*1 ORDER PER CURIAM. NOW, day
AND this 5th оf June the Petition Superior is Appeal granted, Allowance of the order reversed, is to the trial and the matter remanded Court grant appeal pro with direction to Petitioner an nunc court tunc. Pennsylvania, Appellee,
COMMONWEALTH Shawney PERRY, Appellant. Pennsylvania, Appellee,
Commonwealth of Stewart, Appellant. Brett Supreme Pennsylvania.
Argued Oet. 3, 2002. Decided June *2 Stein, Philadelphia, appellant. A. for Gerald Marshall, Lynn Philadelphia, appellee. Catherine ZAPPALA, CASTILLE, FLAHERTY, C.J., CAPPY, and SAYLOR, NIGRO, and NEWMAN JJ. THE ANNOUNCING JUDGMENT
OPINION OF THE COURT CAPPY. Justice court
The issue before the is whether circumstances vehicle, of a excused the Commonwealth’s warrantless search occupants after the had been from vehicle and removed custody. I unique taken into conclude under the case, a potential deadly facts of this there existed threat thus, exigent harm to police, circumstances justified the Commonwealth’s failure to obtain a search war- rant. fact-driven,
As resolution of this case is a detailed' recitation 8, 1996, at necessary. Saturday of the facts is On June a.m., Bobby approximately 3:00 Javon Jones and Mahalati Illusions, a an club. driving were GEO Tracker after-hours time, Appellant Perry driving At was the same white Lexus Perry passenger in the vehicle. was Appellant Stewart green light on 7th Street which stopped Lexus at had Perry club. and Stewart around the corner from the traffic while men conversed with blocking a lane of were Jones, driving car who in the behind them. some women down, pulled along and windows side top Tracker with the light Lexus as the turned red. Stewart turned Jones remarked, at?” you looking Jones “What f— ignored light green, When turned Mahalati Stewart. in front of the stopped drove around the Lexus and Jones Perry pulled along the Lexus to Illusions. entrance of, Mahalati, Perry side the Tracker. asked “What passenger times, you looking Perry repeated at?” then several the f— f—us?” you you do want to do? Do want to Mahalati “What or both of responded, right, p “All What ever One — .” shouted, you Do want to take care of this” Appellants “What? *3 Perry of this around the corner.” and and “We can take care to the end of the block and turned left Stewart then drove onto 8th Street. only
Perry positioned the Lexus on 8th Street so to leave to and enough single pass. room for a vehicle Jones Mahalati Lexus, passing right. it on the Jones and past drove Perry holding both and Mahalati observed that Stewart were attempt protect his back in an guns. Mahalati threw seat attempted away. rang Shots out speed himself while Jones legs. in his feeling and Mahalati lost help. the block in an effort to Jones drove around seek Philadelphia Tyrone For- flagged down Police Officer Jones rest, duty who was on outside Illusions. Officer Forrest the bullet hole the side the Tracker and noted observed ambulance, summoning on After an Officer blood the seat. a.m., police an radio at 2:59 Forrest broadcasted alert over stating that a had shot and that his assailants man been 8th in a two black males who had driven southbound on Street two-door white Lexus. police Approx- John Barker received the broadcast.
Officer later, Perry and imately one minute he observed Stewart on 8th proceeding white Lexus which was south Street. up back and followed. Officer Barker requested Barker Katz, joined pursuit, ultimately who had in the Sergeant Glenn of 11th and stopped men near the intersection Federal blocking was one of two southbound lanes Streets. The Lexus 11th Street. Perry and out of the car. The The officers directed Stewart Perry engine, turn off the request officers did not thus, running. police frisked the the motor remained The safety weapons but no were found on precaution men as a police stopped took Jones to the vehicle persons. their identify arrived within attempt an the assailants. Jones the shoot- reported fifteen minutes after Officer Forrest had radio. ing over the
n Stewart, immediately Upon seeing Perry and Jones ex- claimed, At that they guns.” pоint, “that’s them and have two Perry placed and Stewart were handcuffed guns informed that at least one of the vehicles. Jones This information was appeared weapon. to be an “automatic” Thomas who had on relayed to Lieutenant McDevitt arrived safety Determining public that as matter of the scene. recovered, guns for the be Lieutenant imperative to. requested that Barker search the Lexus for McDevitt Officer weapons. Officer Barker returned to the vehicle shined flash- light passenger compartment. into the He noticed that the floor mat on the driver’s side was askew. Concerned one mat, lying Barker guns beneath the Officer Helwan, mat a 9mm with six lifted the and uncovered loaded *4 passenger Barker then searched under the bullets. Officer weap- a .22 the side floor mat and uncovered Beretta. Once removed, to police headquar- ons the Lexus was driven were vehicle, of the and the ters. No other search was made immediately an impoundment vehicle was driven to area. Perry attempted and were held for trial for mur- Stewart der, assault, conspiracy, criminal and related aggravated 9, 1998, charges. joint suppression March motion was On that had Perry in which and Stewart claimed the filed conducting a warrantless search of the Lexus illegally acted seizing guns. suppressed weapons The court the the permit- finding from the Lexus that the seized to vehicle without a search warrant. More ted search the at suppression judge noted that the time the specifically, the Lexus, been Perry both and Stewart had police entered the Thus, exigent police custody. into no handcuffed and taken present justify which would the warrant- circumstances were less search. Court, certify- appealed Superior
The Commonwealth substantially weapons had ing suppression Perry and The handicapped prosecution its Stewart.1 suppression court. Superior Court reversed thе order Superior found that circumstances existed exigent The safety respect police safety respect public with with Supe- the warrantless search of the Lexus. The excused proceedings. rior Court remanded the matter for further court allocatur consolidated granted This and the cases were for review.
The issue before the court is whether circumstances Lexus, rendering thus excused the warrantless search of the constitutionally the search reasonable.2 Perry As nor that the search was neither Stewart contends Fourth violative Amendment the United States may appeal suppression order as a final order good suppression “when the Commonwealth faith that certifies substantially prosecution.” handicaps order terminates or Com- (1985). Dugger, Pa. monwealth v. 486 A.2d court, rulings reviewing suppression 2. When of a this court must that, findings supports determine whether the record court’s of fact legal then determine whether the inferences and conclusions drawn Hall, from those facts are reasonable. Commonwealth v. 549 Pa. (1997). Where the defendant has been successful before court, suppression may only appellate court consider the evi- defendant, winner, by dence of the witnesses offered as the verdict only prosecution so much of the evidence for the as read in the context of the record as a whole remains uncontradicted. Where fact, findings supports the record the court are bound those legal only reaching if facts and reverse the court erred its DM., upon conclusion based 556, the facts. In re (1999). *5 504 is the
Constitution, point resolving this issue starting I, 8 of the Penn- Article Section Pennsylvania Constitution. govermnental of parameters sets the sylvania Constitution Commonwealth, of citizens of our and seizures searches homes, possessions: and their their houses, papers persons, shall secure their people The be seizures, from unreasonable searches possеssions any person or any place or to seize and no warrant search nearly may as as describing without them things shall issue cause, affir- be, supported by oath or probable nor without by affiant. mation subscribed to Const., I, consistently § court has embraced Pa. art. 8. This Pennsylvania 8 of the principle that Article permitted by the state be requires searches Constitution warrant the neutral only upon obtaining a issued Thus, warrant- magistrate. general proposition, as a detached purposes. for constitutional less searches are unreasonable Petroll, 993, A.2d v. 558 Pa. (1999).
However,
exceptions
a
recognized
this court has
number
limit-
requirement.3 Under certain
general
from this
warrant
circumstances,
a
part
to obtain
ed
the failure on the
subsequent
and the
prior
warrant
to a search will be excused
privacy protections
will not be deemed violative
search
Pennsylva-
example,
For
under
granted by our Constitution.
valid,
law,
of a motor vehicle to be
nia
for a warrantless search
exigent
cause and
showing
must
of both
there
45, 669 A.2d
v.
543 Pa.
circumstances. Commonwealth
(1995).4
subject
where the
example, police
For
do not need a warrant
gives
her
to be searched. Commonwealth
his or
consent
Likewise,
Abdul-Salaam,
(1996).
if
544 Pa.
objects
consti-
property, retrieval of such
does not
defendant abandons
necessitating a warrant. Commonwealth v.
tute a search or a seizure
Furthermore,
Hawkins,
(1998).
may,
553 Pa.
On this court first reiterated the that a rule required warrant police may engage before the in the an proceeded search of automobile. The court then to discuss exceptions four requirement. the warrant Three of the exceptions exigent considered and the fourth circumstances exception inventory pur- addressed warrantless search for Maryland protection the same under United States Constitution.
