carroll v. United

States, 267 U.S. 132 (1925) -- that, because citizens have a

diminished expectation of privacy in their automobiles, and

because automobiles are inherently mobile, the Fourth

Amendment permits police officers to conduct warrantless

car searches as long as they have probable cause. See

United States v. Johns, 469 U.S. 478, 484 (1985) ("A

vehicle lawfully in police custody may be searched on the

basis of probable cause to believe that it contains

contraband, and there is no requirement of exigent

circumstances to justify such a warrantless search"),

, 458 U.S. 259 (1982) (right to conduct

warrantless search of automobile with probable cause does

not "depend upon a reviewing court's assessment in each

particular case that the car would have been driven away, or

that its contents would have been tampered with, during the

period required for the police to obtain a warrant"), Texas

vy. White, 423 U.S. 67 (1975) (warrantless car search at

police station upon probable cause held proper); Cardwell

v, Lewis, 417 U.S. 583 (1974) (under “automobile

exception,” probable cause allowed for warrantless search

without proof of articulable exigency); Chambers v.

Maroney, 399 U.S. 42 (1970) (warrantless search of el

impounded vehicle upheld under "automobile exception

based on showing of probable cause)."

It does not matter if the warrantless search occurs,

as here, on the roadway after the suspects have already been

arrested, or later at an impoundment lot. Nor does it matter

: The "automobile exception" includes within its

bounds the warrantless search of automobile trunks,

Arkansas v. Sanders, 442 U.S. 753 (1979); Cady v.

Dombrowski, 413 U.S. 433 (1973), glove compartments,

South Dakota v. Opperman, 428 U.S. 364 (1976), and any

other part of the car where contraband may be hidden.

if, as here, the automobile is already immobile before the

police arrived. Colorado y. Bannister, 449 U.S. 1 (1980)

(automobile exception applies even where the police never

see vehicle in actual motion). In all these cases, the

existence of probable cause to search the automobile,

without showing specific exigencies, satisfies the Fourth

Amendment.’

Clearly, the Pennsylvania Supreme Court has

interpreted the "automobile exception" in a manner wholly

inconsistent with this Court's development of the exception.

Indeed, the Pennsylvania court's interpretation of the

The federal courts of appeal, unlike the

Pennsylvania Supreme Court, have had little trouble

applying this clear case law, and have regularly rejected

attempts to graft onto the "automobile exception” the extra

requirement erroneously pronounced here. See United

States v, Jones, 31 F.3d 1304 (4th Cir. 1994) (warrantless

search of automobile justified with probable cause even

though officers had advance information about truck before

conducting search); United States v. Hatley, 15 F.3d 856

(9th Cir. 1994) (as long as warrantless car search based on

probable cause, no further exigency need be shown);

United States v. Markham, 844 F.2d 366, 368 (6th Cir.

1988) (police do not have to show inability to obtain

warrant; Fourth Amendment allows search on showing of

probable cause alone); United States v. Cruz, 834 F.2d 47

(2d Cir. 1987) (whei> agents develop probable cause, arrest

owner of truck and search truck two hours later without a

warrant, search permitted under "automobile exception");

United States v, Swingler, 758 F.2d 477 (10th Cir. 1985)

(view that "automobile exception" applies only when there

are exigent circumstances "has never been endorsed by the

[United States] Supreme Court and is, in fact, inconsistent

with that Court's development of the exception").

LO cS A Pe I I

Mee bn ty aa +

exception abolishes it by requiring the same kind of proof

for warrantless car searches as for warrantless house

searches. In its place, the court in effect imposes the far

more intrusive requirement that the police immobilize the

suspect vehicle (and themselves) for several hours pending

the arrival of a warrant.

Had the “automobile exception” been properly

applied, this retrogressive result could not have been

reached. The police did not act precipitously here; they —

secured probable cause precisely by resisting the temptation

to jump the gun. That probable cause was alone sufficient

to justify the warrantless car search. The law simply did

not require the officers to wait further to confirm the

obvious risk that the drug dealers would move the car or

sell or secrete the drugs before a warrant could be obtained.

Indeed, given the clarity of the controlling principle,

it is difficult to see how the state court achieved its contrary

ruling. The court started off its legal discussion well |

enough, quoting accurately from this Court's decisions in

Carroll and Chambers. App. 9-11.

At that point, however, the court referred to |

Pennsylvania cases decided two and three decades ago -- in

explicit reliance on this Court's case law -- for the

proposition that “there is no “automobile exception” as

such,” and that "the movability of [an automobile] is not

alone a sufficiently "« gent circumstance” to justify a

warrantless search.” App. 11-12."

; Commonwealth v. Holzer, 480 Pa. 93, 103, 389

A.2d 101, 106 (1978) (citing Coolidge v. New Hampshire.

403 U.S. 443 (1971) and Chambers); Commonwealth v.

Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 384 (1968)

——Geee. ee 365 U.S. 610 (1961)).

Armed with this incomplete understanding of

current Fourth Amendment law, the supreme court

continued through a discussion of several more

Pennsylvania decisions. each and every one of which

purported to apply federal precedent. App. 12-19.’ Yet the |

opinion below never even cited a decision of this Court

more recent than Chambers. and made no attempt to square

its notion of federal constitutional requirements with this

Commonwealth vy. Milvak, 508 Pa. 2, 7-9, 493 A.2d

1346, 1349 (1985) (interpreting Chambers, South Dakota v. |

Opperman. United States v. Chadwick, 433 U.S. 1 (1977),

Coijorado v. Bannister, and United States v. Ross): |

Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620,

623 (1980) (interpreting Chambers); Commonwealth v.

Lewis, 442 Pa. 98, 102, 275 A.2d $1, $3 (1971)

(interpreting Chambers); Commonwealth v. Baker, 518 Pa.

145, 148-49, 541 A.2d 1381, 1383 (1988) (interpreting

Ross and Commonwealth v. Milyak. Commonwealth v.

Holzer, and Commonwealth v. Lewis, each of which in turn

interpreted Chambers): $26

Pa. 268, 272-74, 585 A.2d 988, 990-91 (1991) (interpreting

Commonwealth v, Milyak and Commonwealth v. Baker.

each of which relied on Chambers): Commonwealth v.

lonata, 518 Pa. 472, 476-77, 544 A.2d 917, 919-20 (1988)

(interpreting Ross and Commonwealth v. Milyak.

Commonwealth v. Lewis, Commonwealth v. Holzer. and

Commonwealth v. Cockfield, all of which relied on this

Court's decisions); Commonwealth vy. White, 669 A.2d

896, 899-901 (1995) (interpreting Chambers and

Commonwealth v. lonata, Commonwealth v. Milyak. and

Commonwealth v. Cockfield, all of which relied on this

Court's decisions).

Court's actual body of law on the automobile exception."

. There is no issue in this case of an adequate and

independent state ground that would support the lower

court's holding.

Although respondent mentioned both the federal

and state constitutions before the suppression court, he did

distinction in its ruling, relying on state court decisions

(Commonwealth v. Rodriguez and Commonwealth v.

Baker) that were explicitly based on federal law. App.

49-52.

The intermediate state appellate court did the same.

App. 39-43.

And, as discussed above, so did the state supreme

court. The opinion referred at one point to both the state

and federal constitutions, App. 8-9, and to “this

Commonwealth's jurisprudence of the automobile

exception,” App. 20. But every authority discussed on

those topics was in fact a decision of this Court or a

decision interpreting a decision of this Court.

Indeed, the Pennsylvania Supreme Court itself has.

in a subsequent case, treated the opinion in this case as one

based on the Fourth Amendment. Commonwealth v.

Kilgore, 1995 WL 790060 at *3 (Pa. dated December 26.

1995, judgment entered January 24, 1996) (quoting

decision in this case, and stating that “we are constrained to

266 EE

As mentioned above, the Pennsylvania Supreme

Court's misreading of the "automobile exception" is not an

anomaly limited to this one case. Indeed, within three days

of the decision here, the court similarly decided two other

“automobile exception” cases. In both Commonwealth v.

Kilgore, 1995 WL 790060 (Pa., December 26, 1995), and

Commonwealth v. White, 669 A.2d 896 (Pa. 1995), the

court held, as it did here, that even though the police clearly

had probable cause to search the vehicle in question, their

warrantless searches were improper under the Fourth

Amendment because the Commonwealth did not

demonstrate specific exigent circumstances, beyond

inherent mobility, that would justify the failure of the

police to obtain a warrant before searching the vehicle.

That burden of proof simply is not part of the Fourth

Amendment's "automobile exception” equation.

Because the Pennsylvania Supreme Court has so

fundamentally misinterpreted the "automobile exception"

and grafted onto it an evidentiary requirement that has been

soundly rejected by this Court, its incorrect decision below

should be reviewed and reversed.

conducted in a manner which violated his rights under the

Fourth Amendment”).

Thus, the resolution of the suppression claim in this

case was hardly the “plain statement” of an independent

state ground required to defeat this Court's jurisdiction.

New York v, Class, 475 U.S. 106 (1986). Accord, Illinois

v. Rodriguez, 497 U.S. 177 (1990).

