Lead Opinion
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Thе issue before the court is whether exigent circumstances excused the Commonwealth’s warrantless search of a vehicle, after the occupants had been removed from the vehicle and taken into police custody. I conclude that under the unique facts of this case, there existed a potential threat of deadly harm to the police, and thus, exigent circumstances that justified the Commonwealth’s failure to obtain a search warrant.
As resolution of this case is fact-driven, a detailed' recitation of the facts is necessary. On Saturday June 8, 1996, at approximately 3:00 a.m., Javon Jones and Bobby Mahalati were driving a GEO Tracker to Illusions, an after-hours club. At the same time, Appellant Perry was driving a white Lexus and Appellant Stewart was a passenger in the vehicle. Perry had stopped the Lexus at a green light on 7th Street which was around the corner from the club. Perry and Stewart were blocking a lane of traffic while the men
Perry positioned the Lexus on 8th Street so as to leave only enough room for a single vehicle to pass. Jones and Mahalati drove past the Lexus, passing it on the right. Jones and Mahalati observed that both Perry and Stewart were holding guns. Mahalati threw his seat back in an attempt to protect himself while Jones attempted to speed away. Shots rang out and Mahalati lost feeling in his legs.
Jones drove around the block in an effort to seek help. Jones flagged down Philadelphia Police Officer Tyrone Forrest, who was on duty outside of Illusions. Officer Forrest observed the bullet hole in the side of the Tracker and noted blood on the seat. After summoning an ambulance, Officer Forrest broadcasted an alert over police radio at 2:59 a.m., stating that a man had been shot and that his assailants were two black males who had driven southbound on 8th Street in a two-door white Lexus.
Officer John Barker received the police broadcast. Approximately one minute later, he observed Perry and Stewart in the white Lexus which was proceeding south on 8th Street. Barker requested back up and followed. Officer Barker and Sergeant Glenn Katz, who had joined in the pursuit, ultimately stopped the men near the intersection of 11th and Federal Streets. The Lexus was blocking one of two southbound lanes of 11th Street.
The officers directed Perry and Stewart out of the car. The officers did not request that Perry turn off the engine, and thus, the motor remained running. The police frisked the men as a safety precaution but no weapons were found on their persons. The police took Jones to the stopped vehicle in an attempt to identify the assailants. Jones arrived within fifteen minutes after Officer Forrest had reported the shooting over the radio.
■ Upon seeing Perry and Stewart, Jones immediately exclaimed, “that’s them and they have two guns.” At that point, Perry and Stewart were handcuffed and placed in police vehicles. Jonеs informed police that at least one of the guns appeared to be an “automatic” weapon. This information was relayed to Lieutenant Thomas McDevitt who had arrived on the scene. Determining that as a matter of public safety it was imperative for the guns to. be recovered, Lieutenant McDevitt requested that Officer Barker search the Lexus for the weapons.
Officer Barker returned to the vehicle and shined a flashlight into the passenger compartment. He noticed that the floor mat on the driver’s side was askew. Concerned that one of the guns may be lying beneath the mat, Officer Barker lifted the mat and uncovered a 9mm Helwan, loaded with six bullets. Officer Barker then searched under the passenger side floor mat and uncovered a .22 Beretta. Once
Perry and Stewart were held for trial for attempted murder, aggravated assault, criminal conspiracy, and related charges. On March 9, 1998, a joint suppression motion was filed in which Perry and Stewart claimed that the police had acted illegally in conducting a warrantless search of the Lexus and in seizing the guns. The court suppressed the weapons seized from the Lexus finding that the police were not permitted to search the vehicle without a search warrant. More specifically, the suppression judge noted that at the time the police entered the Lexus, both Perry and Stewart had been handcuffed and taken into police custody. Thus, no exigent circumstances were present which would justify the warrant-less search.
The Commonwealth appealed to the Superior Court, certifying that the suppression of the weapоns had substantially handicapped its prosecution of Perry and Stewart.
The issue before the court is whether exigent circumstances excused the warrantless search of the Lexus, thus rendering the search constitutionally reasonable.
As neither Perry nor Stewart contends that the search was violative of the Fourth Amendment to the United States Constitution, the starting point in resolving this issue is the Pennsylvania Constitution. Article I, Section 8 of the Pennsylvania Constitution sets the parameters of govermnental searches and seizures of the citizens of our Commonwealth, their homes, and their possessions:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Pa. Const., art. I, § 8. This court has consistently embraced the principle that Article I, Section 8 of the Pennsylvania Constitution requires that searches by the state be permitted only upon obtaining a warrant issued by the neutral and detached magistrate. Thus, as a general
However, this court has recognized a number of exceptions from this general warrant requirement.