Dyson, (1999)(pursuant 527 U.S. 119 S.Ct. L.Ed.2d 442 Amendment, exception” separate exigen- to Fourth "automobile no has thus, cy requirement; probable where there is cause to search an automobile, purposes a search is not unreasonable of the Fourth justify Amendment if based on faсts that would the issuance of a obtained). if warrant even a warrant is not n first court addressed discussing exception, poses. aspects of searches. timing vehicular (1) [Pjolice without a warrant where: may search a vehicle that an automobile con- there is cause believe ' (2) activity; of criminal unless the car is tains evidence impounded, occupants or the automobile are searched likely away to drive and contents of the ob- again by police; have never be located way they this information such a could tained search, i.e., exigent a warrant for the there are have secured circumstances. A.2d at
Thus,
type
circumstances
*7
requirement
potential
focuses on
for loss of
warrant
the
ability
on
of
contraband and concentrates
the Common-
to
a warrant
in advance of the search.
wealth
have obtained
White,
police
ample
In
the court determined that
had
in
information that
automobile would be involved
White’s
activity
criminal
and that there were no unforeseen circum-
justify
that would
of the vehicle.
stances
warrantless search
spoke
type
exception dealing
to a
of
The court also
second
of a
exigency
justifies
with an
search
the absence
court,
to an
warrant —a search incident
arrest. The White
Timko,
citing
(1980),
permissible
that a
explained
warrantless search
However,
to an
the court reaf-
as
search incident
arrest.
of such a
and limited the warrantless
firmed the extent
incident,
clothing
to
to
search of a vehicle
an arrest
areas
immediately
pur-
Id.
person
accessible to the
arrested.
The
type
prevent
of this
of
was to
pose
second
destroying
from
or
contraband.
securing weapons
arrestee
White,
Timko,
citing
A.2d at
We do not to invalidate warrantless searches of police vehicles where must search order to avoid danger others, to themselves or might occur the case police where explosives had reason to believe that present this, however, Emergencies the vehicle. such as part are not of this case. 669 A.2d at n. 5.5The court determined that there nothing support the record to an exigency such as
danger police justify the warrantless search.
Finally, the court addressed an exception to the warrant
requirement
for searches
for inventory purposes.
conducted
court, again citing
Timko,
inventory
found that an
permissible,
search is
only
but
when the
demonstrate
that the search was in fact conducted as a search
purposes
protection
property
the owner’s
which remained in
police custody,
protection
police against
claims of lost or
stolen property,
protection
against danger.
Timko,
citing
Id.
Although
parties
the
discuss each of
exceptions,
these
it is
that only
clear
the third exception,
dealing
that
with potential
danger
police
or public,
truly
is
implicated in this
appeal.
judice,
the matter sub
it is
that
uncontested
exception regarding
This warrant
police safety
support
finds further
suggested
in Timko in which this court
that a warrantless search would
justified
police
if
"explosives
were confronted with
or
other
some
might
item
way endanger
which
in
police
some
the
officers or oth-
Timko,
ers. ...”
although police the of Appellants, danger there was no prior to stopping warrant Further- leaving with the contents therein. the automobile police in a cruiser more, Perry were secured as Stewart conducted, a of was to time the search the vehicle prior the been to the arrest could have search of the vehicle incident Finally, plain it is that the search lawfully performed. part investigation criminal and not conducted part of a Thus, potential danger it is the inventorying property. the others, five of the White or as discussed footnote police to proper appeal. that the focus opinion, in this exception, Superior the Turning to this limited circumstances, public finding exigent for gave case two bases safety. public safety police As concern the Superior Court credited the Commonwealth’s general, the car, the guns that were located the explanation unless an immediate search of the police organize would have fleeing that defendants had traveled while entire route weapons. Lieutenant through city in order to recover the at that time that were low testified McDevitt resources a.m. on obtaining approximately a search warrant at 3:00 hours. Lieu- Saturday morning would have taken several time, there could be opined McDevitt tenant on streets. children Superior Court noted that Officer Barker
Alternatively, Lexus, even absent that he would have searched testified vehicle, out of McDevitt’s direction Lieutenant safety safety his and the of his fellow officers. concern for noted that the motоr of the Lexus Specifically, Officer Barker custody running when the men were was still of 11th This vehicle was in the middle one lane Street. Furthermore, in attempting constituted an unsafe situation. vehicle, injury or to an officer ran the risk park to drive weapon. believed from Jones’ from concealed in the allegedly that a 9mm “automatic” was used statement that such a Finally, Lieutenant McDevitt testified crime. officer, “easily bump off on if hit a or weapon go could he *9 N.T. with his foot.” accident on it or kicked stepped at 261. 3/10/98 had met that the Commonwealth found Superior Court exigent cause6 demonstrating probable
its burden war- requirement of search that excused the circumstances that the officers were faced Superior opined rant. The situations, thus, the dangerous difficult and equally two with upon Based the for action. court found a need immediate danger as well as the of the offense and the level gravity expectation privacy, the minimal intrusion into defendant’s was not unreason- concluded that the search Superior Court weapons. suppression of the able and reversed the case, I too find that unique facts of the upon Based obtaining a warrant to existed to excuse exigent circumstances teaches that an extreme danger police. avoid harm, great potential deadly is a for situation in which there justify a warrantless exigent circumstances exist this of a The contours of should vehicle. they a situation so when are faced with defined create, they an automo- which necessitates enter did bile, facts from which they specific and articulable possess great potential they reasonably believe that there exists harm, search of the deadly police may conduct limited safety. to ensure their vehicle import that judice, it is of critical
Turning to the case sub engine of a lane of traffic with its Lexus the middle the vehicle to running. required This enter way and to turn off vehicle’s right it from the remove Moreover, police possessed specific knowl- ignition. shooting had occurred minutes before which edge that a eyewitness An to the crime imme- injury. serious resulted custody shooters. Fur- diately the men identified thermore, weapons that there were two the witness stated guns and that one of the was an involved in the crime seriously parties do not contest that the officers had 6. The regarding contained evidence cause to believe that the Lexus Thus, shooting. appeal on the issue of whether turns present justified which warrantless search. circumstances *10 weapon. Appellants weap- automatic had frisked and no been person, on increasing ons were discovered their the likelihood guns that the were the Lexus. The uncontradicted testimo- ny by police type weapon alleged that to established the fragile easily go have used in the crime was and could off been bumped stepped upon, posing any if or an immediate threat to attempted officer who to move the vehicle.7 Thus, with police entering were faced necessity and with specific the vehicle were armed and articulable facts great potential deadly that a for harm to established if Finally, the search of the automobile was not conducted. only in a to police engaged establishing search limited integrity passenger compartment of the of the In- vehicle. deed, discovered, weapons after the no further search of unique the vehicle was conducted. Faced with all of these circumstances, toto, it extreme considered was not unrea- sonable for to have searched the without a vehicle warrant.8 by
The concurrence authored Justice Castille takes issue analytical approach with it taken above as relates to the requirement. by Erst to the warrant It does so attempting paint majority this court’s decision as White dictа, law, misapprehension application as erroneous by flawed incomplete quotation, mischaracterization incredibly, actually being with “coterminous” federal law. However, argument by the reticular offered the concurrence is daring convincing. more than The court’s decision White by stands as a our court our affording declaration citizens I, protections Pennsyl- broader under Article Section 8 of the vania Constitution than under the Fourth Amendment of the accept 7. I note that this court should not or assume that all 9mm However, weapons purposes automatic are sensitive. of review in appeal accept testimony the court must uncontradicted . DM., (1999). Commonwealth. In re A.2d 556 IAs would find that the warrantless search was excused due to the exigency police safety, necessary of consideration of it is not address Superior holding safety public Court’s alternative that created a separate exigency justified express the warrantless search. I no n theory. as to the merits of this alternative court in created White United States Constitution. it Constitution and interpret construct to this Commonwealth’s binding precedent.9 is majority opinion is a by Castille maintains there The concurrence Justice Arti- approach was different under no indication that White’s This is than under the Fourth Amendment. cle Section 8 not as as desired perhaps precise not so. While concurrence, approach. significantly reveals a different necessary to engage gymnastics than in the mental Rather natural and comforta- position, the concurrence’s more reach merely attempt is that an reading ble of White law, aspects, law with certain federal reconcile *11 regarding state law independent but to nevertheless establish automobile searches. emphasizing importance the of the defendant’s state
After
claims,
exigent
majority
the White
discussed the
constitutional
claims thаt the court's discussion in White
9. The concurrence first
exigent
regarding
type
is dicta and is not
the first
of
circumstances
I,
proposition
Article
precedent
for the
this court follows an
approach
is distinct and different
Section 8
to automobile searches that
approach
In the
from the
under the Fourth Amendment.
concurrence's
White,
logical
applied
expansive view of dicta as
and carried to its
conclusion,
opinion strictly necessary
only
appellate
in an
the
statement
course,
case is the order of the court. Of
such
to the decision of the
parsimonious interpretation
“necessary”
of
to a decision is
what is
Yet,
suggests in
jurisprudentially
it is what the concurrence
unsound.
interpretation is inconsistent
its ultra-broad view of dicta. Such an
supreme
frequently
of
Courts
con-
with the established role
courts.
interpretation
tests that act as an
of the law.
struct
I,
in
arose under Article Section 8. The “automobile
The case White
disposition
exception”
certainly necessary
issue was
Moreover,
appeal.
a manner inconsistent
as
issue
resolved in
law,
Finally,
necessarily
law.
it is
with federal
it was
distinct from such
suddenly
anomalous for the concurrence to
assert that the court's
dicta,
exception in White is
when in his
discussion of the automobile
White,
concern,
in
but main-
dissent
Justice Castille voiced no such
regarding
that the discussion
a search incident to an
tained instead
909;
Pennsylvania v
arrest was dicta.