CONCLUSION

For these reasons, petitioner respectfully requests

that a writ of certiorari issue to review the decision below.

a Aa

RONALD EIS ERG

Deputy District Attorney

(Counsel of Record)

JOAN WEINER

CATHERINE MARSHALL

Chief, Appeals Unit

ARNOLD GORDON

First Assistant District Attorney

LYNNE ABRAHAM

District Attorney

Philadelphia District Attorney's Office

1421 Arch Street

Philadelphia, Pa. 19102

(215) 686-5700

DATE: April 11, 1996

APPENDIX

<a ee oy Beet Lt mal Coed

Wi ees eesti Star

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF : No. 43 Eastern

PENNSYLVANIA, : District Appeal

Appellee : Docket 1994

Appeal from the Judg-

ment of Superior

Court entered January

6, 1993 at No. 1276

: PHL 1992, reversing

v. : the Order entered on

: March 5, 1992 in the

Court of Common

Pleas, Criminal Divi-

sion, Philadelphia

County at No. 9009-

2318-19

EDWIN LABRON, : ARGUED:

Appellant : JANUARY 25, 1995

OPINION

DECIDED:

December 29, 1995

MR. JUSTICE MONTEMURO

Appellant, Edwin Labron, appeals from a memo-

randum opinion and per curiam order of the Superior

Court reversing an order of the Court of Common Pleas

of Philadelphia County suppressing evidence seized

during a warrantless search of an automobile.

We granted permission for this appeal in order to

determine whether the Commonwealth must establish the

existence of exigent circumstances in order to justify the

warrantless search of an automobile, or if the “auto-

mobile exception” to the warrant requirement requires

only that the Commonwealth establish the existence of

probable cause. Because we believe that the automobile

exception requires a showing of both probable cause and

exigent circumstances, we hold that the Superior Court

incorrectly applied the automobile exception to this case.

On August 24, 1990, Officer Gerald Nimmo of

the Philadelphia Police Department, assigned to the

narcotics unit, established surveillance of the 900 block

of Auburn Street in the City of Philadelphia from a

confidential location. During his surveillance, he

observed Appellant and another male, Santiago, conduct

transactions in which Appellant and Santiago would

accept cash from individuals on the street in exchange

for small plastic bags filled with white powder. Based

upon his experience as a police officer, he believed that

the packets were filled with cocaine and that the

exchanges constituted the sale of illegal drugs. A short

while later, Officer Nimmo observed a third male,

Melendez, approach Appellant and Santiago. The three

men proceeded to a blue Lincoln automobile which was

parked on the south side of Auburn Street.

With a key, Melendez opened the trunk of the

car, reached inside, and retrieved a bag. From the bag,

Melendez produced two other bags, giving one each to

Appellant and Santiago. The bags contained smaller

packets filled with white powder. In exchange for the

bags, Appellant and Santiago gave Melendez currency.

Melendez closed the trunk while Appellant and Santiago

returned to the street to continue what Officer Nimmo

believed to be drug transactions.

App. 2

eet De on elaine ae Ae oe ente na eS A aN POS te

ce et aa ad OM ee

A short time later, the three men again met and

again approached the blue Lincoln, where Melendez

repeated the exchange of bags containing smaller packets

filled with white powder for cash from Appellant and

Santiago. A few minutes afterward, Melendez

approached Santiago and handed him a set of keys.

Thereafter, Melendez got into another car, a blue Ford

stationwagon, and drove away. Appellant and Santiago

continued to transact sales.

Approximately ten minutes after Melendez had

left, a blue Toyota pulled into the 900 block of Auburn

Street. Two men exited the vehicle and approached

Santiago. Appellant dpproached the group and Santiago

gave him a set of keys. Appellant went to the blue

Lincoln and used the keys to open its trunk. One of the

men from the Toyota retrieved a plastic bag from the

passenger side of the Toyota and gave it to Appellant,

who was waiting at the blue Lincoln. Appellant took the

bag and placed it in the trunk, which he then closed,

returning the keys to Santiago.

The two men from the Toyota got into their

automobile and drove away. Back-up officers who were

waiting a few blocks away stopped the blue Toyota and

arrested its two occupants. Other back-up officers

quickly arrived on Auburn Street and arrested Appellant

and Santiago. At that point, Officer Nimmo directed

another officer to open the trunk of the blue Lincoln.

Upon doing so, the officers found two plastic bags and a

plastic sandwich bag, all filled with what proved to be

cocaine.

App. 3

Appellant, charged with deliv ery of a controlled

substance ‘and criminal conspiracy,“ filed a motion

seeking to suppress the evidence obtained from the war-

rantless search of the automobile. After a hearing, the

trial court granted Appellant's motion, holding that

although Officer Nimmo had probable cause, the Com-

monwealth had failed to establish the existence of exi-

gent circumstances in order to justify the warrantless

search.

The Commonwealth appealed the suppression

order to the Superior Court which, concluding that the

trial court had incorrectly analyzed the automobile

exception to the warrant requirement, reversed the sup-

pression order. The Superior Court determined that the -

law does not require the existence of both probabie

cause and separate exigent circumstances as prerequisites

to a valid warrantless search of an automobile. Rather,

the court found that

[t]he automobile exception to the warrant

requirement demands only that an officer

have probable cause to believe that evi-

dence of a crime or contraband will be

found within the vehicle....

Commonwealth v. Labron, No. 01276 Philadelphia

1992, slip op. at 7-8 (Pa.Super., January 6, 1993)

(footnote omitted). The court further held that the

inherent mobility of an automobile, without more, is

sufficient to justify a warrantless search once probable

135 PS. § 780-113(30).

218 PaCS. § 903.

App. 4

cause to search the vehicle has been established. Id. at

In this appeal, Appellant argues that the Superior

Court erred in concluding that once probable cause

exists to conduct a search, the automobile exception is a

per se exception to the warrant requirement. Appellant

additionally argues that the trial court correctly deter-

mined that because the police had adequate information

and time within which to secure a warrant, no exigent

circumstances existed to justify the warrantless search of

the vehicle.

As a preliminary matter, even though recognizing

that the Commonwealth concedes that Appellant has

standing to contest the search in question, the dissent

contends that Appellant does not have "such standing as

to have a right to be before this or any Court to seek

suppression of the evidence in issue." Dissent at 1. The

dissent further notes that even if Appellant does have

standing, he nevertheless does not have a reasonable

expectation of privacy sufficient to warrant suppression

of the evidence. !t is clear, however, that issues not

raised in the lower courts, or raised at the trial level but

not preserved on appeal, will not be considered by an

appellate court. Commonwealth v. McKenna, 476 Pa.

428, 383 A.2d 174 (1978); Pa.R.A.P. 302(a).

Addressing a similar argument that a petitioner

lacked an expectation of privacy sufficient to prevail on

a fourth amendment claim, the United States Supreme

Court, noting that the argument had not been raised in

the courts below, concluded that the government had lost

its right to challenge petitioner’s legitimate expectation

of privacy. Steagald v. United States, 451 U.S. 204,

211 (1981). See also Commonwealth v. Govens, 429

Pa. Super. 464, ry: A.2d 1316 (1993), alloc. denied,

App. 5

Consequently, the Commonwealth abandoned its

claim that Appellant lacked a reasonable expectation of

privacy sufficient to challenge the police conduct.

539 Pa. 675, 652 A.2d 1321 (1994) (wherein the Super-

ior Court, en banc, recognized that when standing to

contest police conduct is not raised at the suppression

hearing, a belated attempt to raise the issue on appeal

must be rejected.) Where a defendant is ordered to file a

| concise statement of matters complained

In this case, during the pre-trial motions, the of on appeal, pursuant to > aol

Commonwealth argued that even though the two men 1925(b), and fails to raise a particu

matter within that statement, the defen-

dant is deemed to have waived that point

of error on appeal. Commonwealth v.

Warren, 332 Pa. Super. 410, 481 A.2d

681 (1984); Pa.R.A.P. 1925(b).

from the Toyota had standing, they did not have a suffi-

cient expectation of privacy to contest the search. At

that point, the Commonwealth noted that although its

argument was directed at the suppression motions filed

by the men in the Toyota, it also included Appellant.

Specifically, the Commonwealth stated that 411 Pa. Super. 329, 342, 601

Commonwealth v. Phillips,

A.2d 816, 822 (1992), aff'd, 534 Pa. 423, 633 A.2d 604

(1993). Moreover, as the Commonwealth specifically

failed to raise this issue, it was not addressed by either

the Court of Common Pleas or the Superior Court and

thus, effective appellate review is precluded. See Com-

, 513 Pa. 138, 518 A.2d 1197

(1986), cert. denied, 480 U.S. 935 (1987) (this Court

refused to address an exclusionary rule issue which the

Commonwealth failed to adequately preserve). There-

fore, the standing and expectation of privacy issues were

waived, and as such, they do not merit review.

whether [Appellant] has a reasonable

expectation of privacy based on [the fact

that he used a key to open the trunk], we

would dispute that.

(N.T. ILL at 5).

Nevertheless, after the grant of suppression on

Appellant’s motion and after having been ordered to file

a full and complete statement of the matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b), the Com-

alth submitted the following issue: |

a paaeaiey ie5.: It is well established that when a motion to

suppress has been filed, the Commonwealth bears the

burden to establish by a pr teetadinn di megeagaay

that the evidence is admissible.’ Commonwealth v.

Did the lower court err in granting defen-

dant’s motion to suppress based on a

determination that police officers cannot

search a vehicle without first obtaining a

search warrant, even though probable

cause exists to believe the vehicle con-

tains contraband?

3 The Commonwealth shall have the burden

of going forward with the evidence and of

establishing that the challenged evidence

(continued...)