The parties in this case have focused on this court’s opinion in White. Each party contends that White compels a ruling in their favor. Thus, an in-depth review of that case to determine its impact on this appeal is appropriate.
White involved a warrantless search of an automobile for drugs. In White, the police were informed that William White and another individual, Henry Bennett, had a large supply of cocaine and that they were expected to make a sale of the drugs on a particular date. Moreover, the police understood that the cocaine was being moved back and forth between White’s residence and Bennett’s residence. The police obtained a search warrant for Bennett’s residence, vehicle, and person and obtained a warrant for the search of White’s residence and person. However, the police failed to obtain a warrant for White’s vehicle. As fate would have it, White drove his vehicle into the stakeout area and an unidentified man entered White’s vehicle. As this was happening, Bennett also drove by and passed White’s car a number of times. Bennett then left the area and the police took White and his passenger into custody. Without obtaining a warrant for White’s automobile, the police then entered his vehicle and retrieved a bag containing cocaine as well as a marijuana cigarettq that was in plain view on the vehicle’s console. The suppression court suppressed the evidence. The Superior Court reversed.
On appeal, this court first reiterated the general rule that a warrant is required before the police may engage in the search of an automobile. The court then proceeded to discuss four exceptions to the warrant requirement. Three of the exceptions considered exigent circumstances and the fourth exception addressed a warrantless search for inventory purposes. ■ In discussing the first exception, the court addressed the timing aspects of vehicular searches.
[Pjolice may search a vehicle without a warrant where: (1) there is probablecause to believe that an automobile contains evidence of criminal activity; (2) unless the car is ' searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e., there are exigent circumstances.
Commonwealth v. White,
Thus, this type of exigent circumstances exception to the warrant requirement focuses on the potential for loss of contraband and concentrates on the ability of the Commonwealth to have obtained a warrant in advance of the search. In White, the court determined that the police had ample information that White’s automobile would be involved in criminal activity and that there were no unforeseen circumstances that would justify a warrantless search of the vehicle.
The court also spoke to a second type of exception dealing with an exigency that justifies a search in the absence of a warrant — a search incident to an arrest. The White court, citing Commonwealth v. Timko,
The White court also touched upon a third excuse to the warrant requirement dealing with another type of exigent circumstance. The court recognized the propriety of a warrantless search where there is potential danger to the police or to others, but where the harm does not lie at the direct hand of the defendant. As explained in White:
We do not propose to invalidate warrantless searches of vehicles where the police must search in order to avoid danger to themselves or others, as might occur in the case where police had reason to believe that explosives were present in the vehicle. Emergencies such as this, however, are not part of this case.
White,
Finally, the court addressed an exception to the warrant requirement for searches conducted for inventory purposes. The court, again citing to Timko, found that an inventory search is permissible, but only when the police demonstrate that the search was in fact conducted as a search for purposes of the protection of the owner’s property which remained in police custody, the protection of police against claims of lost or stolen property,
Although the parties discuss each of these exceptions, it is clear that only the third exception, that dealing with potential danger to the police or public, is truly implicated in this appeal. In the matter sub judice, it is uncontested that although the police did not have the opportunity to obtain a warrant prior to stopping Appellants, there was no danger of the automobile leaving with the contents therein. Furthermore, as Perry and Stewart were secured in a police cruiser prior to the time the search of the vehicle was conducted, a search of the vehicle incident to the arrest could not have been lawfully performed. Finally, it is plain that the search was part of a criminal investigation and not conducted as part of the inventorying of property. Thus, it is the potential danger to police or others, as discussed in footnote five of the White opinion, that is the proper focus in this appeal.
Turning to this limited exception, the Superior Court in this case gave two bases for finding exigent circumstances, public safety and police safety. As to concern for the public in general, the Superior Court credited the Commonwealth’s explanation that unless the guns were located in the car, the police would have to organize an immediate search of the entire route that the defendants had traveled while fleeing through the city in order to recover the weapons. Lieutenant McDevitt testified that police resources were low at that time and obtaining a search warrant at approximately 3:00 a.m. on a Saturday morning would have taken several hours. Lieutenant McDevitt opined that by that time, there could be children on the streets.