669 A.2d at
see also
Labran,
2485,
946 n.
116 S.Ct.
513 Glass, 187, 754 A.2d ing). Accord Commonwealth v. 562 Pa. 655, (2000)(Castille, 659 n. 6 Labron and J.)(recognizing that from Fourth departure White were Amendment “automobile exception” requirement). as a warrant White stands state- by requirement mеnt this court as the warrant for automo- I, 8 independent bile searches under Article Section that is federal law.
Any doubt about
fact
subsequent
vanishes when
case
consistently
law is
considered. These cases
confirm
8,
for analysis
White sets the standard
under Article Section
See,
paradigm
and this
is not coterminous with
law.
federal
Luv,
570,
(1999);
v.
e.g., Commonwealth
557 Pa.
Luv,
(Pa.1999),
sharpens
point.
First,
absolutely
Luv,
necessary
understanding
to an
decided,
the time Luv was
Supreme
the United States
eminently
Court had
made
clear that the automobile
under
separate exigency require
federal law does not have a
465, 466-67,
ment.
Maryland
Dyson, 527 U.S.
119 S.Ct.
(1999)(the
L.Ed.2d
exception”
“automobile
has
separate
Labron,
no
exigency requirement); Pennsylvania v.
938, 940,
(1996)(if
518 U.S.
116 S.Ct.
law, straightforward approach forth a integrity requirement privacy warrant and the tains the citizens, bowing only exigencies, example, to limited of our officers’ lives are at risk. when Superior is affirmed and the matter
The order proceedings. for further remanded participate Former Justice FLAHERTY did Chief decision of this case. concurring opinion joined by Justice CASTILLE files Justice Newman. distinguishes aspect Luv from the case sub
10. This is a critical judice police custody prior where the defendants were arrested and possibility that the evidence would be to the search and there was no obtaining prior to a warrant. lost *14 concurring opinion. files a Justice SAYLOR dissenting opinion joined by Justice NIGRO files Chief ZAPPALA. Justice CASTILLE, concurring.
Justice opinion. I concur in the result If an reached the lead exigency required to search an automobile where there (1) probable beyond exigency pre- exists cause the inherent (the mobility exigency sented the vehicle traditional permits a warrantless under Fourth vehicle search (2) Amendment), opportunity the lack of an warrant probable secure before cause to search the (an unexpectedly vehicle arose additional exigency uniquely required by caselaw), Pennsylvania I certainly then would agree Cappy’s with Mr. danger Justice lead that the justified However, pаrticular here this I search. write separately I do not because believe that this existing Court’s jurisprudence requires, nor do I think that jurisprudence our require, should any exigency beyond mobility of a vehicle unexpected development Accord- cause. ingly, I respectfully disagree analytical with the approach employed by I opinion. the lead also separately write because I believe our jurisprudence in this important area has lacked precision and I hope exploration that an jurisprudence of that might provide guidance some involving future cases automo- bile searches.
I am on record indicating my elsewhere as belief that the parameters of exception the automobile should be the same I, under Article 8 of Pennsylvania Section Constitution as Luv, under the Fourth Amendment. See Commonwealth v. (Castille, J., 557 Pa. 735 A.2d concurring); Commonwealth v. 909-10 (1995) (Castille, J., dissenting). Although my that remains belief, I considered do not advocate that co-extensive rule in judice. case sub recognize jurisprudence I that our has taken a past different turn in the I Specifically, decade. that, accept unlike the preceded it,
cases that and accompanied White contains a holding I, that was rendered under Article Section 8. Since the challenge propriety no involves judice
case sub
area,
fully
in this
I
jurisprudence
Article
Court’s
Yet, recognizing stare
force of stare decisis.
recognize the
analysis. My disagree-
only
beginning of the
decisis is
in fact is command-
opinion concerns what
with the lead
ment
To be
in the
of automobile searches.
by stare decisis
area
ed
holdings
previous
actual
in our
my
view the
precise,
more
cases,
White, do not command the construct the lead
including
In addi-
extrapolated from mere dicta White.
opinion has
I
that dicta is
tion,
explain why
believe
separately
I write
should not become the law.
unpersuasive and
*15
disagreement
with the lead
concerns
my
Since
with a
perhaps
begin
it is
best to
precedential value of
“The rulé of stare decisis declares
of stare decisis.
discussion
in
case
certainty,
of
a conclusion reached
one
that for the sake
follow,, if the facts are
to those which
applied
should. be
same,
though
parties may be differ-
substantially the
even
578,
898,
A.2d
v.
543 Pa.
673
Tilghman,
ent.”
(1996),
Corp.,
v.
Limestone
citing
Pittsburgh
n. 9
Burke
903
(1953).
390,
jurisprudential
most
Pa.
517 (1973) (“[T]he of stare decisis is not a doctrine A.2d error, legal concept but rather perpetuating vehicle and, thus, justice permits responds to the demands which flourish”). to Accord processes of the law orderly growth (2001) Pa. Mellinger, Allen v. Commonwealth, Dep’t Transp., (overruling Woods reasoning of that decision Pa. because flawed”). only applies to fundamentally “was The doctrine raised, actually argued adjudicated, only where issues case. necessary to the determination of the the decision Dictionary (6th ed.1990). doc- “The See Black’s Law respect litigated is limited to actual determinations to trine necessarily questions, applicable and is not decided Id. dicta or obiter dicta.” carefully reviewing jurisprudence
After this Court’s decisis, area, respect my to stare it is consid- giving due precedent view that this Court’s state constitutional ered nearly so hostile reasonable searches automobiles suggested by opinion’s approach, adopted the lead which is view, is, my language from White that both dicta and constitutionally suspect. The warrantless search of the vehi- proper cle this case was under Article Section 8 because probable unexpectedly, cause arose before had a chance That unex- secure search warrant. cause arose *16 I, exigency require is all I would pectedly under Article required by 8—since that is all that is the actual holdings explicating of this Court’s cases the automobile ex- see, Luv, 570, Pa. ception, e.g., Commonwealth v. 557 735 A.2d White, (1999); 45, 87 v. 543 Pa. Commonwealth 268, (1995); Pa. Rodriguez, Commonwealth v. 526 585 A.2d Baker, (1991); 145, v. 518 Pa. 541 A.2d 988 Commonwealth (1988), any unjustifiably is 1381 and since other rule hostile perfectly police conduct. reasonable upon focus is The lead opinion’s principal
The lead White.2 opinion extrapolates quasi-legislative from White a construct by stating opinion explains upon lead its focus White that White The is on,” claiming parties compels each the case the "have focused that a fact, ruling. point primary argu- favorable In of the Commonwealth’s
518 that forth multi
governing automobile searches sets various exigency per of that is part depending upon type tests exigencies that doing, opinion ceived. so the lead construes holding not basis for the but instead were were to,” merely exigencies “spoke additional the White Court White, however, at 701. upon,” Op. “touched or “addressed.” binding precedent proposition for the that this Court is aрproach an 8 to automobile searches follows Article Section consciously approach that was distinct different from the Amendment, by the Fourth much less command commanded Pennsylvania by anything unique ed constitutional By characterizing precedent, White as súch experience. opinion misapprehension an of perpetuates unfortunate lead non-precedential plurality with began opinion Labron, 344, v. Pa. 228 (Labron II). Moreover, if holding even White’s constituted forthright, acknowledged such a distinct and state constitu precedent, opinion upon portions tional the lead relies White that dicta. Pennsylvania
The lead
states
constitutional law
showing
probable
requires “both
cause and
an
circumstances” to conduct warrantless search of
automo
bile,
Amendment,
course,
long
while the Fourth
has
re
quired only showing
Op.
cause.
at 700 & n. 4.