App. 6 App. 7

Johnsonna, 420 Pa. Super. 434, 438, 616 A.2d 1376,

1378 (1992), alloc. denied, 625 A.2d 1191. Further-

more, while reviewing the ruling of a suppression court,

our role is limited to determining whether the factual

findings are supported by the record, Commonwealth v.

DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992),

and whether the legal conclusions drawn from those

facts are correct. Commonwealth v. Morris, 537 Pa.

417, 420, 644 A.2d 721, 723 (1994) (citing Common-

wealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112,

cert. denied, 474 U.S. 950 (1985)).

This Court has consistently recognized the well

established principle that the Fourth Amendment to the

United States Constitution” and Article 1, § 8 of the

3(._ continued)

was not obtained in violation of the

defendant’s rights. The defendant may

testify at such hearing, and, if he does so,

does not thereby waive his right to remain

silent during the trial.

Pa.R.Crim.P. 323(h).

+ The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and sei-

zures, shall not be violated, and no War-

rants shall issue, but upon probable cause,

supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to be

seized.

U.S. CONST. amend. IV.

App. 8

Pennsylvania Constitution? generally require that

searches be predicated upon a warrant issued by a

neutral and detached magistrate. Searches conducted

outside the judicial process, that is, without a warrant,

are generally deemed unreasonable for constitutional

purposes. Commonwealth v. Holzer, 480 Pa. 93, 102,

389 A.2d 101, 106 (1978) (citing Coolidge v. New

Hampshire, 403 U.S. 443 (1971)). However, a well

established exception to the warrant requirement exists

for certain automobile searches. Commonwealth v.

Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346, 1349 (1985).

The automobile exception was first enunciated by

the United States Supreme Court in Carroll v. United

States, 267 U.S. 132 (1925). Chief Justice Taft, writing

for the majority, traced the history of the Fourth

Amendment and the legislative enactments of the First,

Second and Fourth Congresses. In so doing, the

Supreme Court concluded that

a difference [was] made as to the neces-

sity for a search warrant between goods

subject to forfeiture, when concealed in a

dwelling house or similar place, and like

5 The people shall be secure in their

persons, houses, papers and possessions

from unreasonable searches and seizures,

and no warrant to search any place or to

seize any person or things shall issue

without describing them as nearly as may

be, nor without probable cause, supported

by oath or affirmation subscribed to by

the affiant.

PA. CONST. art. 1, § 8.

App. 9

goods in course of transportation and

concealed in a movable vessel where they

readily could be put out of reach of a

search warrant.

Carroll, 267 U.S. at 151. More specifically, the Court

held that

since the beginning of the government,

[the guaranty of freedom from unreason-

able searches and seizures has been

construed] as recognizing a necessary

difference between a search of a store,

dwelling house, or other structure in

respect of which a proper official warrant

readily may be obtained and a search of a

ship, motor boat, wagon, or automobile

for contraband goods, where it is not

practicable to secure a warrant, because

the vehicle can be quickly moved out of

the locality or jurisdiction in which the

warrant must be sought.

Id. at 153.

Having concluded that impracticality in securing

a warrant could permit a warrantless search for contra-

band carried in a vehicle, the Supreme Court addressed

the circumstances under which such a search would be

constitutionally permissible. The Court opined that

[t}he measure of legality of such a seizure

is therefore, that the seizing officer shall

have reasonable or probable cause for

believing that the automobile which he

App. 10

Id. at 155-56.

Subsequent to Carroll, the United States Supreme

Court also determined that given probable cause to

search an automobile,

[flor constitutional purposes, [there is] no

difference between on the one hand seiz-

ing and holding a car before presenting

the probable cause issue to a magistrate

and on the other hand carrying out an

immediate search without a warrant.

Chambers v. Maroney, 399 U.S. 42, 52 (1970).

When reviewing warrantless automobile searches

in this Commonwealth, we have constantly held that

"there is no ‘automobile exception’ as such and [that]

the constitutional protections are applicable to searches

and seizures of a person's car." Commonwealth v.

Holzer, 480 Pa. 93, 103, 389 A.2d 101, 106 (1978) (cit-

ing Coolidge v. New Hampshire, 403 U.S. 443 (1971)).

re ap verge ne we have nevertheless

described two reasons why exigent circumstances often

excuse the need to secure a warrant:

First, a vehicle is highly mobile and the

likelihood is therefore great that it and its

contents may never be found if police

were prohibited from immobilizing it until

a warrant can be secured;

App. 11

[s]econd, one’s expectation of privacy

with respect to an automobile is

significantly less than that relating to

one’s home or office.

Id. (citations omitted).©

In Commonwealth v. Milyak, 508 Pa. 2, 493

A.2d 1346 (1985), the defendant sought to suppress

evidence which police had obtained by searching his

vehicle without a warrant. In that case, we reiterated

that

there is an established departure from the

warrant requirement for certain auto-

mobile searches based on the inherent

mobility of vehicles, with the consequent

practical problems in obtaining a warrant

prior to infringing a legitimate expectation

of privacy, and on the "diminished expec-

tation of privacy which is accorded auto-

mobiles because of their open construc-

tion, their function, and their subjection to

a myriad of state regulations."

Commonwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d

1346, 1349 (1985) (citing Commonwealth v. Timko, 491

In 1968, this Court recognized that "sometimes [it]

may be reasonable to search a movable vehicle without a

warrant," however, we nevertheless held that "the

movability of the area to be searched is not alone a suf-

ficiently ‘exigent circumstance’ to justify a warrantless

search." Commonwealth v. Cockfield, 431 Pa. 639, 644,

246 A.2d 381, 384 (1968).

App. 12

Pa. 32, 38, 417 A.2d 620, 623 (1980)). Furthermore, in

order for a warrantless search to fit within the exception,

an officer must have independent probable

cause to believe that a felony has been

committed by the occupants of the

vehicle, or that it has been used in the

furtherance of the commission of a

felony, or the officer must have a basis

for believing that evidence of a crime is

concealed within the vehicle, or that there

are weapons therein which are accessible

to the occupants.

Id. at 8, 493 A.2d at 1349 (citing Commonwealth v.

Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971)). Con-

sequently, based upon state and federal constitutional

standards, we concluded that "where there exists prob-

able cause related to the vehicle or its occupants, a

search of the vehicle is permissible." Id.

In 1988, we had the opportunity to review

another automobile exception case. In Commonwealth

v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988), the police

had received a tip from a reliable informant that defen-

dant was carrying a gun in his automobile. A few min-

utes after having received the tip, the police discovered

defendant’s vehicle in a parking lot. A search of defen-

dant’s vehicle revealed a six-inch revolver under the

driver’s seat. We agreed with the Superior Court that

the gun was admissible evidence because the need for a

warrant was excused by the presence of probable cause

and exigent circumstances. Id. at 148, 541 A.2d at

1383. We discussed the constitutional analysis as fol-

lows:

App. 13

It is well established that automobiles are

not per se unprotected by the warrant

requirements of the Fourth Amendment,

and of Art. 1, § 8 of the Pennsylvania

constitution. Commonwealth v. Holzer,

480 Pa. 93, 389 A.2d 101 (1978). Never-

theless, certain exigencies may render the

obtaining of a warrant not reasonably

practicable under the circumstances of a

given case, and when that occurs, vehicle

searches conducted without warrants have

been deemed proper where probable cause

was present. See Commonwealth v.

Milyak, 508 Pa. 2, 493 A.2d 1346 (1985);

Commonwealth v. Holzer, [480 Pa. 93,

389 A.2d 101 (1978)}; Commonwealth v.

Lewis, 442 Pa. 98, 275 A.2d 5! (1971)...

Id.

In Baker, we recognized that the search of defen-

dant’s vehicle took place just thirty minutes after the

information from the reliable informant had been

received by the police. Because of the tipster’s reli-

ability and because the police were able to corroborate

independently the type of vehicle in which defendant

was riding, probable cause existed to conduct the search,

and, as a result, "the exigencies of the mobility of the

vehicle and of there having been inadequate time and

opportunity to obtain a warrant rendered the search

proper." Id. at 149, 541 A.2d at 1383. However, we

specifically noted that

[t]his is not a case where police knew

hours in advance that a particular vehicle

carrying evidence of crime would be

parked in a particular locale, such that it

App. 14

would have been reasonably practicable to

obtain a search warrant before encounter-

ing the vehicle to be searched.

Id.

In 1991, we again addressed the constitutionalits

of a warrantless automobile search, having been asked to

determine whether there was sufficient probable cause to

search the automobile, and if so, were the circumstances

such that a warrant was not required. Commonwealth v.

Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991). In that

case, police had received information from two reliable

informants regarding defendants’ drug dealing activities.

The police received tips on November 15, 1985, Novem--

ber 23, 1985 and November 27, 1985. Each time, the

police were informed that the defendants were coming to

York to sell cocaine, and, at least on one occasion, the

police had been informed where the deliveries were

taking place. The type of vehicle which the defendants

used had been established on November 15, 1985. On

November 27, 1985, the police spotted the defendants’

car pulling away from the residence which the informant

had described as the delivery location. The police

stopped the defendants and conducted a search of the

car.

We affirmed the trial court’s denial of the defen-

dants’ motion to suppress, beginning our discussion by

analyzing whether, under the "totality of the circum-

stances" test, the police had sufficient probable cause to

search the vehicle. We concluded that they did. There-

after, we addressed the defendants’ argument that no

exigencies existed especially because the police had ade-

quate time within which to secure a warrant. We held

that because the police encountered defendants’ vehicle

as it was moving away from the alleged delivery locale,

App. 15

there was no opportunity for the police to secure a

warrant. We concluded that

where police do not have advance knowl-

edge that ‘a particular vehicle carrying

evidence of crime would be parked in a

particular locale, ... the exigencies of the

mobility of the vehicle and of there

having been inadequate time and epportu-

nity to obtain a warrant rendered the

search [without a warrant] proper.’

