Reply Brief — Pennsylvania v. Labron

x Supreme Coast, y 5 |

MAY 20 (996

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

PENNSYLVANIA - PETITIONER

VS.

EDWIN LABRON - RESPONDENT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached Brief In Opposition to the Commonwealth

of Pennsylvania’s Petition for a writ of certiorari without prepayment of costs and to proceed

in forma pauperis.

[4 Petitioner has previously been granted leave to proceed in forma pauperis in the

following court(s):

All Pennsylvania Courts.

[ ] Petitioner has not previously been granted leave to proceed in forma pauperis in any

other court.

Petitioner's affidavit or declaration in support of this motion is attached hereto.

Shui berber

(Signature)

| RECEIVED

way 2 2 1996

OFFICE OF THE CLERK

SUPREME COURT, U.S.

AFFIDAVIT OR DECLARATION IN SUPPORT OF

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

1, Edwin Labron, am the respondent in the above entitled-case. In support of my motion

to proceed without being required to prepay fees, costs or give security therefor, I state that

because of my poverty I am unable to pay the costs of this case or to give security therefor; and

I believe I am entitled to redress.

I further swear that the responses I have made to the questions and instructions below

relating to my ability to pay the cost of proceeding in this court are true.

1. Are you presently employed? Yes___ NoX __

a. If the answer is yes, state the amount of your salary or wages per month and give the

name and address of your employer.

b. If the answer is no, state the date of your last employment and the amount of salary

or wages per month which you received. I worked about 9 months during

1994. I received about $650 a month.

2. Have you received within the past twelve months any income from a business, profession

or other form of self-employment, or in the form of rent payments, interest, dividends, or other

sources? Yes_y No

a. If the answer is yes, describe each source of income and state the amount received

from each during the past twelve months. S.S.I. - $85/month

Social Security - $435/month

3. Do you own any cash or have a checking or savings account? Yes X__ No

a. If the answer is yes, state the total value of the items owned. 2@bout $200

4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property

(excluding ordinary household furnishings and clothing)? Yes No_X

a. If the answer is yes, describe the property and state its approximate value.

5. List the persons who are dependent upon you for support and state your relationship to those

persons.

I declare under penalty of perjury that the foregoing is true and correct. Executed on:

May 17 , 1996.

(Signature)

NO. 95-1691

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

COMMONWEALTH OF PENNSYLVANIA

EDWIN LABRON,

Respondent

BRIEF IN OPPOSITION TO THE COMMONWEALTH OF

PENNSYLVANIA’S PETITION FOR A WRIT OF CERTIORARI

JOHN W. PACKEL, Assistant Defender

Chief, Appeals Division

Identification No. 13255

HELEN A. MARINO, Assistant Defender

ELLEN T. GREENLEE, Defender

Defender Association of Philadelphia

121 North Broad Street

Philadelphia, Pennsylvania 19107-1913

Identification No. 00001

(215) 568-3190

May, 1996

QUESTIONS PRESENTED

1. Should the Petition for Writ of Certiorari be denied because

Petitioner has inaccurately stated the facts necessary to this

Court’s consideration of the merits of the case, and has thereby

framed for review an issue different from that decided by the

Pennsylvania courts?

2. Should the Petition for Writ of Certiorari be denied because

the state court’s judgment rests on adequate and independent state

grounds, namely Article I, Section 8 of the Pennsylvania

Constitution?

PAGE

Questions Presented i

Table Of Authorities iii

Statement Of Jurisdiction 1

Constitutional And Statutory Provisions Involved 1

Statement Of The Case 2-7

Argument 8-21

I. A WRIT OF CERTIORARI SHOULD BE DENIED

BECAUSE PETITIONER HAS INACCURATELY STATED THE

FACTS NECESSARY TO THIS COURT'S CONS IDERATION

OF THE MERITS OF THE CASE, AND HAS THEREBY

FRAMED FOR REVIEW AN ISSUE DIFFERENT FROM

THAT DECIDED BY THE PENNSYLVANIA COURTS. 8-12

II. THIS COURT LACKS JURISDICTION BECAUSE THE

STATE COURT’S DECISION RESTS UPON AN ADEQUATE

AND INDEPENDENT STATE GROUND. 13-21

Conclusion 22

ii

Carney v. California, 471 U.S. 386 (1985) eat eb a ee

Carrol] _v. United States, 267 U.S. 132 (1925)

