# Petition for Writ of Certiorari — Pennsylvania v. Labron > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0715%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 518 U.S. 938 ## Text a ~~. QB-15°) ~EILED NO. {a IN THE =e SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 COMMONWEALTH OF PENNSYLVANIA, Petitioner we 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 ii i 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) IV 14 9,12 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 10 10 9 10 10 8,12 10 4,12,13 11,12 11,12 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) vi 5.13.14 12 12 4,12,13 12 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. I 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. 2 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 3 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. 4 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). 5 3 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 7 “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. 9 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 5 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"). 10 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). 12 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 l 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). 14 ss 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 15 APPENDIX 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 In 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 VS 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 VS : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0715%3A2. Public record. Not legal advice.