Commonwealth v. Rodriguez, 526 Pa. 268, 274, 585

—A.2d 988, 991 (1991) (citing Commonwealth v. Baker,

518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988)).

Accordingly, we held that both probable cause and

exigent circumstances existed to justify the warrantless

search of the automobile.

Recently, we again had the occasion to address

the admissibility of evidence seized during a warrantless

search of an automobile in Commonwealth v. White,

__ Pa. __, =~ A.2d__ (1995). In that case, the

Pittsburgh Police Department had received numerous

telephone calls from anonymous sources. Those sources

informed the police that William White and Henry Ben-

nett were dealing drugs, and furthermore, they described

the location where the drug sales were taking place.

After corroborating that information with information

received from a confidential informant, the police

arranged a controlled drug purchase in January of 1990,

which was observed by two officers.

One month later, the police received information

from the informant that he had observed a large supply

of cocaine at Bennett’s residence, that drugs were being

transported back and forth between Bennett’s and

App. 16

White’s homes and that a sale was scheduled for Satur-

day, February 17, 1990, behind Abbot’s Beer Distribu-

tor. Based on this information, the police arranged for

surveillance of the area. Prior to setting up surveillance,

the two officers who had observed the January drug

transaction briefed other members of the police depart-

ment, informing them that a blue car was expected to be

involved in a drug transaction.

Furthermore, before actually conducting the sur-

veillance, police sought and obtained search warrants for

Bennett's residence, Bennett's vehicle, Bennett's person,

White’s residence and White’s person, but not White's

automobile. While conducting the surveillance, police

observed White drive his automobile into the location of

the alleged sale. At that point, an unidentified individ-

ual got into the car. The police surrounded White's

vehicle and took its two occupants into police custody.

A warrantless search of White’s automobile was con-

ducted and cocaine was discovered.

The Superior Court reversed the trial court's sup-

pression order, concluding that the warrantless search

had been properly conducted pursuant to the automobile

exception. The Superior Court reasoned that because the

officers did not know which vehicle would be used to

facilitate the transaction, the use of White’s automobile

was an unforeseeable circumstance which provided the

necessary exigency.

We disagreed. Based upon an earlier per curiam

affirmance in Commonwealth v. lonata, 518 Pa. 472,

App. 17

544 A.2d 917 (1988),” we held that when the police

Justice Flaherty wrote the opinion in support of

affirmance in lonata. Therein, he noted that the police

had advance information that defendant would be

transporting contraband in his vehicle. In that regard,

Justice Flaherty determined that

[b]y neglecting to obtain a warrant

covering the vehicle, and by approaching

appellee immediately upon his arrival, the

officers inexplicably took the risk that

appellee would at least temporarily have

kept the drugs in the automobile, and,

thus, they took the risk that appellee

would not yet have moved any of the

contraband into areas covered by the

search warrant. In short, this case does

not involve a search conducted under

exigent circumstances; rather, it involves a

search undertaken after the police had,

through oversight or lack of planning,

failed to obtain a warrant to search a

vehicle that they knew hours in advance

would be parked at appellee's apartment

after it had been used to transport

contraband. Indeed, it would be difficult

to conceive of a case where the

circumstances surrounding a challenged

search would be more clearly non-exigent

than those presented here. Thus,

inasmuch as obtaining a warrant would

certainly have been practicable,

suppression of the items seized in the

instant search was entirely proper.

(continued...)

App. 18

have ample advance information that a search of an

automobile is likely to occur in conjunction with appre-

hension of a suspect, "a warrant is required before the

automobile may be searched." Commonwealth v. White,

Pa.at , A2d__. Moreover, based upon

our analysis of Chambers v. Maroney, 399 U.S. 42

(1970), we held that

although the Fourth Amendment generally

requires probable cause to be determined

and a warrant to be issued by a magistrate

before a search may be conducted,

ceed eaniatan 6

lonata and in this case, there were no

unforeseen circumstances. Police knew in

advance what automobiles might be

involved and could have requested

warrants for the search of the auto-

mobiles, just as they did for persons and

dwellings.

Id. at , A2dat (footnote omitted) (emphasis

supplied).

We also disagreed with the Superior Court's con-

clusion that the officers’ lack of knowledge with respect

to which vehicle would be used constituted an unfore-

seen circumstance. Rather, we concluded that the lack

1 ...continued )

Commonwealth v. lonata, 518 Pa. 472, 479, 544 A.2d

917, 920-921 (1988).

App. 19

of knowledge was not sufficient to qualify as an

unforeseen circumstance because the "[p]Jolice could

have drafted their request for a warrant in terms that

were ‘as particular as is reasonably possible’ ... in order

to secure the warrant." Id. at_— on. 3, AQdat

n. 3 (citing Commonwealth v. Grossman, 521 Pa. 290,

296, 555 A.2d 896, 899 (1989)).

Therefore, we conclude that this Common- .

wealth’s jurisprudence of the automobile exception has

long required both the existence of probable cause and

the presence of exigent circumstances to justify a

warrantless search. Furthermore, we have consistently

recognized that when police have advance information

that a particular vehicle carrying evidence of a crime

would be situated at a particular locale, such that suffi-

cient time exists to obtain a warrant, the failure of the

police to secure a warrant prior to searching the vehicle

will render the search unreasonable. This holding is

equally applicable when police have advance informa-

tion that a particular vehicle carrying contraband to be

used in the commission of a crime will be parked in a

- specific location.

Consequently, the Superior Court erroneously

held that evidence seized during a warrantless auto-

mobile search was admissible without first requiring the

Commonwealth to demonstrate that exigent circum-

stances prevented them from obtaining a warrant.

Therefore, we now turn to Appellant’s argument

that the Court of Common Pleas correctly determined

that the warrantless search of this stationary vehicle

violated constitutional guarantees because the police had

substantial time, information and opportunity to obtain a

warrant in advance of the search. As such, we must

App. 20

determine whether the suppression court's factual find-

ings are supported in the record.

A review of the record indicates that Officer

Nimmo conducted surveillance of Auburn Street on

August 24, 1990. At that time, he was already familiar

with that particular street as he had made numerous

narcotics arrests there within the previous six weeks.

Furthermore, he had information from various sources

regarding drug sales on Auburn Street and the use of a

Lincoln automobile. At the suppression hearing, testi-

mony with respect to Officer Nimmo’s prior knowledge

was as follows:

Q. incidentally, what was your purpose

in going to that surveillance point that

day?

A. The information | had that cocaine

was being sold at that location. | had

further information that the one male

received large quantities of cocaine. My

intention was to try to take off what was

being delivered.

Q. Well, what information did you have

about the delivery taking place?

A. I had information that Raphael

Melendez lived at 913 Auburn Street. He

was the one that had the workers on the

street and that he had received, he would

receive his cocaine. It would be delivered

on Auburn Street and he used several cars

to store the stuff. One was a Lincoln.

App. 21

There was another car on the north side

of the street. I don’t recall what that was

now. It was an abandoned car. There

was no tags on that.

Q. And when did you get that informa-

tion?

A. I had gotten that information from

numerous, from several places, from my

own investigation, from other people that

had been arrested, from people that called

from the neighborhood.

Q. And how long had you had that infor-

mation before you went to make your

surveillance that day?

A. I had been doing surveillances on that

street and I had made several arrests,

other arrests.

The trial court also had the following exchange with

Officer Nimmo:

Q. Could you describe the physical

condition of [the Lincoln] to me?

A. The outside, the side and the rear that

I saw looked fairly decent. It wasn’t in

Q. Did it have four tires on it?

A. Four tires. It had the glass, It looked

like it would be legal for the highway.

Ap). 22

Q. It had a tag?

A. Yes, sir.

Q. Is it your testimony that before you

went out to Auburn Street you had

specific information about this Lincoln

automobile before you got there that day?

A. That and another car, yes, sir.

Moreover, Officer Scarpato testified regarding the

back-up assistance as follows:

Q. on that particular detail, you were part

of the surveillance detail?

A. | was part of the backup unit.

Q. The backup unit for the surveillance

detail.

A. That's correct.

Q. How many brother officers were with

you in that backup unit?

A. In my vehicle, there was three other

officers. And there were two more

vehicles. I’m not sure how many officers

were in that.

Q. Had you met to discuss the game

plan, if you will, prior to setting up the

surveillance?

App. 23

A. [After Judge Lord overruled an objec-

tion of counsel] We had talked about it up

in headquarters prior to going out.

Q. And how many people were part of

that group that talked at headquarters and

ultimately went out to the field?

A. I would say eight or nine.

The suppression court concluded that because

Officer Nimmo had information prior to establishing

surveillance, the automobile exception was inapplicable.

Specifically, the court determined that the exception

based on exigencies was inapplicable because

the police appear to have known well in

advance of their search that a particular

vehicle, the blue Lincoln, carrying evi-

dence of a crime would be parked in a

particular location, the 900 block of

Auburn Street.

Commonwealth v. Labron, Nos. 2318-29, slip op. at 8

(C.P. Philadelphia County, July 31, 1992).