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

Herb v. Pitcairn, 324 U.S. 117 (1945)

Michigan v. Long, 463 U.S. 104 (1983) , ° : ; 13,

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

United States v. Ross, 456 U.S. 798 (1982) , ; ; ; 10,

STATE CASES

Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988) . 11,

Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979)

Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) 16,

Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978) . 15,

Commonwealth v. Ionata, 518 Pa. 472, 544 A.2d 917 (1988)

Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556 (1993)

Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993) . 16,

Commonwealth v. Matos, 672 A.2d 769 (1996)

, 537 Pa. 417, 644 A.2d 721 & n.3

(1994), cert. denied, 115 S. Ct. 610 (1994)

Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991)

Commonwealth v. Rosario, 538 Pa. 400, 648 A.2d 1172 (1994)

Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987)

Commonwealth v. White, Pa. _, 669 A.2d 896 (1996) ‘ 16,

19,

iii

11

14

STATEMENT OF JURISDICTION

This Court is without jurisdiction to hear the case at bar

because the decision of the Pennsylvania Supreme Court rests upon

adequate and independent state grounds, namely, Article I, Section

8 of the Pennsylvania Constitution, as discussed more fully, infra.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In addition to the Fourth and Fourteenth Amendments of the

United States Constitution, set forth in the Commonwealth of

Pennsylvania’s Petition for Writ of Certiorari, this case involves

Article 1, Section 8 of the Pennsylvania Constitution, and Rule

323 (h) of the Pennsylvania Rules of Criminal Procedure, 18 Pa. C.S.

Article I, Section 8 of the Pennsylvania Constitution

provides:

Security from searches and seizures

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.

Rule 323 of the Pennsylvania Rules of Criminal Procedure,

which governs the procedure for motions to suppress evidence and

hearings on such motions, states in pertinent part:

(h) The Commonwealth shall have the burden of

going forward with the evidence and of

establishing that the challenged evidence was

not obtained in violation of the defendant’s

rights.

STATEMENT OF THE CASE

Respondent Edwin Labron and others were arrested on August 24,

1990, and charged with conspiracy and violations of Pennsylvania’s

Controlled Substance, Drug, Device and Cosmetic Act. After the

arrest, police conducted a warrantless search of a stationar) car

that respondent and others allegedly were using to store the drugs.

Respondent moved to suppress the physical evidence (alleged

cocaine) seized from the car, citing both state and federal

constitutional violations. App. 57-58. At the hearing on the

motion, police testified that on August 24, 1990, they conducted

surveillance of a drug dealing operation carried on at a certain

Philadelphia street. The police had been gathering information

about the operation for some six weeks, but acted on August 24

hoping to make a “bust" timed to allow police not only to arrest

the street dealers, but also to intercept and seize a new shipment

of drugs and the persons delivering it. One officer conducted

surveillance, watching what appeared to be the sale of drugs on the

street awaiting the delivery of more drugs, while ten others acted

as backup. App. 59-66, 132. After about two hours of watching,

the surveilling officer observed the delivery. App. 66-70. This

new shipment was placed in the trunk of the same car that the

street dealers had already been using to store the drugs they were

selling. App. 68-69. Backup officers were contacted and arrested

the parties involved, including respondent, who is alleged to have

been one of the persons selling the drugs to street customers.

Police then searched the car that had been used to store the drugs

2

for the street sales. They recovered alleged cocaine from the

truck and money from the interior. App. 70-73, 126-132, 194-96,

199-200.

On March 5S, 1992, Judge G. Craig Lord of the Philadelphia

Court of Common Pleas granted the motion and suppressed the

evidence seized from the car that was parked on the street and had

been used to store the drugs. The evidence that was critical to

the suppression court’s decision was testimony that, even before

going to the scene to make their bust, the police possessed

substantial information, from various sources including the

surveilling officer’s own prior observations, that targeted the

location as well _ as the particular car ultimately searched. That

information could have allowed the police to get a warrant before

they even went to the scene. App. 45-46, 52. The Pennsylvania

Supreme Court accepted the suppression judge’s findings, and agreed

with his reasoning. App. 21-25.