Alternatively, the Superior Court noted that Officer Barker testified that he would have searched the Lexus, even absent Lieutenant McDevitt’s direction to search the vehicle, out of concern for his safety and the safety of his fellow officers. Specifically, Officer Barker noted that the motor of the Lexus was still running when the men were in custody and that the vehicle was in the middle of one lane of 11th Street. This constituted an unsafe situation. Furthermore, in attempting to drive or to park the vehicle, an officer ran the risk of injury from a concealed weapon. The police believed from Jones’ statement that a 9mm “automatic” was allegedly used in the crime. Finally, Lieutenant McDevitt testified that such a weapon could “easily go off on the officer, if he hit a bump or stepped on it or kicked it by accident with his foot.” N.T. 3/10/98 at 261.
The Superior Court found that the Commonwealth had met its burden in demonstrating probable cause
Based upon the unique facts of the case, I too find that exigent circumstances existed to excuse obtaining a warrant to avoid danger to the police. White teaches that in an extreme situation in which there is a great potential for deadly harm, exigent circumstances may exist to justify a warrantless search of a vehicle. The contours of this exception should be defined so that when police are faced with a situation that they did not create, which necessitates that they enter an automobile, and they possess specific and articulable facts from which they reasonably believe that there exists a great potential for deadly harm, the police may conduct a limited search of the vehicle to ensure their safety.
Turning to the case sub judice, it is of critical import that the Lexus was in the middle of a lane of traffic with its engine running. This required the police to enter the vehicle to remove it from the right of way and to turn off the vehicle’s ignition. Moreover, the police possessed the specific knowledge that a shooting had occurred minutes before which resulted in serious injury. An eyewitness to the crime immediately identified the men in custody as the shooters. Furthermore, the witness stated that there were two weapons involved in the crime and that one of the guns was an automatic weapon. Appellants had been frisked and no weapons were discovered on their person, increasing the likelihood that the guns were in the Lexus. The uncontradicted testimony by the police established that the type of weapon alleged to have been used in the crime was fragile and could easily go off if bumped or stepped upon, posing an immediate threat to any officer who attempted to move the vehicle.
Thus, the police were faced with the necessity of entering the vehicle and were armed with specific and articulable facts that established a great potential for deadly harm to the police if the search of the automobile was not conducted. Finally, the police engaged in a search limited only to establishing the integrity of the passenger compartment of the vehicle. Indeed, after the weapons were discovered, no further search of the vehicle was conducted. Faced with all of these unique and extreme circumstances, considered in toto, it was not unreasonable for police to have searched the vehicle without a warrant.
The concurrence authored by Justice Castille takes issue with the analytical approach taken above as it relates to the Erst exception to the warrant requirement. It does so by attempting to paint this court’s majority decision in White as dicta, as a misapprehension and erroneous application of law, flawed by mischaracterization and incomplete quotation, and incredibly, as actually being “coterminous” with federal law. However, the reticular argument offered by the concurrence is more daring than convincing. The court’s decision in White stands as a declaration by our court affording our citizens broader protections under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment of the United States Constitution.
The concurrence by Justice Castille maintains that there is no indication that White’s approach was different under Article I, Section 8 than under the Fourth Amendment. This is not so. While perhaps not as precise as desired by the concurrence, White reveals a significantly different approach. Rather than engage in the mental gymnаstics necessary to reach the concurrence’s position, a more natural and comfortable reading of White is that it was merely an attempt to reconcile Pennsylvania law with certain aspects, of federal law, but to nevertheless establish independent state law regarding automobile searches.
After emphasizing the importance of the defendant’s state constitutional claims, the White majority discussed the exigent circumstances requirement in the context of federal and state law. While the majority cited to the quarter century old decision in Chambers v. Maroney,
This interpretation is bolstered by Justice Castille’s dissent in White which speaks volumes and would be nothing short of bizarre if White’s analysis were indeed coterminous with federal law. Specifically,
Any doubt about this fact vanishes when subsequent case law is considered. These cases consistently confirm that White sets the standard for analysis under Article I, Section 8, and this paradigm is not coterminous with federal law. See, e.g., Commonwealth v. Luv,
In fact, this court’s post-White decision in Commonwealth v. Luv,
In conclusion, far from being “coterminous” with federal law, White sets forth a straightforward approach that maintains the integrity of the warrant requirement and the privacy of our citizens, bowing only to limited exigencies, for example, when officers’ lives are at risk.
The order of the Superior Court is affirmed and the matter remanded for further proceedings.