Based upon our review of the record, we believe

that sufficient evidence exists in the record to support

the suppression court's finding that Officer Nimmo had

sufficient, perhaps even specific, information about the

blue Lincoln automobile prior to setting up surveillance.

He had information from numerous sources, including

his Own participation in other arrests, that drug sales

were occurring on Auburn Street. He was investigating

Melendez because he also had information that Melen-

dez was in charge of the drug sales on that street. He

additionally had information that Melendez used several

App. 24

cars parked on the street in which to store the drugs and

that a Lincoln was one of those cars. Furthermore,

Officer Nimmo testified that prior to setting up the

surveillance, he had specific information about that

Lincoln.

Therefore, we reverse the order of the Superior

Court.

Mr. Justice Castille files a Dissenting Opinion.

Mr. Justice Montemuro participates by designa-

tion as a senior judge as provided by Rule of Judicial

Administration 701(f).

Judgment entered

Dated: January 12, 1996

‘s/__

Charles W. Johns, Esquire

Prothonotary

App. 25

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF : No. 43 Eastern

PENNSYLVANIA, : District Appeal

Appellee, : Docket 1994

Appeal from the Judg-

ment of Superior

Court entered January

6, 1993 at No. 1276

: PHL 1992, reversing

v. : the Order entered on

: March 5, 1992 in the

Court of Common

Pleas, Criminal Divi-

sion, Philadelphia

County at No. 9009-

2318-19

EDWIN LABRON, - ARGUED:

Appellant . : January 25, 1995

DISSENTING OPINION

DECIDED:

December 29, 1995

MR. JUSTICE CASTILLE

Although the majority correctly characterizes

Pennsylvania law regarding the "automobile exception"

to the warrant requirement, I write separately only

because I do not believe that this case should have been

allowed to proceed to this point because, although the

Commonwealth inexplicably has conceded standing in its

brief, | do not believe appellant has such standing as to

App. 26

have a right to be before this or any Court to seek sup-

pression of the evidence in issue. I, therefore, dissent to

the majority's consideration of the merits of appellant's

suppression claim as I do not believe this Court should

rule upon matters wherein the complaining pa-ty has no

standing. | further disagree with the majority s reversal

of the Superior Court because even if appellant has

standing, he nevertheless does not have a reasonable

expectation of privacy that would warrant suppression of

the illegal drugs seized from a third party’s car.

Although these issues upon which I would base

our affirmance of the Superior Court’s ruling were not

raised by the Commonwealth either on appeal to the

Superior Court or in the brief to this Court, it is well

established that this Court may affirm the order of the

court below if the result it reached is correct for any

reason. Commonwealth v. Allsup, 481 Pa. 313, 317,

392 A.2d 1309, 1311 (1978) (Superior Court based rul-

ing on Constitutional issue, but this Court raised the

issue of statutory interpretation sua sponte and affirmed

on those grounds); Commonwealth v. Triplett, 476 Pa.

83, 90 n.10, 381 A.2d 877, 881 n.10 (1977) (Court sua

sponte raised waiver issue and based affirmed order on

those grounds); Commonwealth v. Colon, 461 Pa. 585

n.5, 337 A.2d 554, 558 n.5 (1975), cert. denied, 423

U.S. 1056 (1976) (Court sua sponte found statement

which was suppressed by trial court as hearsay to be

inadmissible because not relevant); Commonwealth v.

Hines, 461 Pa. 462, 464 n., 336 A.2d 280, 282 n.2

(1975) ("While the question of waiver has not been

raised by any party to this litigation, this Court may

affirm an order if it is correct for any reason."), citations

omitted. Because appellant did not have standing and

therefore did not have a right to bring the issue of the

validity of the search before the courts, | believe this

App. 27

issue should be raised sua sponte and | would affirm the

order of the Superior Court on those grounds.

In order to challenge the admission of evidence

at a criminal trial, a defendant must, as a fundamental

prerequisite, show that he has standing to challenge the

search or seizure by which the government obtained the

evidence. See Rakas v. Illinois, 439 U.S. 128, 140

(1978) (courts applying federal law must first determine

whether a particular search violated protected fourth

amendment interests before examining the legality of the

search). See also Commonwealth v. Peterson, 535 Pa.

492, 497, 636 A.2d 615, 617 (1993) (having first had

his standing acknowledged, a criminal defendant is only

then permitted to assert the merits of his suppression

motion). The standing requirement in the criminal sup-

pression context narrows the reach of the exclusionary

rule by limiting the field of individuals permitted to

challenge an illegal search or seizure. The standing

requirement thereby helps conserve scarce judicial

resources. See Wm. Penn Parking Garage, Inc. v. City

of Pittsburgh, 464 Pa. 168, 191, 346 A.2d 269, 280

(1975).

The United States Supreme Court limits Fourth

Amendment standing to those criminal defendants who

can demonstrate a “legitimate expectation of privacy” in

an item seized or the area searched. ser vent gg

tucky, 448 U.S. 98, 104 (1980) (defendants must show

not just that the search was illegal, but that the search

violated the defendant’s legitimate expectation of pri-

vacy in the area searched); Rakas, supra, 439 U.S. at

140 (since the Fourth Amendment protects personal

rights, a government search that does not invade an area

in which the defendant has a legitimate expectation of

privacy does not violate the defendant’s fourth amend-

ment rights). To confer standing under the federal

App. 28

standard, the defendant's expectation of privacy must be

both (1) subjectively held; and (2) reasonably justified.

Rakas, supra at 143 & n.12.

Under Article I, Section 8 of the Pennsylvania

Constitution, however, this Court looks to several addi-

tional factors to determine whether a criminal defendant

has standing to challenge the admission of evidence

against him. To gain standing to challenge the admis-

sion of evidence at a criminal trial, a Pennsylvania

defendant must prove that (1) he was present on the

premises at the time the police searched it or seized

evidence from it; or (2) he has a possessory interest in

the evidence seized; or (3) the offense with which he is

charged includes "possession" at the time of the con-

tested search as an essential element of the prosecution's

case; or (4) he has a proprietary or possessory interest in

the searched premises. Commonwealth v. Peterkin, 511

Pa. 299, 309-311, 513 A.2d 373, 378 (1986), cert.

denied, 479 U.S. 1070 (1987); Commonwealth v. Treftz,

465 Pa. 614, 621-622, 351 A.2d 265, 268, cert. denied,

426 U.S. 940 (1976) (adopting Brown v. United States,

411 U.S. 223 (1973)).

Here, although Melendez or even Santiago may

have been able to assert a colorable standing claim on

the instant facts, appellant could not assert any interest

sufficient to confer upon him the standing necessary to

challenge the admission of the evidence against him

under the above four-pronged test. First, appellant was

not "present" on the "premises" of the blue Lincoln at

the time the police searched its trunk because appellant

was not a passenger in the car but was in fact standing

away from the car at the time of his arrest and the

search of the trunk. See Commonwealth v. Gallagher,

276 Pa. Super. 593, 595-597, 419 A.2d 616, 618-619

(1980) (since appellant was not a passenger of the van at

App. 29

the time the police searched the van, appellant was not

"present" at the premises searched). See also Common-

wealth v. Johnson, 431 Pa. Super. 291, 297, 636 A.2d

656, 659 (1994), appeal denied, __ Pa. _, 651 A.2d

534 (1994) (defendant abandoned reasonable expectation

of privacy in bag containing contraband by placing it in

a tree in a public park and standing 10 to 12 feet away

and approaching bag only to show crack cocaine in bag

to potential customer).

Second, appellant cannot reasonably assert any

possessory interest sufficient to give him standing in the

cocaine seized from the trunk of the car. The car

belonged to Melendez and appellant's access to the car

was regulated by Melendez and Santiago. Appellant

could not assert a reasonable claim to a possessory

interest in the cocaine inside the trunk of the car since

access was controlled by others.

Third, the offense with which appellant was

charged did not include possession at the time of the

contested search and seizure as an essential element of

the prosecution’s case. The Commonwealth charged

appellant only with delivery of a controlled substance,

not possession, and with criminal conspiracy as a result

of his delivery of a controlled substance to Melendez.

When a person "meaningfully abdicates his control,

ownership or possessory interest" in a possession he no

longer has a Constitutionally protected interest in that

possession. Commonwealth v. Sell, 504 Pa. 46, 67, 470

A.2d 457, 469 (1983). Once appellant delivered the

lin Sell, this Court declined to abrogate the doctrine

of automatic standing as the United States Supreme

Court had done in United States v. Salvucci, 448 U.S.

(continued...)

App. 30

controlled substance to Melendez and Santiago, he had

surrendered his interest therein and was no longer enti-

tled to the constitutional protection against search and

seizure afforded personal property. See also Pennsylva-

nia Standard Criminal Instructions §16.13(a)(30)(B) (Pa.

Bar Inst. 1980) (noting no provision for the defendant’ s

possession of a controlled substance necessary to convict

the defendant of delivery of a controlled substance).

In Peterkin, supra, this Court held that the appel-

lant had no standing to challenge the search of the home

of an acquaintance in which a firearm was found

because the only possessory crime with which he was

charged w~ .»ssession of an instrument of crime in the

comm. ... .° a robbery and double murder. This

Court determined that the appellant was not entitled to

automatic standing because the Commonwealth’s case

against him on that possessory crime was not dependent

on the appellant’s possession of the firearm at the time

of the search, but rather depended on his possession of

the firearm at the time of the murders and robbery.