Throughout its Petition for a Writ ot Certiorari, petitioner

inaccurately and inadequately recounts those facts that were

essential to the state courts’ decisions. Petitioner instead

skirts the true facts of this case, repeatedly suggesting, in

contravention of the record and express findings of the state

courts, that the police were on the scene that day for the purpose

of gathering needed corroboration for otherwise uncorroborated

information. Petitioner thus inaccurately implies that police

could not have had probable cause, and thus could not have obtained

a warrant, until they made their observations on the scene that

day. Petition, pp. 3, 7, 8, 11. The record belies this view.

More specifically, the evidence that the Commonwealth seeks to

avoid is as follows. As the suppression judge noted in his

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," Police Officer Gerald Nimmo "received

information that led him to believe that Raphael Melendez, acting

with others, was selling cocaine in the 900 block of Auburn Street

in Philadelphia (N.T. 85)." App. 45. Specifically, the hearing

judge relied upon the Officer’s testimony that:

A. (Officer Nimmo]: 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. 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?

MR. MECOLI [the prosecutor]: Objection.

THE COURT: Overruled.

THE WITNESS: 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.

. The Commonwealth did not dispute the suppression court’s

ae of fact in its appeal, as those facts are supported by the

record.

BY MR. GAY [counsel for co-defendant] :

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.

App. 132-33. The officer, however, had never seen a delivery made

to Raphael Melendez, but had information that he would see one that

day. App. 132-33.

Indeed, as Judge Lord specifically noted (see App. 46), the

officer had been investigating for six weeks: Nimmo testified that

he had had the block under investigation and had made no less than

five narcotics arrests on the block within the past six weeks (App.

60-61). The officer had also testified that, in addition to his

own arrests on the block, he had previously surveilled the block,

walked through the neighborhood, and observed other transactions in

the area. He had also been involved with other officers who had

made purchases in that block. App. 61-62, 72, 132-33.

The officer was also explicit in his testimony that his

advance information specifically included the car at issue here, a

blue Lincoln:

Q. {by the Court]: What information did you

have about Mr. Melendez before you went out

there that day?

A. I had information that Mr. Melendez lived

in 913 Auburn, that on the eastern half of

Auburn Street he was the one that was selling.

He had the people employed selling cocaine out

5

there. He had a heavy foot traffic and that

they were storing cocaine when it was brought

in. It was stored in either the abandoned

car. It was a dark color. I don’t recall.

Or the Lincoln that was parked on the curb.

App. 168. And again on the court’s questioning:

Q. Is it your testimony that before you went

out to Auburn Street you had specific informa-

tion about this Lincoln automobile before you

got there that day?

A. That and another car, yes, sir.

App. 181.

Armed with that information and with as many as ten other

officers acting as backup, App. vol.II, 142, the police went to the

scene and allegedly observed respondent and another engage in what

appeared to be drug transactions. As Petitioner relates, they were

resupplied from the trunk of the Lincoln automobile. App. 59-60.

Two hours later, when the anticipated delivery arrived and, like

the other drugs, were stored in the Lincoln automobile, police

moved in. They arrested respondent and others, searched the

Lincoln, and seized alleged narcotics stored in the trunk. App. 72,

130, 132, 194-96. When police attempted to start the car to

impound it, they found that it was inoperable. App. 180.

Based upon Pennsylvania decisional law, the suppression judge

found that the prosecution had not met its burden under Rule 323 (h)

of the Pennsylvania Rules of Criminal Procedure, 18 Pa. C.S., to

prove that respondent’s state and federal constitutional rights had

not been violated. On the facts found, the suppression court ruled

that Petitioner, the Commonwealth, had not proved that any exigency

justified applying an automobile exception to the warrant

requirement or excusing the police from obtaining a warrant under

either the Pennsylvania Constitution or the United States

Constitution. The evidence did not prove an unplanned stop by

police of a moving vehicle, or the fortuitous development of

probable cause to search during surveillance or investigation. App.

52-53. Rather, the evidence showed that well before the day of the

search, the police officer knew that the car in question was

routinely used to store drugs on that block, and the Commonwealth

had not established that this information was inadequate to support

a warrant. App. 53.

The Commonwealth appealed the suppression order, and the

Superior Court reversed. See generally App. 36 et seq. The

Pennsylvania Supreme Court, however, agreed with the suppression

court. It accepted the suppression court’s findings and conclusion

that the automobile exception was not applicable because of the

extensive advance information possessed by the police. It thus

agreed that the evidence seized from the car pursuant to the

warrantless search should have been suppressed, not only under the

federal constitution, but under the state constitution as well.