465,
2013, 144
Maryland
Dyson,
See
v.
527 U.S.
119 S.Ct.
Labron,
(1999);
938,
L.Ed.2d 442
518 U.S.
2485, 135
(1996);
L.Ed.2d 1031
v. Carney,
S.Ct.
California
386, 105
(1985);
519
(1968). However,
639,
381,
jurisprudence
384
246 A.2d
I,
requirement
that this was a
of Article
Section
never stated
Amendment,
8,
parameters of
Fourth
distinct from the
by something unique
Pennsylvania
consti
and dictated
reflecting this
experience.
contrary,
tutional
To the
the cases
exclusively,
requirement
primarily,
relied
and often
exigency
from
or cases from this
upon
Supreme
cases
the U.S.
Court
Common
construing
the Fourth Amendment. See
I)
439,
Kilgore,
(Kilgore
wealth v.
544 Pa.
(1985); Holzer, Commonwealth v. (1978). most that can automo be said about this Court’s exception jurisprudence contemporane bile as reflected in the I, Labron I is that Kilgore ous decisions I, Fourth Court treated the Amendment Article Section question exigency as coterminous on the of whether some based, justify probable must shown to warrantless cause— search of an automobile. beyond requirement exigency
This Court’s of an the mobili- ty proved of the vehicle to be erroneous as a Fourth Amend- Supreme abundantly ment matter. The U.S. Court made this Although appellant apparently only invoked Article analysis the Court’s automobile en- nevertheless approach dorsed and followed the same followed in all of coterminous cases, heavily relying upon authority. our Fourth Amendment *18 520 I. reversing I and Labron See by summarily Kilgore
clear Labron, 938, 2485, 116 135 v. 518 U.S. S.Ct. Pennsylvania (The (1996).4 did not seek L.Ed.2d 1031 Commonwealth White.) certiorari to convert what had been purported
The case which first
exception
automobile
approach
coterminous
Court’s
com
exacting
into a
state constitutional
separate
more
I,
very
Opinion
mand
Article
8 was the
brief
under
v.
Announcing
Judgment
of the Court
Commonwealth
(1997) (Labron II)
Labron,
344,
which
547 Pa.
[had]
[C]ourt,
importance of
considering
“this
when
the relative
convictions,
securing criminal
has struck
privacy
against
ultimately
higher
disapprove
a line
It is not unusual for a
court to
authority
developed
daily
lower court has
in the
task of
See,
Sphere
construing
higher
governing precedent.
e.g.,
court’s
541,
Works,
Philadelphia
Id., A.2d quoting Commonwealth White,” (1995). “[fjollowing this citation to only It was stated, ... ‘this that Labron I “concluded Com plurality exception has jurisprudence of monwealth’s cause and the long required both the existence *19 justify of circumstances to a warrantless presence ” II, 228, quoting search.’ Labron 690 A.2d at Commonwealth (1995) (Labron I). Labron, 917, 924 non-binding of plurality’s The Labron II characterization White, however, First, Labron I and was erroneous. both in I that opinion is no in the Labron there indication (“this approach constitutional followed there Commonwealth’s any Pennsylvania jurisprudence”) wаs different under Labron I than under the Fourth Amendment. Constitution cited, quoted, upon never or relied the “different consti- [state language explicating in balance” the White tutional] Indeed, exception. Labron I the automobile embraced approach, exclusively upon same coterminous reliant Fourth precedent, Amendment cases for substantive that all of our Second, fact, had employed point. point cases I accurately Labron could not have cited for the White proposition plurality attributed to White the Labron II i.e., opinion, that this “has struck a different balance” I, respect under Article 8 with to the automobile thing. exception. any The White Court never said such The “different balance” discussion in [state constitutional] White, quoted by plurality, which was Labron II did not exception require involve the automobile to the warrant ment, exception. but rather the search incident to arrest Luv, also Pa. A.2d See (1999) (opinion by recognizing holdings). author of White twin analysis This after had already disposed occurred White In exception striking claim there. its different state constitutional balance on the search incident to arrest Fourth
question,
rejected
the White Court
Amendment
Belton,
454, 101
holding in New York v.
453 U.S.
S.Ct.
(1981) (under
Amendment, police
L.Ed.2d 768
Fourth
officer
may,
contemporaneous
occupant
incident to arrest of
vehicle)
automobile,
compartment of
passenger
search
justifiable
is no
stated
“there
incident
arrest
Pennsylvania
under the
Constitution save
the search
.the
which
person
person occupies
and the immediate area
custody....”
during his
was raised under Article Section 8 and therefore in an holding, nothing resulted' Article Section 8 remotely suggested Pennsylvania that the Constitution com- approach fundamentally manded a different the automobile than employed under the Fourth Amendment. Indeed, given explicit rejecting hоw the White Court was setting Belton and forth distinct constitutional on question, doctrine the search incident to arrest the absence approach of a similar the discussion of the automobile exception ineluctably suggests that simply perceived the Court Instead, no such distinction. White decided the automobile coterminous, exception question by employing the same *20 Fourth Amendment —based construct this Court had devel- oped years, and followed for before in Pennsylva- the reversal Labron, (1995) (Labron 1). nia v. 543 Pa. Although opinion today the lead is not to to careful cite the plurality, Labron II flawed its identical conclusion that White deliberately consciously separate and established a and dis- tinct state constitutional construct is no less erroneous. The decision, very language and structure of the White as well as preceded the which shaped analysis cases the against opinion’s inform the lead of characterization the deci- sion. upon
The reliance White the instant matter is even more opinion upon parts dubious because the lead relies of White not necessary compound to the decision. To mat- ters, extremely problematic right. this dicta is in its own opinion opinion sets forth what the lead here describes circum- exigent “first” state constitutional test as the as follows: requirement to the warrant exception stances sum, required that a warrant is general rule is search any exception As an to police may conduct search. before rule, without a warrant police may this vehicle (1) auto- is cause to believe that an where: there (2) activity; of criminal unless the mobile contains evidence of automo- impounded, occupants car is or searched away likely [the] bile to drive contents are again by police; be located automobile never way in such a police have obtained this information search, ie., they a warrant for could not have secured there are circumstances. (emphasis original). “occupants
Since the White Court’s articulation of this ele- case, part holding ment” was not even a of the actual much holding, any less essential to the it was dicta under Bender, approach precedent. rational Hunsberger See (1962) (statement Pa. prior opinion, 180 A.2d dicta, clearly merely which was not decisional but “is us”); Cassell, binding upon In re Estate 6 A.2d (1939) (comments 60, 61 not necessary to decision of case are and, therefore, dicta binding authority); are not Valles v. Center, (Pa.Su- Albert Einstein Medical *21 (same). per.2000) The in White did not discuss Court even “occupants likely away” requirement explaining ... drive Instead, why disapproved it warrantless search. disapproved on ground the search “knew might drug what automobiles be involved trans- [in
advance
requested warrants for
action]
could have
the search
anjd
Accordingly,
tion,” analytically In both identical Ionata. cases the ample concerning had advance information fact an likely that a search of automobile would be involved in true, apprehending suspect. When that is a warrant is required may before the automobile be As searched. Supreme v. Maro- United States Court stated Chambers ney: Carroll, nor supra,
Neither other cases this Court require suggest every or that in conceivable circumstance an probable may the search of auto even with cause be protection privacy made without extra for that a warrant jumish probable affords. But circumstances to search a particular particular auto articles cause are most often unforeseeable.... 1980-81, at at 26 L.Ed.2d at U.S. S.Ct. added.) words,
(Emphasis although other the Fourth generally requires probable Amendment cause to be deter- by magistrate mined and a warrant to be issued before a conducted, may search unforeseen involv- circumstances of an ing coupled presence the search with the cause, requirement excuse the for a case, warrant. In Ionata and in this no there were unfore- *22 knew in advance what automo- Police seen circumstances. warrants requested and could might involved have biles be automobiles, just they did for for the search error, was in there- dwellings. Superior and persons permissible search was under determining in the fore exigent and that circumstances exception” “automobile the justify the search. existed (footnote omitted). Thus, irrespective of A.2d at 900-01 dicta, exception actual said in the automobile
what White from fact that holding followed the decision regard, holding not In this the unexpectedly. cause did arise previous with such as Bаker perfectly was consistent cases (which Ionata, understanding this Court’s and reflected mistaken) ultimately Fourth auto- proved Amendment exception. revealing very In addition to narrow mobile White, holding significant is also passage above because Supreme to cases from U.S. Court and adverts to cites Fourth without a hint of or disapproval Amendment disagreement. passage just thus how demonstrates de- pendent holding upon ongoing the Court’s White law, perception of Fourth Amendment obvious it is how separate that there was no and distinct state constitutional analysis at work. opinion reading repre-
The lead
dismisses
of White as
“[cjasual
senting
application
and convenient
of the dicta
is
Op.