Under this analysis, whether appellant in the case sub

judice possessed the controlled substance at some point

before he delivered it to Melendez is irrelevant for the

purposes of automatic standing. Because appellant did

not actually or constructively possess any controlled

I(...continued)

128 (1978). The appellant in that case had been charged

with receiving stolen property. This Court held that the

appellant had automatic standing because possession was

an essential element of the crime charged. That holding

was based on the fact that receiving, by definition,

entails the acquisition of possession. Delivery, on the

other hand, entails surrendering possession to another.

App. 31

substance at the time of the contested search he is not

entitled to automatic standing under this prong.

_ Finally, appellant cannot claim any proprietary

interest in the automobile because Melendez owned the

blue Lincoln, not appellant. Further, appellant cannot

claim any possessory interest in the car because Melen-

dez, the car’s owner, controlled access to the trunk of

the car. Even when Melendez left the scene, he left the

keys to the car with Santiago, not appellant. Although

Santiago later directed appellant to open the trunk of the

car to put another plastic bag into the trunk, appellant

complied with his instructions and then immediately

returned the keys to Santiago. Since the owner of the

car, Melendez, entrusted the keys to the car only to

Santiago and since appellant only had access to the keys

and to the trunk of the car at Santiago’s discretion,

appellant cannot reasonably claim any possessory inter-

est in the car or contents therein. See Peterkin, supra

(appellant had no proprietary or possessory interest in

the home of an acquaintance).

Accordingly, under Peterkin, appellant canziot

assert any interest sufficient to confer standing to

challenge the admission of the cocaine into evidence at

his criminal trial. On this basis, the majority opinion

erred in considering the underlying merits of appellant’s

suppression claim.

Even if appellant has standing to challenge the

search, he nevertheless does not have a reasonabie

expectation of privacy in the items seized or the place

searched that would warrant suppression. Peterson,

supra. In order to invoke the remedy of suppression,

appellant

App. 32

must demonstrate that he held such a

privacy interest which was actual, soci-

etally sanctioned as reasonable, and

justifiable in the place invaded that the

warrantless entry of the police violated his

right under the Constitution of this Com-

monwealth, Article 1, Section 8, to be

“secure ... against unreasonable searches

Id. (citation omitted). Because appellant did not have a

possessory or proprietary interest in the place searched

or the items seized and was not present when the search

was conducted, he did not have a legitimate expectation

of privacy which would entitle him to suppression of the

cocaine. Therefore, even if appellant had standing to

challenge the search and seizure, he is not entitled to

suppression. Id. (appellant is not entitled to suppression

of items seized in search of abandoned storefront

because he did not have an expectation of privacy which

society recognizes as legitimate); Commonwealth v.

McCullum, 529 Pa. 117, 134, 602 A.2d 313, 321 (1992)

(appellant is not entitled to suppression of items seized

in search of another’s home because he did not have a

legitimate expectation of privacy in the premises

searched).

Unfortunately, the majority’s decision vastly

expands the reach of the privacy protections of the

Pennsylvania and United States Constitutions to areas

where it is not warranted -- that is, to situations where a

defendant has no legitimate expectation of privacy, has

no ownership interest at stake and was not present at or

in the location searched at the time of the search. In so

doing, a criminal in Pennsylvania now arguably even has

standing to challenge drugs he delivered to another

person but were then seized from that person by a police

App. 33

officer. This decision gives unwarranted protection to

the purveyors of death in Pennsylvania’s communities

and effectively ties the hands of law enforcement in its

efforts to root out the scourge of drugs in our society. |

therefore respectfully dissent.

App. 34

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA : COURT OF PENNSYL-

Appellant : VANIA

No. 01276

EDWIN LABRON Philadelphia 1992

Appeal from the Order Entered March 5,

1992 in the Court of Common Pleas of

Philadelphia County, Criminal No. 9009-

2318-19

BEFORE: CIRILLO, KELLY and HESTER, JJ.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court that the

judgment of the Court of Common Pleas of Philadel-

phia County be, and the same is hereby REVERSED.

BY THE COURT:

/s/ David A. Szewezak

PROTHONOTARY

Dated:_January 6, 1993 _

App. 35

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA : COURT OF PENNSYL-

Appellant : VANIA

: No. 01276

EDWIN LABRON : Philadelphia 1992

Appeal from the Order Entered March 5,

1992 in the Court of Common Pleas of

Philadelphia County, Criminal No. 9009-

2318-19

BEFORE: CIRILLO, KELLY and HESTER, JJ.

MEMORANDUM: FILED JAN 6 1993

This is an appeal by the Commonwealth from an

order suppressing the evidence seized during a war-

rantless search of a parked automobile. The Common-

wealth has certified that the suppression order terminates

or substantially handicaps its case. Commonwealth v.

Dugger, 506 Pa. 537, 486 A.2d 382 (1985). We

reverse.

The Commonwealth asks whether the trial court

erred when it found that cocaine seized from a parked

car was seized pursuant to an unreasonable search and

seizure and was, therefore, not admissible at trial.

When we review an order suppressing evidence,

suppression court, Commonwealth v. Hamlin, 503 Pa.

210, 469 A.2d 137 (1983); however, we must reverse if

we find an error of law. Commonwealth v. Cortez, 507

Pa. 529, 491 A.2d 111, cert. denied, 474 U.S. 950

(1985). We must first determine whether the suppres-

sion court's factual findings and legal conclusions are

App. 36

oy 4 Commonwealth v. Lopez, _

Pa. Super. —_, 609 A.2d 177 (1992) (citing Common-

wealth v. Vinson, 361 Pa. Super. 526, 522 A.2d 1155

(1987)). To determine whether the findings of fact are

supported by the record, we review only the evidence of

the appellee and so much of the evidence of the appel-

lant which, when read in the context of the record as a

whole, remains uncontradicted.

dix, 355 Pa. Super. 514, 513 A.2d 041 (1986) (citation

omitted). If the factual findings are supported by the

cit ee

With that standard of review in mind, we turn

first to the findings of fact by the trial court. An

undercover police officer, Gerald Nimmo, conducted an

intensive investigation of reports he received of drug

dealing in the 900 block of Auburn Street, Philadelphia.

Prior to August, 1990, Officer Nimmo had made five

arrests for drug violations on that block. Between his

sources and his own observations, Officer Nimmo con-

cluded that there was reason to believe that Rafael

Melendez was the manager of a team of retail drug

sellers, one of whom is the defendant in this case,

Edwin Labron, operating in the 900 block of Auburn

Street. His information was that Melendez was using a

1977 blue Lincoln to store the drugs until his sellers

needed to be re-supplied.

During a two-hour surveillance of the block of

Auburn Street, Nimmo watched Labron and another

man, identified only as Santiago, conduct a vigorous

retail trade in cocaine, exchanging small, clear plastic

packets filled with white powder for currency. Nimmo

estimated that he saw Labron and Santiago sell 100

packets of cocaine to fifty customers. Officer Nimmo

also saw Melendez approach the two men and then walk

App. 37

with them to the blue Lincoln. Melendez opened the

trunk of the the Lincoln with a key, reached into the

right side of the trunk, and removed a large plastic bag.

The bag contained smaller plastic bags each filled with

small packets of white powder. Melendez handed the

plastic bags to Labron and Santiago and received cash in

exchange. Labron and Santiago then resumed retail

sales on the street. A second exchange of plastic bags

from the Lincoln for money occurred a short while later.

Then Melendez gave Santiago a key and drove away in

another vehicle. Ten minutes later two more men drove

up in a blue Toyota. Santiago gave Labron a key,

Labron opened the trunk of the Lincoln, the men in the

Toyota gave Labron a plastic bag which Labron put in

the right rear of the trunk, closed the lid, and returned

the key to Santiago. The men in the Toyota drove

away. Officer Nimmo radioed for back up officers who

arrested Labron and Santiago. Another officer forced

the trunk lid open and recovered two plastic bags of

cocaine and a plastic baggie with five clear packets of

cocaine.

The Fourth Amendment to the U.S. Constitution

and Article I, Section 8 of the Pennsylvania Constitution

protect citizens from "unreasonable searches and sei-

zures.". Evidence derived from an unreasonable search

or seizure is inadmissible at trial. U.S. v. Katz, 389

U.S. 347 (1967). A search without a warrant is gener-

ally unreasonable. Mapp v. Ohio, 367 U.S. 347 (1961);

Commonwealth vy. Bosurgi, 411 Pa. 56, 190 A.2d 304

(1963) cert. denied, 375 U.S. 910 (1963). Police may

not search a home or any place in which a person has a

reasonable expectation of privacy without a warrant.

Katz, 389 U.S. at 357. A warrant is obtained after a

neutral magistrate finds that probable cause exists for a

search for evidence of a crime. Aguilar v. Texas, 378

U.S. 108, 109 (1964). Probable cause is a product of a

App. 38

totality of the circumstances presented to the magistrate.

Illinois v. Gates, 462 U.S. 213, 230 (1983). See also

Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d

988 (1991).

There are, however, exceptions to the warrant

requirement. One is the automobile exception. Auto-

mobiles are excepted from the warrant requirement

because they are inherently mobile and citizens have a

lower expectation of privacy in their cars than in their

homes. Vv 508 Pa. 2, 493 A.2d

1346 (1985). There is a lowered expectation of privacy

in a vehicle because it is regulated, inspected periodi-

cally, licensed and routinely stopped by police for vio-

lations. California v, Carney, 471 U.S. 386 (1985).