App. 21-25.

ARGUMENT

I. A WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE PETITIONER HAS

INACCURATELY STATED THE FACTS NECESSARY TO THIS COURT’S

CONSIDERATION OF THE MERITS OF THE CASE, AND HAS THEREBY FRAMED FOR

REVIEW AN ISSUE DIFFERENT FROM THAT DECIDED BY THE PENNSYLVANIA

COURTS.

Rule 14.4 of this Court’s Rules of Procedure states that

sufficient reason exists to deny a petition for certiorari where

the petitioner has not presented with accuracy “whatever is

essential to ready and adequate understanding of the points

requiring consideration." Petitioner here has inaccurately stated

the critical facts and conclusions which form the basis of both the

suppression court’s ruling and the Pennsylvania Supreme Court’s

holding. Accordingly, the petition should be denied.

Specifically, in its Statement of the Case and through its

argument, the Commonwealth repeatedly states the case so as to lead

the Court to believe that, before the police began surveillance on

the day in question, the police had only an uncorroborated tip of

drug activity at that location. Petitioner states to the Court

that 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," and that police went

to the scene on August 24, 1990 to corroborate that "tip."

Petition, p.3. Petitioner represents that, "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." Petition, p. 7. Petitioner writes that

"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."

Petition, p. 7. Petitioner asks this Court to believe that the

Pennsylvania Supreme Court’s holding in this case requires the

police on the scene to “immobilize the suspect vehicle for several

hours" in order to obtain the warrant." Petition, p. 11.

These assertions about the facts of this case and the

Pennsylvania Supreme Court’s decision are inaccurate and warrant

this Court’s denial of the requested writ. The facts, as found by

the suppression court and accepted by the Pennsylvania Supreme

Court, show that during a six week investigation of the

Philadelphia street in question, police had learned the details of

a drug dealing business operating at a specific end of a certain

city block. Police knew that the dealers routinely stored drugs

in one of two cars parked on that block. The record also

establishes that the sources for this information were far more

significant and varied than an "“uncorroborated tip" from a single

source. Quite the contrary, the officer’s testimony was that the

information came from numerous sources: from others arrested on

the block, from neighbors, even from the surveilling officer

himself. Moreover, police did not claim to need on-scene

corroboration of their information about drug dealing or about the

car. Rather, as the officer testified, police were expecting to

see a delivery of more drugs and were waiting until that shipment

arrived before making their move. From the evidence, the lower

court reasonably concluded that the information, corroborated

through so many different sources over such an extensive period of

time and targeting the automobile in question, could well have

furnished probable cause well before the events of August 24

unfolded.

It therefore is a mischaracterization of this case for

Petitioner to represent that the police approached the street on

August 24 looking for corroboration because they had only

unverified information in hand. From this mischaracterization of

the facts of the case, however, petitioner builds its argument.

Based on inaccurate facts, petitioner inaccurately represents the

holding and necessary import of the Pennsylvania Supreme Court’s

decision and urges that the holding is in direct conflict with the

precedents of this Court such as Carney v. California, 471 U.S. 386

(1985), and United States v. Ross, 456 U.S. 798 (1982).

First, nothing in the Pennsylvania Supreme Court’s decision in

this case would require police to impound or hold a vehicle "for

several hours" so that police can obtain a warrant, as the

Commonwealth claims. Nor would it require police to “wait further"

to get a warrant and thereby risk the loss of evidence, as

Petitioner claims. Petition, p. 11. Such a holding would be

premised on a determination that police did not acquire probable

cause until they were on the scene and actually encountered the

vehicle, and thus could not have previously obtained a warrant.

Those facts simply were not presented by this case. Indeed, when

10

presented with facts like that, the Pennsylvania Supreme Court,

like this Court, has held that no warrant is necessary under the

Fourth Amendment. E.g., Commonwealth v. Rodriguez, 526 Pa. 268,

585 A.2d 988 (1991); Commonwealth v. Baker, 518 Pa. 145, 541 A.2d

1381 (1988).