opinion’s
at
n. 9. This
not so. The lead
label.”
any
interpretation
not draw
distinction between mere
does
“holdings.”
and constitutional
It
opinions
“discussions”
is
regard
in this
steadfast
even when the “discussion”
distress-
ingly problematical. Virtually
entirety
opin-
of the lead
concurrence, including
ion’s criticism of this
its mischaracteri-
White,
zation of the
id. at
from
dissent
derives
its
rejection of such a distinction. This
does not
concurrence
employ
description
dicta as a
“label” but as an accurate
mere
and erroneous discussion in
the non-essential
White. The
holding
fact of the
is that the
matter
quote
which I
that it
have been careful
above so
not
misunderstood,
an
application
does
involve
promulgate
the lead
would
as settled
“discussion”
constitutional doctrine.5
binding state
upon
proble-
dicta is
opinion’s
The lead
reliance
establishing
separate
Far from
matic for a further reason.
construct,
and seizure
the White
state constitutional search
opinion’s
forth
lead
so-called “first”
setting
dicta
holding, was
exception, like the White
“sum-
circumstances
*23
understanding of
Amend-
marizing” the White Court’s
Fourth
White,
Specifically,
setting
A.2d at 900.
in
ment law.
669
exception, White
stated that it
forth this would—be
the
Court
immediately
quotation
an
merely summаrizing
preceding
was
42, 51,
26
Maroney,
from Chambers v.
U.S.
S.Ct.
(1970), which in turn
the
L.Ed.2d 419
characterized
U.S.
States,
Supreme Court’s decision Carroll United
U.S.
(1925).
280,
More was mistaken. The White characterization over- bers/Carroll very paragraph opinion, looked the next the Chambers which reads follows:
Arguably, preference magistrate’s for a because judgment, only the immobilization of the car should be obtained; arguably, only until a warrant is permitted My dissenting responded majority's opinion in White to the White holding holding question exception of the automobile actual on —a purported promulgating that never even to be a view of Article the Fourth Amendment. Section 8 that was different distinct from argued require The White dissent then for a rule that would not even arising exigency probable unexpectedly the added cause which had (or certainly crept largely unacknowledged) unnoticed into this Court’s rule, Rodriguez. automobile course, cases such as Baker and That subsequently applied Supreme that the U.S. is the rule entirely Kilgore I and I. The different in when it reversed Labron issue is opinion promulgate suspect this case because the lead now seeks to doctrine, and decision in this White dicta as state constitutional its analysis. regard is essential to its magistrate until permissible intrusion is the “lesser” “greater.” “greater” But which is the authorizes the question “lesser” intrusion is itself a debatable which the may depend variety on a of circumstances. and the answer no between purposes, For constitutional we see difference a car seizing holding presenting on the one hand before the other- probable magistrate cause issue to a on hand out an immediate search without a warrant. carrying search, cause to course is reasonable Given either under the Fourth Amendment. added). 51-52, Thus, (emphasis
399 U.S. at S.Ct. 1975 the extent dicta embraced the lead ... require “occupants likely away” would to drive ele- ment, very it was an erroneous characterization Fourth authority “summarizing.” Amendment We should ac- mistake, knowledge perpetuate it.
Furthermore, misapprehension White’s of federal law this regard prior stands contrast to this Court’s decisions cases, Milyak. recog- Baker and both of those this Court nized Chambers instruction that an alternative to an immedi- *24 ate car search is to until a warrant is immobilize the vehicle that, necessarily secured but since immobilization is not less search, search, intrusive than an an immediate immediate immobilization, constitutionally than proper. rather is Com- Baker, 145, 1381, v. monwealth 518 Pa. 541 A.2d 1383-84 (1988); 2, 1346, Milyak, Commonwealth v. 493 A.2d (1985). simply 1349 I cannot join opinion the lead convert- ing summary mistaken of Fourth Amendment law in the “binding,” dicta into a novel state constitutional search Pennsylvania jurispru- seizure construct. constitutional dence should be made of sterner stuff.6 adopt I6. also would not the erroneous dicta in White because this radical, through novel construct was not arrived at an actual state Edmunds, analysis. constitutional In 526 Commonwealth v. Pa. (1991), this Court stated that it is “essential” that a court I, undertaking independent analysis an of Article Section 8 consider "at specific Pennsylvania least.” four areas: the text of the constitutional provision; law; history including provision, of the case states; policy related case law from other considerations unique Pennsylvania. Id. at construct set forth 528 contrary is suggests that this concurrence
The lead affording our citizens by White] to a our court [in “declaration I, Pennsyl- 8 of the protections under Article Section broader than under the Fourth Amendment vania Constitution opinion asserts States Constitution.” The lead United at 703-04. “binding precedent.” Op. is this “declaration” above, no fact, White contains such point of as demonstrated exception. automobile More- respect with to the declaration I, 8 over, has that Article Section the fact that this Court held than the Fourth Amendment protections affords broader automatically requires not mean that it some contexts does in all As this greater protections contexts. different Glass, Pa. 754 A.2d 562 Court noted Commonwealth (2000): 655, 660 protections to greater fact that this has “accorded Court I, § Article 8 of our constitu-
the citizens of this state under circumstances,” v.] tion, [Commonwealth under certain (Pa.1999) ], [427,] not ... 738 A.2d 431 does Cleckley, [ any right in favor of new or finding command a reflexive contrary, apply should To the we interpretation asserted. independent our own state prevailing standard “where Id., standard.” analysis suggest a distinct does cases); Ed- (collecting A.2d at 431-32 1991). ([Pa.] munds, ... A.2d D.M., Pa. Accord In re under Article (refusing protection to afford broader ” Thus, stops). the fact the White “Terry
8 in context of Pennsyl- explicitly greater protections found under to arrest in the context of a search incident vania Constitution made, finding, same automatically not mean that it does silentio, In- exception. respect sub with deed, contrary presumption presumption is to the attending fully out other circumstances borne *25 any analysis, by supported by nor White dicta was not an Edmunds unique Pennsylvania be deemed to constitutional concerns that could Quite
jurisprudence. contrary, the source for the White dicta to the Chambers, Amendment incomplete quotation from a Fourth was an Court, message changed Supreme which the central from the U.S. case quotation. i.e., articulated no the fact that the Court opinion, White and charters between the state federal distinction that it cited and exception, automobile the fact context cases, not the fact that did quoted Fourth Amendment and distinct constitutional doctrine. purport to еstablish state only this Court with fundamentally, More White “binds” issue, actually at and propositions to which were respect decided, “decla- actually in the case. Broad but non-essential inherent wisdom precedent; ultimately, not their rations” are play any role they whether will persuasiveness determine Blouse, 531 Pa. Commonwealth v. future decisions. See (1992) J., (Flaherty, joined Zappa- JJ., instruc- dissenting) (although dicta be Cappy, la and court, precedential it is not predicting direction tive binding into constitutional authority). Dicta is converted West, 505 U.S. through repetition. Wright v. precedent Cf opinion). (plurality 120 L.Ed.2d S.Ct. jurispru- Notwithstanding inescapable constitutional dicta, approach in the in the White dential difficulties inherent reading opinion proffers what it calls a “comfortable” the lead status as a accord its dicta constitutional would White interpret” ... Article “construct” “created law, disregard or federal but misinterpret which did not Pennsylvania law “merely attempted] ... to reconcile instead law, estab- aspects with certain of federal but nevertheless searches.” independent regarding law automobile lish state might plausible This if there were some Op. at 704. view perceived indication in the that the Court there White respect law with a difference between federal state to resolve the applied the distinction Viewing all. But is no such indication—at matter. there patient doctor to kill the requires this fashion save him. importantly, interpretation a revisionist of White
More such explicit expression as an and harmonious principle, consciously up constitutional offered different Fourth Amend- approach prevailed to what then under the ment, of this implausible light in the extreme Court’s
580 in I I. Kilgore
decisions and Labron White was decided on the I, i.e., 29,1995. I very day same as Labron December Labron it, great length, quoted explicitly at from and discussed White earlier, applied Kilgore days it. I was decided three on 26, 1995, in although appears December much later (volume 677, Reporter opposed Atlantic Second as to volume 669), to, from, quotes and it makes reference the subse- I. I I quently Kilgore Labron After and Labron —decided Court, by Supreme were reversed and remanded the U.S. Court, plurality opinions, I on separate “reaffirmed” Labron II, grounds, constitutional Labron A.2d at but state 690 I prior Kilgore vacated the order because no state constitu- at Kilgore, tional claim was issue there. Commonwealth v. II) Pa. (Kilgore (Opinion A.2d Court). Announcing Judgment of Thus, contemporaneous these three decisions covered the spectrum of available automobile chal- constitutional lenges: White sounded under the Constitution alone; Kilgore only; involved federal constitutional claim apparently and Labron was a case where the claim was raised under both for present purposes charters. What is notable suggestion that there is no in the inter-related decisions approach depend- themselves that the constitutional differed ing upon only, only, whether the claim was 'or state — federal — mixed. notion that this forging Court White was some conscious, harmonious, path state constitutional which was distinct from simply scrutiny federal law 'does withstand light companion of its cases. Court,
Significantly, Supreme the U.S. which had occasion to review this exception jurisprudence Court’s automobile decided, immediately after certainly the three cases were did opinion’s interpretation hot share the lead approach White’s recognized divergence “reconciliation” of a in state and per reversing federal law. its curiam decision I Kilgore I, high argument, Labron Court addressed an made Labron, opinions this Court’s decided on ade- quate independent grounds i.e., state Article — rejected following that claim with observa- 8. The Court tions, recognition include a of White: which jurisdiction Labron claims no to review
Respondent
we hаve
judgment
Pennsylvania Supreme
case
his
because
adequate
on an
state
independent
Court’s
rests
viz.,
jurisprudence of the
ground,
“this Commonwealth’s
*27
/,]
A.2d,
...