Where there is a diminished expectation of privacy a

warrant is not required before the police may search.

Oliver v. United States, 466 U.S. 170 (1984) ("No tres-

passing" signs and fences do not create a reasonable

expectation of privacy sufficient to defeat the “open

fields" doctrine). Under the automobile exception an

officer may search a car if he has independent probable

cause to believe the automobile has been used in the fur-

therance of a felony or contains contraband or evidence

of a crime. Milyak, supra.

_ The suppression court found that although Offi-

cer Nimmo had probable cause to believe that illegal

drugs were in the trunk of the Lincoln, the Common-

wealth had failed to establish exigent circumstances to

justify a warrantless search. The trial court relied on

language in recent Pennsylvania Supreme Court deci-

sions regarding the warrantless searches of automobiles

to reason that the Commonwealth must demonstrate

some reason, some exigent circumstance, which

prevented obtaining a warrant. The suppression court

misapprehends the law of automobile searches.

App. 39

The trial court opinion relies on two recent

decisions of our supreme court to detail what exigent

circumstances would, it believed, justify a warrantless

automobile search. The trial court details the facts of

Vv , 526 Pa. 268, 585 A.2d

988 (1991), in which the warrantless search of a car was

justified based on information from reliable informants

and police surveillance and reads the case as finding that

the unknown make of the vehicle, its unpredictable loca-

tion, and the fact that the vehicle was moving when

stopped justified the warrantless search. The suppres-

sion court, however, misapprehends the initial question

in the Rodriguez case which was whether there was

"sufficient probable cause" to conduct the search of the

vehicle in the case. Id. at 270, 585 A.2d at 989. The

supreme court upheld this court's finding that "both

probable cause and exigent circumstances existed to jus-

tify the warrantless search of appellant's automobile.”

Id. at 275, 558 A.2d at 991. The supreme court did not

then hold, nor will we now hold, that both probable

cause and separate exigent circumstances are necessary

to conduct a warrantless search of an automobile. In

fact, the reasoning which would have required the police

to obtain a warrant before searching the vehicle was a

dissent in the Rodriguez case which received only two

other votes.

Probable cause is a necessary pre-condition to

any search; probable cause is necessary to obtain a

warrant and probable cause is necessary to conduct a

warrantless search under any of the exceptions to the

warrant requirement. The suppression court-quotes as

"unequivocal" language that:

It is well-established that automobiles are

not per se unprotected by the warrant

requirements of the Fourth Amendment,

App. 40

and of Article I, § 8 of the Pennsylvania

Constitution. Nevertheless, certain exi-

gencies may render the obtaining of a

warrant not reasonably practical under the

circumstances of a given case, and, when

that occurs, vehicle searches conducted

without warrants have been deemed

proper where probable cause was present.

Commonwealth v. Baker, 518 Pa. 145, 148, 541 A.2d

1381, 1383 (1988). ibaa

Neither the quoted language nor the Baker

itself stand for the proposition on a warrant is dewalt

to search a vehicle absent exigent circumstances. The —

quoted language, that vehicles are not per se unprotected

by the warrant requirements, should rather be read to

say that any search must rest on probable cause, that

probable cause must be present before any search,

including a search of a vehicle. Further reading of the

quoted language moves directly into the exigent circum-

stances exception to the warrant requirement and con-

cludes that automobiles present exigent circumstances in

which probable cause is sufficient to justify a warrant-

less search. The language should not and cannot be read

to eo fa cienane eae test for a warrantless

search of an ile. In Baker the supreme court

upheld the warrantless search of a parked car which the

driver/defendant had left and which was surrounded by

police. The court held in Baker, "Since probable cause

to search the vehicle was present, a search warrant was

not required." Id. at 148, 541 A.2d at 1384.

We would do violence to the law and to the

practicalities of law enforcement if we required the

police and the Commonwealth to prove exigent circum-

stances above and beyond the inherent mobility of a

App. 41

vehicle before conducting a warrantless search of an

automobile. The automobile exception rests on lowered

expectations of privacy and the exigent circumstances

that a vehicle is inherently mobile. See Carroll v.

United States, 257 U.S. 132 (1925); United States v.

Ross, 456 U.S. 798 (1982); Milyak, supra. It is not,

however, the actual mobility of an automobile which

creates the automobile exception; a vehicle is presumed

to be mobile. See Milyak, supra; Commonwealth v.

Elliot, _ Pa. Super. _, 611 A.2d 731 (1992) (war-

rantless search at the police station upheld); Common-

wealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737

(1991) (vehicle searched without a warrant after the car

was parked and the driver in custody). It would be an

intolerable burden to demand that our police officers

determine whether a vehicle was actually driveable

before searching without a warrant. California v.

Carney, 471 U.S. 386 (1985). The automobile exception

‘to the warrant requirement demands only that an officer

have probable cause to believe that evidence of a crime

or contra will be found within the vehicle to reason-

ably search." If the police have probable cause to

search and automobile they may search all of the

lWe note that automobiles also may be searched

under wholly different rationales, such as to protect the

safety of a officer who has detained a driver or passen-

ger. Michigan v. Long, 463 U.S. 1034 (1983). Or, an

officer may search the passenger compartment incident

to arrest. New York v. Belton, 453 U.S. 454 (1981).

Police may also invoke the "plain view doctrine" when

they spot contraband in a vehicle. New York v. Class,

475 U.S. 106 (1986) (no search when officer spotted

butt of a gun when legitimately checking vehicle iden-

tification number). See also Commonwealth v. Robin-

son, 399 Pa. Super. 199, 582 A.2d 14 (1990).

App. 42

automobile where and when they choose and need not

demonstrate that exigent circumstances prevented them

from obtaining a warrant for the search. Probable cause

to search an automobile is probable cause to search

without a warrant. Chambers v. Maroney, 399 U.S. 42

(1970).

Thus, the question becomes did Officer Nimmo

have probable cause to believe the vehicle contained

contraband or evidence of a crime. Probable cause is

defined as "a substantial basis for concluding that a

search would uncover evidence of wrongdoing." Gates,

462 U.S. at 236. The level of probable cause needed to

invoke the automobile exception to the warrant require-

ment is the same as the probable cause needed for a

warrant. Milyak, 508 Pa. at 10, 493 A.2d at 1350.

We note that this case is distinguishable from

Lopez, supra, a case recently decided by a panel of this

court. In Lopez, after an initial lawful stop, the officer

pressed his investigation on no articulable basis. This

court held in Lopez that the ensuing search was unrea-

sonabie. In this case the probable cause is patent and

proved. Officer Nimmo watched the Lincoln being used

as a wholesale warehouse for drugs and saw the trunk

opened and drugs put in or taken out three times.

Thus, we find that Officer Nimmo had probable

cause to search the vehicle, Milyak, supra. With prob-

able cause to search the vehicle, he could search any

part of the vehicle, Ross, supra, and the Commonwealth

did not need to demonstrate any exigent circumstance

beyond that inherent in a motor vehicle.

Order reversed.

App. 43

IN THE COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH OF SEPTEMBER TERM,

PENNSYLVANIA : 1990

Vv.

EDWIN LABRON NOS. 2318-19

FILED

JULY 31 1992

COMMON PLEAS

COURT-PHILA.

APPEALS UNIT-

ROOM 601 C.H.

OPINION

Procedural History

Defendant Edwin Labron was charged with deliv-

ery of a controlled substance in violation of 35 P.S.

§780-113(30) and with criminal conspiracy in violation

of 18 Pa. C.S.A. §903. On November 20-21, 1991, this

Court conducted a hearing on a motion to suppress

physical evidence filed by Defendant, and on March 5,

1992, this Court granted Mefendant’s motion to suppress.

The Commonwealth now appeals, contending in its

Statement of Matters Complained of on Appeal that this

Court erred in granting Defendant’s motion to suppress

physical evidence. For the reasons set forth below, this

Court believes that the Commonwealth's appeal is with-

out merit.

App. 44

_ ee _

Findings of Fact

| The credible evidence at the hearing on the

motion to suppress established that a considerable time

prior to noon on August 24, 1990, Philadelphia police

officer Gerald Nimmo received information that led him

to believe that a Raphael Melendez, acting with others,

was selling cocaine in the 900 block of Auburn Street in

oe (N.T. 85)." Specifically, Officer Nimmo

testified:

A. I had information that Raphael Melen-

dez lived at 913 Auburn Street. He was

the one that had the workers on the street

and that he had received, he would

receive his cocaine. It would be delivered

on Auburn Street and he used several cars

to store the stuff. One was a Lincoln.

There was another car on the north side

of the street. I don’t recall what that was

now. It was an abandoned car. There

was no tags on that.

Q. And when did you get that information?

THE WITNESS: I had gotten that infor-

mation from numerous, from several

places, from my own investigation, from

other people that had been arrested, from

people that called from the neighborhood.

l Unless otherwise indicated, all references to the

notes of testimony are to the notes of testimony for

November 20, 1991.

App. 45

BY MR. GAY:

Q. And how long had you had that

information before you went to make

your surveillance that day?

A. I had been doing surveillances on that

street.

Q. I beg your pardon?

A. I had been doing surveillances on that

street and I had made several arrests,

other arrests. (N.T. 85-86)

Officer Nimmo testified that he had made five

arrests in the 900 block of Auburn Street in the six-week

period preceding August 24, 1990. (N.T. 7)

Officer Nimmo further testified:

"Q. Is it your testimony that before you

went out to Auburn Street you had

specific information about this Lincoln

automobile before you got there that day?