Second, although the inaccurate facts related by petitioner

allow it to posit a direct conflict with precedents of this Court

such as California v. Carney, 471 U.S. 386 (1985), or United States

v. Ross, 456 U.S. 798 (1982), there is no such conflict based upon

the actual facts, as found by the state courts. Unlike the case at

bar, in Carney and in Ross, police had uncorroborated information

about a vehicle and illegal activity involving that vehicle. In

each case, they went to the scene, obtained necessary

corroboration, and promptly acted upon that corroboration by

searching without a warrant. In each of those cases, this Court

determined that the police were justified, under the automobile

exception to the warrant requirement, to search the vehicle at the

scene without a warrant. These cases, however, did not present the

factual scenario that is present in respondent’s case. Indeed, nor

does any of this Court’s precedents cited by Petitioner.

The Pennsylvania Supreme Court decision in this case thus does

not conflict with this Court’s precedents and has not in the least

"abolished" the federal “automobile exception" to the warrant

requirement, as the Commonwealth hyperbolically asserts. It does

not "turn seventy years of constitutional automobile-search

jurisprudence on its head." Petition, p. 6. On the contrary, by

11

declining automatically to except all automobiles searches from the

warrant requirement, the Pennsylvania Supreme Court has done

nothing more in this case than require that the automobile

exception be considered and applied according to the facts of the

case. Where the facts of a given case demonstrate that the

"exigency" which has traditionally underpinned the automobile

exception and is still recognized as one of its justifications --

the threatened loss of evidence due to the general mobility of

vehicles -- is not implicated, the exception might not apply. And,

with the case at bar, it has specifically held nothing more than

that, in the distinct and limited situation where the evidence

demonstrates a clear advance knowledge and opportunity to obtain a

warrant to search a car before the police even come upon that car,

the police should obtain that warrant. That holding poses no

threat or impairment to law enforcement efforts, and no direct

conflict with this Court’s precedents.

In sum, the Commonwealth’s petition, based upon an inaccurate

statement of the case, and the consequentially inaccurate

interpretation of the Pennsylvania Supreme Court’s holding in this

case, should be denied. The Commonwealth has not presented an

argument to this Court to explain why this case, as limited by the

facts found by the state courts, warrants this Court’s attention.

12

Il. THIS COURT LACKS JURISDICTION BECAUSE THE STATE COURT’S

DECISION RESTS UPON AN ADEQUATE AND INDEPENDENT STATE GROUND.

This Court should deny the Petition for Writ of Certiorari

because the Pennsylvania Supreme Court’s judgment rests upon

adequate and independent state grounds which undermine the

jurisdiction of this Court. Michigan v. Long, 463 U.S. 104 (1983);

Herb v. Pitcairn, 324 U.S. 117, 126 (1945). In Michigan v. Long,

this Court held that it will not review a state court judgment when

it™is clear from the state court’s opinion that the judgment rests

upon adequate and independent state grounds. A clear, adequate and

independent state ground exists in this case in the form of Article

I, Section 8 of the Pennsylvania Constitution.

In Michigan v. Long, the state court had cited the Michigan

Constitution in the course of its opinion, but this Court held that

the passing references were not sufficient to establish an adequate

and independent state ground. This Court noted that the state

court had only twice cited its state constitution, but had cited no

state cases to support the conclusion that the search was

unconstitutional on the state ground. Moreover, the state court

had relied exclusively upon an interpretation of Supreme Court and

federal cases. Under these circumstances, it appeared to this

Court that the Michigan court felt compelled to reach the result it

did because of its interpretation of federal law.

That plainly is not the case here. Although reaching the same

result under the federal and state constitutions, the Pennsylvania

Supreme Court’s decision in this case does not suggest in any way

13

that its consideration of the state constitution was secondary to,

contingent upon, or compelled by its understanding of federal law.

First, besides citing to the Pennsylvania constitutional provision

at issue, the Pennsylvania Supreme Court sets forth that provision

in its entirety, App. 8 n.4, refers to it through the opinion, and

mentions both federal and state constitutional “standards.” App.

13.

Furthermore, after only a brief discussion of the origin of

the “automobile exception" in Carroll _v. United States, 267 U.S.