Notes
. The Commonwealth may appeal a suppression order as a final order “when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps the prosecution.” Commonwealth v. Dugger,
. When reviewing the rulings of a suppression court, this court must determine whether the record supports that, court’s findings of fact and then determine whether the inferences and legal conclusions drawn from those facts are reasonable. Commonwealth v. Hall,
. For example, police do not need a warrant where the subject of the search gives his or her consent to be searched. Commonwealth v. Abdul-Salaam,
. While Pennsylvania law requires both a showing of probable cause and exigent circumstances, federal law requires less and does not offer the same protection under the United States Constitution. Maryland v. Dyson, 527 U.S. 465,
. This warrant exception regarding police safety finds further support in Timko in which this court suggested that a warrantless search would be justified if police were confronted with "explosives or some other item which might in some way endanger the police officers or others. ...” Timko,
. The parties do not seriously contest that the officers had probable causе to believe that the Lexus contained evidence regarding the shooting. Thus, this appeal turns on the issue of whether exigent circumstances were present which justified the warrantless search.
. I note that this court should not assume or accept that all 9mm automatic weapons are sensitive. However, for purposes of review in . this appeal the court must accept the uncontradicted testimony of the Commonwealth. In re DM.,
. As I would find that the warrantless search was excused due to the exigency of consideration of police safety, it is not necessary to address the Superior Court’s alternative holding that public safety created a separate exigency that justified the warrantless search. I express no opinion as to the merits of this alternative theory. ■
. The concurrence first claims that the court's discussion in White regarding the first type of exigent circumstances is dicta and is not precedent for the proposition that this court follows an Article I, Section 8 approach to automobile searches that is distinct and different from the approach under the Fourth Amendment. In the concurrence's expansive view of dicta as applied to White, and carried to its logical conclusion, the only statement in an appellate opinion strictly necessary to the decision of the case is the order of the court. Of course, such a parsimonious interpretation of what is “necessary” to a decision is jurisprudentially unsound. Yet, it is what the concurrence suggests in its ultra-broad view of dicta. Such an interpretation is inconsistent with the established role of supreme courts. Courts frequently construct tests that act as an interpretation of the law.
The case in White arose under Article I, Section 8. The “automobile exception” issue was certainly necessary to the disposition of the aрpeal. Moreover, as the issue was resolved in a manner inconsistent with federal law, it was necessarily distinct from such law. Finally, it is anomalous for the concurrence to suddenly assert that the court's discussion of the automobile exception in White is dicta, when in his dissent in White, Justice Castille voiced no such concern, but maintained instead that the discussion regarding a search incident to an arrest was dicta. White,
. This is a critical aspect that distinguishes Luv from the case sub judice where the defendants were arrested and in police custody prior to the search and there was no possibility that the evidence would be lost prior to obtaining a warrant.
Concurrence Opinion
concurring.
I concur in the result reached in the lead opinion. If an exigency were required to search an automobile where there exists probable cause beyond (1) the inherent exigency presented by the mobility of the vehicle (the traditional exigency that permits a warrantless vehicle search under the Fourth Amendment), and (2) the lack of an opportunity for police to secure a search warrant before probable cause to search the vehicle arose unexpectedly (an additional exigency uniquely required by Pennsylvania caselaw), then I would certainly agree with Mr. Justice Cappy’s lead opinion that the danger to police here justified this particular search. However, I write separately because I do not believe that this Court’s existing jurisprudence requires, nor do I think that our jurisprudence should require, any exigency beyond the mobility of a vehicle and the unexpected development of probable cause. Accordingly, I respectfully disagree with the analytical approach employed by the lead opinion. I also write separately because I believe our jurisprudence in this important area has lacked precision and I hope that an exploration of that jurisprudence might provide some guidance in future cases involving automobile searches.
I am on record elsewhere as indicating my belief that the parameters of the automobile exception should be the same under Article I, Section 8 of the Pennsylvania Constitution as under the Fourth Amendment. See Commonwealth v. Luv, 557 Pa. 570,
Since my disagreement with the lead opinion concerns the precedential value of White, it is perhaps best to begin with a discussion of stare decisis. “The rulé of stare decisis declares that for the sake of certainty, a conclusion reached in one case should. be applied to those which follow,, if the facts are substantially the same, even though the parties may be different.” Commonwealth v. Tilghman,
The doctrine of stare decisis was never intended to be used as a principle to perpetuate erroneous principles of law. While we fully ascribe to Lord Coke’s evaluation of the importance of certainty in the law, this end obviously cannot outweigh the necessity of maintaining the purity of the law. The court’s function is to interpret legislative enactments and not to promulgate them. Where, as here, by our decisions ..., the Court distorted the clear intention of the legislative enactment and by that erroneous interpretation permitted the policy of that legislation to be effectively frustrated, we now have no alternative but to rectify our earlier pronouncements and may not blindly adhere to the past rulings out of a deference to antiquity.