924.
exception.”
669
at
[Labron
disagree.
language
quoted
“plain
have
is not a
We
The
we
us “the
cases [were]
statement” sufficient
tell
federal
did not
being
only
purpose
guidance,
used
for the
compel
court ha[d]
themselves
the result
reached.”
1032, 1041,
3469,
v.
77
Michigan
Long, 463 U.S.
103 S.Ct.
(1983).
Pennsylvania
1201 ...
Supreme
L.Ed.2d
The
decisions;
noted,
did
its
discuss several of
own
as it
howev
er,
analysis
some of those cases relied on an
of our cases on
see,
I,]
A.2d,
...
exception,
e.g.,
the automobile
669
[Labron
Holzer,
93,
(observing
at 921
... 480 Pa.
([Pa.] 1978),
101,
Coolidge
106
v. New
cited
443,
2022,
...
Hampshire, 403 U.S.
91
518 U.S. at S.Ct. then, Apparently, I am not alone in view that “this jurisprudence exception” Commonwealth’s of the automobile White, Labron, decided-juris- at the time and Kilgore prudence which an exigency beyond mobility held that of a present requirement— vehicle must be to excuse the warrant constitutional independently not based distinct state would opinion No doubt the lead deem U.S. principles. jurisprudence, including of our Supreme Court’s view submit, I my respectfully than own. as no less “incredible” however, argument” or require “reticular does patent, op. at to see the severe gymnastics,” “mental dicta, any foundation in and the lack of flaws the White judicial rig- principle. merely requires It state constitutiоnal i.e., openly to confront fatal flaws willingness or: at “authority” issue. which relies is upon dicta in White the lead fundamentally being flawed. In addition to
multiply
it is also
precedent,
or federal
unmoored
circumstances,
multiple potential exigent
unworkable. The
“tests,”
multiple governing
outlined in White is
each with
street,
on the
which is
impractical
the extreme. Police
occur,
correctly
hope
all of these searches
cannot
where
might
split
grown
a court
anticipate how
later
these new—
*28
effect, it
precedent having
If it
stare decisis
hairs.
or,
minimum,
at a
overruling
would warrant
reconsideration.
(2001) (overrul-
Pa.
Mellinger,
Allen v.
Rather dicta, in I to proceed construct set forth the White would our actual with light experience decide it I exception. purposes disposing appeal, For of this shall that, actually if assume this Court ever examined the issue matter, majority a would hold a state constitutional Justices exigency requirement that the characterized our coexten- excep- Fourth 8 automobile sive Amendment/Article tion until the reversal v. La- jurisprudence (1995) (Labron bron, T), Pa. should be a constitutional command. embraced as state Consideration have decided under that construct confirms of the cases we here was reasonable. that the search vehicle so approved warrantless searches This has (2) cause, probable long police as: had ie., prevented in circumstances that unexpectedly, cause arose probable cause to securing a before police from warrant any separate and There was never the vehicle arose. unlikely the vehicle was ever be requirement additional holding аctual exigency for the to exist. The again found do cases obviously fits this construct —as numerous contemporaneously or with White. decided before Baker, police tip a from a example, For received gun defendant had waved a at an informant that the reliable alley. in an informant that the unknown individual stated old, dilapidated an red convertible with driving defendant was top down. Police soon located the car with the defendant up approximately twenty in it and After set surveillance. minutes, police thirty approached, the defendant exited the and, subsequently, car searched the vehicle. opinion, upheld unanimous this Court the warrantless vehicle search, reasoning as follows: exigencies may obtaining render the of a warrant
[C]ertain reasonably practicable under the circumstances of a case, and, occurs, given when that vehicle searches conduct- proper proba- ed without warrants have deemed been where present.... ble cause was This is not a case where particular carrying knew hours advance vehicle locale, parked particular evidence of would be in a crime reasonably practicable such that it would have been encountering obtain a search warrant before the vehicle to Rather the instant search was searched. conducted police stopped moving just thirty vehicle when minutes *29 reported requirement after a crime. Inasmuch as the of probable satisfied, cause was exigencies mobility of time having inadequate the vehicle and there been prop- to obtain a warrant rendered the search opportunity er. Baker, 1381, 518 Pa. 541 A.2d
(1988) (emphasis supplied). Commonwealth v. in
Baker recently approvingly cited Luv, (1999) (applying Baker’s two- 557 Pa. probable factors” of cause “determining fold “the existence exigent noting circumstances” and presence Baker involved “police in fact that did not know exigency in criminal evidence would be located well advance where the warrant”). reasonably not obtained and could have Luv, exigent found that circumstances existed this Court alia, “[tjhere inter because, ... was no time to secure a unexpectedly cause arose to search his warrant” once cai'. Id. at 94.7 Baker’s
Moreover, approach has been embraced numer- cases, by this In those wheth- ous other cases decided Court. police previous particular information that a vehicle er the had of a has been the would be involved the commission crime exigent determining factor in whether circumstances decisive See Common- justified a warrantless automobile search. Labron, (1995) 1) wealth v. Pa. A.2d 917 {Labron (no where, exigent prior arranging surveil- circumstances defendant, had information that defen- specific lance of officer Com- transport drugs); dant his Lincoln automobile to used Rodriguez, monwealth v.
(exigent
circumstances exist where
did not have ad-
opinion
upon Luv
of its view that
7. The lead
relies
as corroboration
deliberately
Pennsylvania
set forth a distinct
constitutional test
governing
exception cases. The decision in Luv never
I,
Moreover,
8 or the
Amendment.
mentions Article
Fourth
although
it also cites and
the decision indeed cites and follows
alleged
pre-dated the
"decla-
follows Baker—which
state constitutional
and was not decided under Article
Section 8—
ration” White
suggesting
at
in the two
without ever
that different tests were
issue
cases. The most that can be said about Luv is that the basis for the
unclear;
certainly
validity
adds little to the
of the dicta in
decision is
significant
Luv
because
White. The lead
also deems
where,
they did
were faced with a circumstance
if
case
vehicle,
immediately stop and search the
Luv would have continued on
disappearance
way,
which
have resulted in the
of the evidence.
his
Luv,
certainly
present
was аn
fact that was
535 that and husband would travel vanee notice defendant her be automobile); ing County particular in York (no (1988) Ionata, 472, (plurality) 544 v. 518 Pa. A.2d 917 police circumstances where had four hours’ advance drugs particu would transporting notice that defendant be lar and had warrant for defen automobile obtained search person premises).8 dant’s and judice, unquestionably probable the case sub there was that appel-
cause search the white Lexus for the firearms that very only lants had fired from car at the victims a short street, probable time before. The cause arose on the night, unexpectedly, only shooting,. middle after a not, not, police prior about which could and did have knowl- edge. cause, Since the had was no there prior warrant, opportunity to secure a the warrantless search plainly here justified by exigent circumstances and was proper prior under our case law. Under the doctrine of stare decisis, enough is decide this case.