132 (1925), and an even briefer discussion of Chambers v. Maroney,

399 U.S. 42 (1970), the Pennsylvania Supreme Court in this case

proceeded to rely exclusively on state decisions. This is

distinctly different from the situation in Michigan v. Long, in

which, aside from two citations to the Michigan Constitution, the

state’s high court relied upon federal decisions. In sharp

contrast, the Pennsylvania state decisions cited by the

Pennsylvania Supreme Court in this case represent a body of law and

tradition in this Commonwealth of inquiring into the necessity for

a warrantless search of an automobile. Repeatedly, those cases

have taught that vehicles are not “per se" excepted from the

warrant requirement and will not be applied automatically without

an examination of the circumstances of the case. The decisions

cited in this case rested not only on the Fourth Amendment, but on

Article I, Section 8 as well. E.g. Commonwealth v. Baker, 518 pa.

145, 541 A.2d 1381 (1988); Commonwealth v. Jonata, 518 Pa. 472,

14

544 A.2d 917 (1988); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d

101 (1978).

In the end, the Pennsylvania Supreme Court’s decision below

recognizes that what has emerged through the years of the

Pennsylvania Supreme Court’s consistent approach toward the search

of vehicles is a jurisprudence of Pennsylvania:

we ___ conclude __that _._ this

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 sufficient 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.

Therefore,

App. 20 (emphasis added).

Moreover, even in dissent, Justice Castille notes that "the

majority correctly characterizes Pennsylvania law requiring the

‘automobile exception.’” App. 26 (Castille, J., dissenting).

Additionally, any suggestion that the Pennsylvania Supreme

Court felt bound by federal constitutional law to render a decision

it would not otherwise have rendered is belied by a host of recent

Pennsylvania decisional _— explicating Article I, Section 8: its

distinct analytical differences from the Fourth Amendment, and the

broader protections provided to citizens by it. Demonstrating its

commitment to independent examination of Article I, Section 8, the

Pennsylvania Supreme Court has asked and encouraged litigants

raising state constitutional claims on appeal to provide a

15

separate, four-pronged and detailed state constitutional argument.

Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991);

Commonwealth v. White, Pa. __, 669 A.2d 896 (1996). Indeed, in

Edmunds, the Pennsylvania high court wrote:

Here in Pennsylvania, we have stated with

increasing frequency that it is both important

and necessary that we undertake an independent

analysis of the Pennsylvania Constitution,

each time a provision of that fundamental

document is implicated. Although we may

accord weight to federal decisions where they

“are found to be logically persuasive and well

reasoned, paying due regard to precedent and

the policies underlying specific

constitutional guarantees,”

Tarbert, 517 Pa. 277, 283, 535 A.2d 1035, 1038

(1987), quoting Brennan, State Constitutions

and the Protection of Individual Rights, 90

Harv. L. Rev. 489, 502 (1977), we are free to

reject the conclusions of the United States

Supreme Court so long as we remain faithful to

the minimum guarantees established by the

United States Constitution.

526 Pa. at 389-90, 586 A.2d at 894-95.

More importantly, numerous Pennsylvania Supreme Court

decisions of recent years have recognized that Article I, Section

8 provides greater protection against searches and seizures than

does the Fourth Amendment, including Commonwealth v. White, Pa.

__, 669 A.2d 896 (1996), a car search case decided the same day as

the case at bar, which rejected New York v. Belton, 453 U.S. 454

(1981), under Article I, Section 8. See also Commonwealth v.

Matos, 672 A.2d 769 (1996) (rejecting California v. Hodari. D., 499

U.S. 621 (1991), under Article I, Section 8); Commonwealth v.

Mason, 535 Pa. 560, 637 A.2d 251 (1993) (refusing to apply under

Article I, Section 8, the “inevitable discovery doctrine" as

16

applied in Segura _v. United States, 468 U.S. 796 (1984);

Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556 (1993) (dog

sniff, deemed not to be a search under federal law, held to be a

search requiring probable cause under Article I, Section 8);

Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991)

(rejecting United States v. Leon, 468 U.S. 897 (1984), refusing to

find a “good faith exception" to the exclusionary rule in

Pennsylvania, and determining that Pennsylvania’s exclusionary rule

ie constitutionally mandated, not supervisory); Commonwealth v.

DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) (declining to follow

United States v. Miller, 425 U.S. 435 (1976), under Article I,

Section 8).