A. That and another car, yes, sir." (N.T.

138)

At approximately noon on August 24, 1990,

Officer Nimmo began a surveillance of the 900 block of

Auburn Street. (N.T. 8) A team of approximately ten

other officers was in close proximity to the 900 block of

Auburn Street to act as Officer Nimmo’s backup. (N.T.

95)

App. 46

Officer Nimmo continued his surveillance for

approximately two hours. (N.T. 119-22) During the

course of this surveillance, Officer Nimmo observed a

blue 1977 Lincoln automobile parked on the south side

of the 900 block of Auburn Street. (N.T. 11-12) In the

900 block of Auburn Street, Officer Nimmo also saw

Defendant and another male named Santiago exchanging

small clear plastic packets filled with white powder for

United States currency with numerous persons. (N.T. 9)

Based upon his observations and his extensive exper-

lence as a narcotics officers, Officer Nimmo reasonably

believed that the packets contained cocaine. (N.T. 9-10)

From his surveillance location, Officer Nimmo

later observed Raphael Melendez approach Defendant

and Santiago and the three men walked to the blue

Lincoln parked on Auburn Street. (N.T. 11-12) Melen-

dez opened the trunk of the Lincoln with a key, reached

into the right rear side of the trunk, and removed a large

plastic bag. This bag contained smaller clear plastic

baggies, each filled with small packets of white powder.

(N.T. 12-13) Based upon his observations and exper-

ience as a narcotics officer, Officer Nimmo reasonably

believed that the packets contained cocaine. (N.T. 13)

Melendez handed the baggies filled with packets to

Defendant Labron and to Santiago, received United

States currency from them, and closed the trunk. (N.T.

12-13) Santiago and Defendant Labron then continued

to make numerous exchanges of the white powder-filled

packets for United States currency.

Sometime thereafter, Melendez again went to the

blue Lincoln, received money from Defendant Labron

and Santiago, and handed each of time a clear plastic

bag containing packets of white powder which he

retrieved from the right rear of the trunk. (N.T. 14)

Several minutes later Melendez approached Santiago,

App. 47

handed him a key, and drove away in another vehicle.

Santiago and Defendant Labron continued to make their

exchanges of the packets. (N.T. 14-15)

Approximately ten minutes later, Richard Ramos

and Luis Lajara arrived in the 900 block of Auburn

Street in a blue Toyota. Santiago then gave Defendant

Labron a key which Defendant used to open the trunk of

the blue Lincoln. (N.T. 16) Lajara removed a plastic

bag from the Toyota and walked over to Labron who

was waiting near the open trunk of the Lincoln. Labron

received the bag, placed it in the right rear of the trunk

of the Lincoln, closed the trunk, and gave the key back

to Santiago. (N.T. 18) Ramos and Lajara then got back

into the Toyota and drove away. Officer Nimmo

radiced his backup officers, including Officer Kenneth

Adams, who arrested Ramos and Lajara in the Toyota

several blocks away from the 900 block of Auburn

Street. (N.T. 11/21/91, 21)

At Officer Nimmo’s direction, several other offi-

cers proceeded to the 900 block of Auburn Street and

arrested Defendant and Santiago. (N.T. 19) Also at

Officer Nimmo’s direction, police officer Salvatore

Scarpato forced open the trunk of the blue Lincoln.

(N.T. 11/21/91, 6-7) From the right rear quarter panel

of the trunk of the Lincoln the officer recovered two

plastic bags containing alleged cocaine and a plastic

sandwich baggie containing five clear packets containing

alleged cocaine. (N.T. 11/21/91 at 7)

Discussion

There can be no dispute that Officer Nimmo had

probable cause to belicve that illegal drugs were within

the trunk of the blue Lincoln parked in the 900 block of

Auburn Street. Accordingly, the only issue in this case

App. 48

is whether under the particular facts and circumstances

of this case the police were required to obtain a search

warrant before searching the trunk of the blue Lincoln.

It is well-established that automobiles are

not per se unprotected by the warrant

requirements of the Fourth Amendment.

and of Article I, §8 of the Pennsylvania

Constitution. >

480 Pa. 93, 389 A.2d 101 (1978). Never-

theless, certain exigencies may render the

obtaining of a warrant not reasonably

practicable under the circumstances of a

given case, and, when that occurs, vehicle

searches conducted without warrants have

been deemed proper where probable cause

was present.”

, 518 Pa 145, $41 A?

1381, 1383 (1988), ig’ :

_ Further, it should be noted that it is also well-

established that the Commonwealth has the burden of

proving by a preponderance of the evidence that any

physical evidence which they desire to introduce was

obtained without violation of the defendant's constitu-

tional rights. Pa. R. Crim. P. 323(h).

vy. Weik, 360 Pa. Super. 560, ___» 521 A.2d 44, 45

(1987); Commonwealth v. Rispo, 338 Pa. Super. 225,

___» 487 A.2d 937, 938 (1985);

300 Pa. Super. 423, 446 A.2d 927. 929 (1982);

App. 49

Commonwealth y. Davis, 270 Pa. Super. 202, 411 A.2d

250 (1979).

In the case at bar, this Court believes that the

Commonwealth failed to meet their burden of establish-

ing by a preponderance of the evidence that any exi-

gencies existed which would justify the warrantless

search of the trunk of the blue Lincoln.

Two recent decisions of the Pennsylvania

Supreme Court have considered in some detail what

exigent circumstances justify warrantless automobile

searches - Commonwealth v. Rodriguez, 526 Pa. 268,

585 A.2d 988 (1991), and Commonwealth v. Baker.

supra. This Court believes that a close analysis of

Rodriguez and Baker reveals that none of the factors

pointed to by the Supreme Court in those cases to estab-

lish exigent circumstances were present in the case at

bar.

In Commonwealth v. Rodriguez, supra, our

Supreme Court specifically found that "exigent circum-

stances existed to justify the warrantless search of

appellant's automobile." 526 Pa. at ___, 585 A.2d at

991. In Rodriguez, the police stopped a car which was

being driven on a highway and conducted a search of

the vehicle. In finding that exigent circumstances

existed, the Supreme Court pointed to three particular

factors which excused the police from obtaining a search

warrant, none of which were present in the case at bar.

First, the Court in Rodriguez noted that prior to the car

stop, the police did not have sufficient information to

identify the particular vehicle in which contraband

would be located. 526 Pa. at, 585 A.2d at 990-91.

In the case at bar, the police knew before they set up

their surveillance that the blue Lincoln was being used

by Melendez in the distribution of illegal drugs.

App. 50

Second, in Rodriguez, the Supreme Court pointed out

that the police did not know precisely where the vehicle

containing the drugs would be located on the day that

the stop and search were conducted. 526 Pa. at

585 A.2d at 991. In the case at bar, the police had

advance information prior to establishing their surveil-

lance as to precisely where the blue Lincoln would be

located. Finaliy, in Rodriguez, the Court pointed out

that the police stopped a moving vehicle, and then con-

ducted their search. 526 Pa. at, S85 A.2d at 99].

In the case at bar, the blue Lincoln vehicle was sta-

tionary, and the Commonwealth did not attempt to

Present any evidence to establish whether the vehicle

even appeared to be mobile.

This is not a case where police knew

hours in advance that a particular vehicle

carrying evidence of crime would be

Although the police apparently could not start the

blue Lincoln, this Court established by its own questions

that the vehicle appeared to be mobile. (N.T. 137-38)

App. 51

parked in a particular locale, such that it

would have been reasonably practical to

obtain a search warrant before encounter-

ing the vehicle to be searched.

518 Pa. at _. S41 A.2d at 1383. In the case at bar,

the police appear to have known well in advance of their

search that a particular vehicle, the blue Lincoln, carry-

ing evidence of a crime would be parked in a particular

location, the 900 block of Auburn Street.

In summary, unlike Baker and Rodriguez, the

police in the case at bar did not search a vehicle that

they had stopped while it was moving. Moreover,

unlike Baker and Rodriguez, the case at bar was not an —

instance where the police searched a vehicle that was

suddenly or unexpectedly encountered. Instead, in the

case at bar, Officer Nimmo knew well before he set up

his surveillance on August 24, 1990, that the blue

Lincoln was being in connection with the sale and

distribution of cocaine.” The Commonwealth offered

absolutely no testimony to attempt to establish that the

information the police had about the Lincoln prior to

setting up the surveillance on August 24, 1990, was

insufficient to obtain a search warrant for the blue

Lincoln. Since it is the Commonwealth’s burden to

establish by a preponderance of the evidence that any

physical evidence to be introduced was recovered with-

out violation of the defendant’s constitutional rights, this

3 accordingly, the case at bar is distinguishable from

Commonwealth v. Jenkins, 401 Pa. Super. 580, 585

A.2d 1078 (1991), where there was apparently no evi-

vehicle they searched prior to setting up their surveil-

lance.

App. 52

Court believes that it would be highly improper to -

sume, without any evidentiary basis for such a presump-

tion, that there was any impediment to the police in

obtaining a search warrant for the blue Lincoln prior to

setting up their surveillance on August 24, 1990.

For the reasons set forth above, this Court found

that the Commonwealth did not meet its burden of

establishing exigent circumstances to justify the

warrantless search, and this Court believes that it

properly granted Defendant's motion to suppress the

evidence recovered from the trunk of the blue Lincoln.

BY THE COURT:

Is/

G. CRAIG LORD, J.

Dated: July 31, 1992

App. 53

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