I confronting realize there some discomfort in acknowledging cases, flaws in prior even when the mistake may be inadvertent occurred in mere dicta. But a responsible jurisprudence reasoned and simply cannot turn a eye blind to the mistake. See The Birth Center v. Paul St. Inc., 386, Companies, 376, 567 Pa. (Zappa 391 la, J., Castille, joined J., by dissenting) (discussing Gray v. Co., (1966)). Nationwide Mutual Ins. 223 8A.2d West, Wright 505 U.S. 120 S.Ct. L.Ed.2d Cf (1992) (plurality opinion). may It be that if this Court presented squarely raising with a case the material question of whether immobilization of the automobile exigency recognized driver renders the in Baker and White inapplicable under Article Section it would conclude preference рiior 8. The basis for the in our cases that there has been no i.e., previous opportunity to obtain a warrant is understandable: value, guards against pretextual stops. automobile But I see no consti- otherwise, requirement tutional or that is served an ad hoc that there showing also impounded, be a that "unless the car is searched or occupants likely away of the automobile are to drive and contents of the again by police.” never be located rejected set forth and that which was approximating view 42, 51, 90 S.Ct. 399 U.S. Maroney, Chambers (1970), unique Pennsylvania by the is commanded L.Ed.2d not, however, that this has announce should experience. We *31 demonstrably has not. most when it already happened, lead construct circumstances super-exigent from constitutional law taken settled state opinion poses as Fourth in that construed dicta a case fundamentally flawed discovering law, purport did not to be dicta which Amendment I, of Article Section requirement distinct announcing some reasons judgment, Although I concur in the ultimate 8. with the lead above, disagree respectfully I I have set forth analytical approach. opinion’s concurring opinion. joins this
Justice NEWMAN
SAYLOR, concurring.
Justice
scope
protection
that the
Mr.
Castille
agree
I
with
Justice
Pennsylvania Constitu-
8 of the
by Article
afforded
less
is a matter
of automobile searches
tion in the arena
This
opinion. portrays.1
Court’s
majority
than
settled
cause
required
probable
both
has nevertheless
jurisprudence
search, see
a warrantless
justify
to
exigent
circumstances
87,
570, 581,
93
Luv,
735 A.2d
v.
557 Pa.
Commonwealth
overview,
appear
to
(1999), and,
it would
at least in broad
exigent circum-
to dilute the
Court’s intent
have been the
to
related
defining
solely
terms
requirement by
stances
cause.2
development
view,
consider the term
my
to
preferable,
It is
Cooke,
163
imprecise,” State
“purposely
circumstances as
92,
(2000),
by
it is informed
657,
as
N.J.
Additionally, it is
id.
facts of the case. Sеe
individualized
uncertainty
Court’s
portion
embodied
that a
1.
I believe
changes in Fourth Amend-
fundamental
prior decisional law is due to
(cid:127)
Supreme
Court.
jurisprudence
the United States
effectuated
ment
See
note 3.
infra
concurring opinion, the
Certainly,
Castille’s
reflected in Justice
support his
language in
instances that would
employed
some
Court has
regard.
view in this
considered
support
to
recognize
exigency required
that the
important
expectation
according
privacy
warrantless search varies
generally 3
place
connected with the
to be searched. See
A Treatise
R.
Wayne
LaFave,
on the
and Seizure:
Search
(3d
7.2(a),
7.2(b),
§
§
at
at 481
Fourth
Amendment
ed.1996). Accordingly,
exigencies
courts have described the
demanding
required
support
a vehicle search
terms less
home,
necessary
support
a search of a
based
than those
expectation
privacy
associated with the
upon the lesser
Labron,
86, 95, 669
former. Accord
543 Pa.
(1995)
(recognizing
A.2d
as a matter of state constitu
jurisprudence
expectation
privacy
with
tional
“one’s
respect to an automobile is
less than that relat
significantly
original;
citation
ing
(emphasis
to one’s home or office”
omitted)), rev’d,
Here, concerning did not information the the receive warrant, the shooting sufficiently in advance secure running, was situated the middle of the street vehicle locating loaded firearms before given the concern surrounding moving ordering the vehicle or search area, reasonably practicable to obtain a warrant. it was not important, scope More of the search was limited namely, exigency justifying instigation, its the seizure Zhahir, Commonwealth v. generally loaded firearms. See 545, 558, (explaining Pa. that “a exigency justifying warrantless search is circumscribed initiation”). agree I that the warrantless search its therefore justified. NIGRO, dissenting.
Justice disagree Opinion Announcing I with the conclusion of the Announcing Judg- Judgment (“Opinion of the Court ment”) that circumstances excused the Common- wealth’s warrantless search of the car the instant case. Here, Appellants already fact had despite the been custody from car and into removed taken before occurred, opinion the lead nonetheless finds that the surrounding Appellants circumstances the arrest created exigency justify such an as to an immediate warrantless therefore, I agree respectfully search of the car. cannot dissent. interpretation
I of Article 8 of the believe today proffers Constitution the lead jurisprudence from thе of this differs settled Commonwealth. *33 I, generally prohibits police from Article Section 8 search- ing person property seizing personal property a or his and Petroll, without a search warrant. v. 558 Pa. Commonwealth (1999). 565, 993, 738 A.2d 998 “A search warrant indicates magistrate upon have convinced a neutral a belief, cause, showing probable of which is a reasonable based circumstances, surrounding totality on facts and the of "exigency in the constitutional context amounts to circumstances warrant”). impracticable to a make it obtain
539
a
is
illegal activity
occurring
that an
or evidence of
crime
Jones,
998-99
v.
542
present.”
(citing
Id. at
Commonwealth
418,
114,
(1995)). A
Pa.
668 A.2d
116-17
search without
proper
probable
warrant
where the
have
cause
being
had
or is
committed and an
to believe that a crime
been
exception
requirement applies.
warrant
Common-
See
Riedel,
(1994)(warrant
172,
135,
wealth v.
539 Pa.
651 A.2d
139
consent,
consent,
exceptions
implied
include actual
circumstances).
arrest,
exigent
incident to
law, a
is not
Under federal
search of vehicle
unreasonable
cause,
though
if
a warrant has not
probable
it is based on
even
465,
actually
Dyson,
obtained.
v.
527
Maryland
been
See
U.S.
(1999).
466-67,
2013,
Constitution has an that is from that of distinct the Fourth Amendment the United Constitution, and the decisions' of the United States States Supreme dispositive questions regarding Court are rights guaranteed to citizens of this Commonwealth under the Kohl, 152, Pa. state constitution. See Commonwealth v. (1992). 308, considering 615 A.2d relative When convictions, importance privacy against securing criminal struck a Court has different balance than has the United Mason, Supreme v. 535 Pa. States Court. Commonwealth (1993). 560, 251, 637 A.2d 257 n. 3 Under this Common- balance, privacy given an individual’s wealth’s interests are greater than law. Id. deference under federal
Accordingly,
jurisprudence
of this Commonwealth re-
quires
presence
both the existence of
cause and the
justify
circumstances to
warrantless search of a
Luv,
vehicle. See
557 Pa.
735 A.2d
Commonwealth
(Pa.1999);
669 A.2d
Gelineau,
(1995);
900-02
Commonwealth v.
(Pa.Super.1997).
“One without the other is insufficient to
*34
Luv,
Exigent
A.2d
at 93.
justify a warrantless search.”
police have obtained the infor-
circumstances exist where the
way
“in such a
probable
them with
cause
supplying
mation
a warrant for the search.”