As described and interpreted by the Pennsylvania Supreme

Court, Article I, Section 8 gives stronger recognition to the

privacy interests of Pennsylvania’s citizens; those privacy

interests weigh more heavily in the balance against the needs of

law enforcement than is the case under the Fourth Amendment. In

Commonwealth v. Mason, 435 Pa. at 571 n.3, 637 A.2d at 251 n.3,

Justice Flaherty wrote for the Pennsylvania Supreme Court:

Upon reflection, it is apparent that in the

context of the Fourth Amendment, when a court

deters police misconduct, it necessarily also

safeguards privacy and the probable cause

requirement. Why would a court deter police

misconduct at all if not to deter police from

improperly invading the right of persons to be

secure, i.e., private, in their persons,

houses, papers, and effects? Deterring police

misconduct is not an end in itself. The

ultimate distinction, then, between __the

that the federal courts seek only to deter

] . » | t j t ] P ] . t

17

different conclusion as to the relative

criminal convictions. (emphasis added.)

in Commonwealth v. White, Pa. _, 669 A.2d 896, 902, a car

search case decided the same day as the case at bar, and relied

upon in the case at bar, Justice Flaherty again wrote for the

Pennsylvania Supreme Court majority:

As we stated in Commonwealth v. Mason, 535 Pa.

560, n.3., 637 A.2d 251 n.3 (1993), this

Court, when considering the relative

importance of privacy as against securing

criminal convictions, has struck a different

balance than has the United States Supreme

Court, and under the Pennsylvania balance, an

individual’s privacy interests are given

greater deference than under federal law.

In his concurring opinion in White, Justice Montemuro, who

authored the opinion in the case at bar, believed that the majority

should Have done a more exhaustive state analysis than it had

before departing from federal precedent. Still, Justice Montemuro

agreed with the result. He provided a telling state constitutional

analysis of car searches and privacy interests that demonstrates

the adequacy and independence of the state constitutional ground in

the case at bar as well as in White. Justice Montemuro wrote:

In the instant case, Appellant is asserting a

privacy interest in his automobile. of

course, our cases have long recognized a

diminished privacy interest in an automobile

based on federal case _ law. {Citations

omitted. ] However, that federal privacy

interest was substantially curtailed by the

United States Supreme Court in Belton.

research indicates that we have _ also

recognized a constitutionally protected

18

reasonable expectation of privacy in an

automobile under Article I, Section 8 of the

Pennsylvania Constitution. See Commonwealth

, 480 Pa. 93, 101 & n.4, 389 A.2d

101, 105-06 & n.4 (1978); Commonwealth v.

Baker, 518 Pa. 145, 148, 541 A.2d 1381, 1383

(1988), overruled on other grounds by

Commonwealth v. Rosario, 538 Pa. 400, 648 A.2d

1172 (1994); Commonwealth v. Morris, 537 Pa.

417, 422 & n.3, 644 A.2d 721, 724 & n.3

(1994), cert. denied, 115 S. Ct. 610 (1994).

In Holzer, we held that "constitutional

protections are applicable to a person’s car"

under Article I, Section 8 of the Pennsylvania

Constitution. Holzer, 480 Pa. at 103, 389

A.2d at 106. In Baker, we held that "[iJt is

well established that automobiles are not per

se unprotected by the warrant requirement of

ere Article I, Section 8 of the

Pennsylvania Constitution." Baker, 518 Pa. at

148, 541 A.2d at 1383.

Thus, the history of Article I, Section 8

and case-law interpreting it reveal a history

of according a limited expectation of privacy

in an automobile independently under the

Pennsylvania Constitution. Therefore, the

question before us today is not whether we

wish to extend additional privacy protections

to the appellant but whether we wish to follow

the United States Supreme Court and sharply

curtail a privacy interest long recognized by

this Court. In my opinion, this prong weighs

égainst automatically adopting Belton.

Instead, I believe we must carefully consider

the merits of severely diminishing a privacy

right independently recognized under our

constitution.

Commonwealth v. White, Pa. at __, 669 A.2d at 905.

Further, in finally concluding that Belton should be

Justice Montemuro wrote:

I agree that the Belton rule is seriously

flawed and has no place in Pennsylvania

jurisprudence. It has long been the rule in

this Commonwealth that the police may search

the passenger compartment of a car incident to

an arrest only to protect their safety or to

prevent occupants from destroying contraband.

19

rejected,

Timko, 491 Pa. at 37, 417 A.2d at 622. In

contrast, the Belton rule allows the police to

search the passenger compartment and any

containers contained therein even where no

such exigency exists. - In my opinion,

carves too wide an exception to the

warrant requirement where none is justified.

Id. at _, 669 A.2d at 908.

From all of the above, it is clear that Pennsylvania’s

references to the state constitution in the case at bar reflect an

adequate and independent state ground for the Pennsylvania Supreme

Court’s decision. As interpreted and applied by Pennsylvania’s

high court, Article I, Section 8 is both separate and independent

from federal law. In the context of search and seizure claims

generally, and in the context of automobile searches in particular,

the state’s reliance upon Article I, Section 8 reflects a distinct

basis for relief that is different from its federal counterpart.

It would thus be unfair and inaccurate to conclude that the

Pennsylvania Supreme Court “decided the case the way it did because

it believed that federal law required it do so." Michigan v. Long,

463 U.S. at 1041. Rather, Pennsylvania’s decisional law and

Article I, Section 8 were recognized to provide an independent

basis for concluding that Article I, Section 8 had been violated by

the search in this case.

This Court stated in Herb _v. Pitcairn, and reiterated in

Michigan v. Long, that

The jurisdictional concern is that we not

"render an advisory opinion, and if the same

judgment would be rendered by the state court

after we corrected our views of federal laws,

our review could amount to nothing more than

an advisory opinion."

20

Michigan v. Long, 463 U.S. at 1042 (quoting Herb v. Pitcairn, 324

U.S. at 126). That is precisely the situation here. An adequate

and independent state ground exists, and this Court should deny the

Petition for Writ of Certiorari.

21

IN_THE SUPREME COURT OF THE UNITED STATES

CONCLUSION

OCTOBER TERM, 1995 NO. 95-1691

For the foregoing reasons, petitioner’s request for a writ of

COMMONWEALTH OF PENNSYLVANIA

certiorari should be denied.

Res ully ate a

WU

J W. PACKEL, Assistant Defender CERTIFICATE OF SERVICE

Chief, Appeals Division

Identification No. 13255

HEL A. MARINO, Assistant Defender I, John W. Packel, a member of the Bar of this Court, hereby

ELLEN T. GREENLEE, Defender

Vv.

EDWIN LABRON,

Respondent

certify that on this 20th day of May, 1996, copies of the Brief In

Opposition To The Commonwealth of Pennsylvania’s Petition For A

Writ Of Certiorari and the Motion For Leave To Proceed In Forma

Pauperis and Affidavit in Support Thereof in the above-entitled

case were personally served upon

Ronald Eisenberg, Esquire . (215) 686-5700

Deputy District Attorney of Philadelphia

1421 Arch Street

Philadelphia, Pennsylvania, 19102

counsel for the petitioner herein. I further certify that all

parties required to be served have,been served. | ‘

/

7

RECEIVED Lee

JOHN W. PACKEL, Assistant Defended

1996 Defender Association of Philadelphia

ww 22 1 North Broad Street

. Philadelphia, Pennsylvania 19107

oe 2 (215) 568-3190

Date: May 20, 1996

22

DEFENDER ASSOCIATION

OF PHILADELPHIA

121 North Broad Street

Philadelphia, PA 19107-1913 Ellen T. Greenlee

(215) 568-3190 Defender

May 20, 1996

William K. Suter, Clerk

United States Supreme Court

One First Street, N.E.

Room 30

Washington, DC 20543

Re: Pennsylvania v. Edwin Labron

U.S. Supreme Court No. 95-1691

Dear Mr. Suter:

Enclosed for filing please find an original and ten copies of Respondent Edwin

Labron’s Motion to Proceed in Forma Pauperis and Brief in Opposition to the Petition

for Writ of Certiorari in the above-captioned matter.

| would appreciate your acknowledging receipt of these documents by stamping

and returning to me the enclosed copy of this letter. | have enclosed for your

convenience a stamped, self-addressed envelope.

Thank you for your attention.

Very truly yours,

x) ‘ ff - "SA

f tthe tO : , ee ‘La’

HELEN A. MARINO

Assistant Defender

cc w/encl: Ronald Eisenberg, Esquire

Deputy District Attorney

RECEIVED

wav 2 2 1996

er CLERK

OF rue py US.

-