they
could not have secured
(6th
Dictionary
White,
In circumstances excused the case, car in the instant Appellants’ search of rantless in Judgment upon a footnote Opinion Announcing the relies White, in this Court’s decision Commonwealth (1995), overarching to what amounts to an create police. on to exception potential danger warrant based police that “a search an this Court stated officer in person person and the area which the detained arrestee’s obtaining weapons from or prevent in order to the arrestee evidence,” circumstances, but “the destroying absent privacy against interests remain- intact as a war- arrestee’s In a rantless search.” Id. at 902. footnote the discussion argument that the defendant’s rejecting the Commonwealth’s arrest, to his permissibly, vehicle was searched incident Court White stated: propose to invalidate warrantless searches of
We do not ,the police vehicles where must search order to avoid others, or occur in case danger might to themselves as explosives had reason to where believe that this, howеver, Emergencies such present the vehicle. part of this case. are added). Opinion n. In contrast to the (emphasis
Id. at 902 Judgment, single I do not that this Announcing believe supplies separate in White the basis for a and distinct footnote view, Instead, requirement. my to the warrant merely recognizes danger this footnote or others circumstances, under certain create situation which might, police will be unable to effectuate a search for which immediately and without they act exists unless cause judicial approval. seeking prior did me, however, simply situation that such a
It is clear *35 search, Here, of at the time the instant case. in the not exist already car custody and the was already in Appellants were circumstances, these police. of Given control the under the waited the scene and clearly could have secured police the There was warrant was obtained.1 car while search with the act them to police required to that danger no the simply car without a warrant. Appellants’ immediately to search otherwise, Announcing Judg- the Opinion the concluding In middle car was the that it was critical the states ment the running. According to engine with its of a lane of traffic car “required” to remove the police were opinion, the lead I engine. off car’s of and to turn the right way from the First, stopped car was reveals the disagree. the record road, running two lanes each direction a four-lane with on N.T., 3/10/98, street. angle on both sides the plus parking right in the hand lane stopped at 265. car was N.T., traffic, open lanes to traffic. leaving three southbound 3/10/98, 204-06, totally Clearly, the car not at 265. traffic, early morning hours on a obstructing especially the Second, to car Sunday.2 police the did need enter the police probable cause to Appellants not contest that had do 1. Thus, regarding shooting. that the car contained evidence believe legally police аppears that the would have been able to secure sought they simply require- they if had followed the warrant evidence However, acknowledge, they did not even ment. as even the N.T., 3/10/98, searching at attempt to a warrant before the car. secure 234-36, fact, McDevitt testified that he never 263-64. In Lieutenant N.T., 3/10/98, obtaining at 264. As the trial even considered a warrant. magistrates hearing, are suppression at the there court noted twenty-four day express emergency judges duty hours a for the on N.T., 3/11/98, Thus, secttring issuing purpose warrants. at 333. magistrate request waiting considered a for a car and while a neutral constitutional, reasonable, to an alternative search warrant was the car. immediate warrantless search of Moreover, proper police procedure man- would one would think that possible leaving as undisturbed as in order to date the arrest scene preservation of evidence would seem to properly evidence. The collect this, Appellants particularly important where in a case such as discharged weapons inside the car. alleged their from to have ignition keys. According to turn off the and remove the order police testimony, open Appel- to the car doors were left when custody. lants were removed from the car and taken into N.T., 3/10/98, If any danger at 273. there was created road, running parked car while in the an officer could have easily ignition reached into the car and turned the off and Thus, keys. accept opinion’s I cannot removed the the lead assumption necessary immediately that it was for the to car, car, Appellants’ move therefore enter and search the prior obtaining a warrant. disagree opinion’s
I with also the lead conclusion possible presence weapon Appellants’ posed of a car any attempted my who car. threat officer move the view, reasoning Oрinion Announcing Judgment First, faulty only leading for two basis for reasons. .is *36 opinion’s police danger conclusion that the were in was the by bald weap- assertion Lieutenant McDevitt that one of the alleged shooting, ons to in a 9mm have been used the automat- ic handgun, fragile easily go bumped was and could off if or N.T., 3/10/98, on. at stepped 261. Lieutenant McDevitt qualified expert was not as a firearms was there absolute- ly support gun no evidence to his that could assertion the Second, discharge on its police somehow own. officers circumstances, exigent they which create then use as justification for to failing requirement. follow the warrant See Melendez, Commonwealth v. 676 A.2d (1996). case, In was the instant there no evidence of an emergency required police that the car move the before Thus, procuring by moving a warrant. car the immedi- ately, police a perceived exigency they the created that used justification failing Furthermore, as for a obtain warrant. police exigent by the claiming created circumstances' car, gun, which possibly might go could the off all Thus, view, my leading opinion’s the unfounded itself. police on danger justify reliance to the does not the warrant- Appellants’ less search of car.3 Gelineau, (Pa.Super.1997), In Commonwealth the arguments Superior rejected adopted by to the similar ones the justifies the Announcing Judgment further Opinion the police engaged by explaining that the
warrantless search safety passen- establishing the the solely to search limited According to car. the testi- Appellants’ ger compartment simultaneously searched police two officers mony police, of the sides of the vehicle passenger driver and floor on both the the floor mat was “askew.” that the driver’s side observing after However, 8/10/98, safety if of the officer N.T., 212-13. the at circumstances, I fail moving car a basis for part of this side of the vehicle was why passenger see reasoning, Appellants’ opinion’s the lead exigency. Under subject to a warrantless search entire car would have been in the or other device contained weapon because anywhere moving an the car. potentially injured car could officer have effect, Judgment automatically Opinion Announcing if subjects entire vehicles to warrantless searches danger exigency, regardless object an invoke of their search. today, Opinion Announcing Judg-
By its decision merely on the ment has warrantless searches based authorized so, doing essentially potential danger police, has, opinion requirement exigency. abandons the The lead effect, an Al- created swallows rule. action, though truly exigent circumstances demand immediate today. Although lead in Gdineau were hand- defendants following away stop, a traffic cuffed and taken from their car surrounding argued dangerous that the circumstances weapons might stop possibility the location of the traffic and the *37 reject- exigent have been in the vehicle constituted circumstances. ing arguments, the Commonwealth's the court stated that the circum- surrounding an stop the of the vehicle "did not create such stances exigency justify immediate warrantless search” of the defen- as to an explained nothing in dants' car. Id. at 192. The court that there was circumstances, any exigent there were the record to indicate justify including danger police public, which would or the nothing Id. The court also noted that warrantless search. at 194. safety give to fear for their since both occurred to the officers reason Id. police. of the defendants were handcuffed and under the control Thus, though the court concluded that cause existed for even search, police the search was rendered unreasonable because the the they clearly get opportunity when had the to obtain failed to a warrant thе car. Id. prior searching one to was, above, exigency as noted no in the instant case and there therefore, Appellants’ no for an search of car. need immediate in no police Common sense dictates that the would have been they pro- greater danger simply had secured the scene searching a warrant car.4 cured before the time, by upholding At the the warrantless search of same car, Appellants’ Opinion Announcing Judgment the the allows police virtually discretion to invoke the mantra of unfettered “police danger” pretext searching as a to vehicles without question police can no of warrant. There be the officers dangerous often face situations. Howev- er, bestowing police with unfettered discretion conduct danger sim- upon warrantless searches the mere assertion ply protections does not with either the afforded reconcile I precedent.5 our state constitution or this Court’s dissent.6 joins dissenting opinion. ZAPPALA in this Chief Justice Stroud, 1997), (Pa.Super. 4. In Commonwealth v. Superior police required the Court found that the to secure the conducting scene and obtain a search warrant for a vehicle before case, search. As in the instant the in Stroud conducted a though warrantless the vehicle even the defendant search of defendant’s custody police. car control the Id. at was in and his was under the argu- Superior rejected the 1311. The Commonwealth's exigent ment of circumstances and concluded that the warra'ntless Id. at While the court stated search was unconstitutional. 1310-11. required that it was aware of the limited resources should the secured, guard interpreted to stand over a vehicle while a warrant is it compelling protecting case law as such actions in the interest of the privacy interests of the individual. I'd. at 1311. Although Judgment Opinion Announcing attempts limit 5. its case,” reality, unjustifiably “unique of the decision to the facts exigent expands scope circumstances. The result is an increase expense rights per- powers of enforcement at the of fundamental arid sonal freedoms. By affirming Superior expressing opinion Court while no as to safety” requirement analyzed by "public exception to the warrant Court, Superior Announcing Judgment part Opinion lets that precedent appellate the decision stand as at the intermediate level. Although safety public exception was an the lead states that the Commonwealth, theory Superior opin- "alternative” Court's danger actually large part ion was based on its conclusion justifying public created the warrantless search circumstances
798 A.2d Pennsylvania, Appellant, COMMONWEALTH Anthony PRINCE, Appellee.
Supreme Pennsylvania. Court of
Submitted March 2002. Decided June Marshall, Gervino, Lynn Grady for Common- Catherine Pennsylvania. wealth
Joseph Santaguida, Anthony C. Prince. ZAPPALA, CASTILLE, C.J., CAPPY, NIGRO,
Before NEWMAN, EAKIN, SAYLOR and JJ.
ORDER PER CURIAM. NOW, day
AND this 17th of June we GRANT Superior Commonwealth’s “Motion for Remand to Court for Stewart, Appellants' car. See 718- 1999). (Pa.Super. justified Appellants’ The Commonwealth the warrantless search of part by claiming Appellants may gun car in have thrown a out of and, protect public, the car needed determine gun. By responding proffer, Opinion local ion of the not to this Announcing Judgment allows the Commonwealth to have it both ways exigent gun might circumstances existed because the have been in gun might the car and circumstances exisled because the search, ordering have been in the car. Lieutenant McDevitt “public safety important testified that N.T., 3/10/98, was the most factor for me.” only thing at 264. He also testified that “[t]he prevented staying me [from with the vehicle while a search warrant my gun, was fear that someone would wander on if obtained] Thus, laying rendering today, it was the street.” Id. its decision testimony upon the lead fails to which address ihe the trial granting Appellants' suppression upon court relied in motion and Superior significant portion which the Court below based a of its opinion.