Mayhugh v. Coon,
After carefully reviewing this Court’s jurisprudence in this area, and giving due respect to stare decisis, it is my considered view that this Court’s state constitutional precedent is not nearly so hostile to reasonable searches of automobiles as suggested by the lead opinion’s approach, which is adopted from language in White
The lead opinion’s principal focus is upon White.
The lead opinion states that Pennsylvania constitutional law requires “both a showing of probable cause and exigent circumstances” to conduct a warrantless search of an automobile, while the Fourth Amendment, of course, has long required only a showing of probable cause. Op. at 700 & n. 4. See Maryland v. Dyson,
This Court’s requirement of an exigency beyond the mobility of the vehicle proved to be erroneous as a Fourth Amendment matter. The U.S. Supreme Court made this abundantly clear by summarily reversing Kilgore I and Labron I. See Pennsylvania v. Labron,
The case which first purported to convert what had been this Court’s coterminous approach to the automobile exception into a separate and more exacting state constitutional command under Article I, Section 8 was the very brief Opinion Announcing the Judgment of the Court in Commonwealth v. Labron,
[had] discussed the automobile exception and noted that, “this [C]ourt, 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.”
Id., quoting Commonwealth v. White,
The Labron II plurality’s non-binding characterization of both Labron I and White, however, was erroneous. First, there is no indication in the opinion in Labron I that the constitutional approach followed there (“this Commonwealth’s jurisprudence”) was any different under the Pennsylvania Constitution than under the Fourth Amendment. Labron I never cited, quoted, or relied upon the “different [state constitutional] balance” language in the White opinion in explicating the automobile exception. Indeed, Labron I embraced the same coterminous approach, reliant exclusively upon Fourth Amendment cases for substantive precedent, that all of our cases had employed to that point. Second, in point of fact, Labron I could not have accurately cited White for the proposition attributed to White by the Labron II plurality opinion, i.e., that this Court “has struck a different balance” under Article I, Section 8 with respect to the automobile exception. The White Court never said any such thing.
The “different [state constitutional] balance” discussion in White, which was quoted by the Labron II plurality, did not involve the automobile exception to the warrant requirement, but rather the search incident to arrest exception. See also Commonwealth v. Luv,
In short, although the automobile exception claim in White was raised only under Article I, Section 8 and therefore resulted' in an Article I, Section 8 holding, nothing in White remotely suggested that the Pennsylvania Constitution commanded a fundamentally different approach to the automobile exception than is employed under
The reliance upon White in the instant matter is even more dubious because the lead opinion relies upon parts of White that were not necessary to the deсision. To compound matters, this dicta is extremely problematic in its own right. The White opinion sets forth what the lead opinion here describes as the state constitutional test for the “first” exigent circumstances exception to the warrant requirement as follows:
In sum, the general rule is that a search warrant is required before police may conduct any search. As an exception to this rule, police may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and [the] contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, ie., there are exigent circumstances.
Since the White Court’s articulation of this “required element” was not even a part of the actual holding of the case, much less essential to the holding, it was dicta under any rational approach to precedent. See Hunsberger v. Bender,
The present case, with respect to the “automobile exception,” is analytically identical to Ionata. In both cases the police had ample advance information concerning the fact that a search of an automobile would likely be involved in apprehending the suspect. When that is true, a warrant is required before the automobile may be searched. As the United States Supreme Court stated in Chambers v. Maroney:
Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without extra protection for privacy that a warrant affords. But the circumstances that jumish probable cause to search a particular auto for particular articles are most often unforeseeable....
399 U.S. at 51 ,90 S.Ct. at 1980-81 ,26 L.Ed.2d at 428 . (Emphasis added.) In other words, although the Fourth Amendment generally requires probable cause to be determined and a warrant to be issued by a magistrate before a search may be conducted, unforeseen circumstances involving the search of an automobile coupled with the presence of probable cause, may excuse the requirement for a search warrant. In Ionata and in this case, there were no unforeseen circumstances. Police knew in advance what automobiles might be involved and could have requested warrants for the search of the automobiles, just as they did for persons and dwellings. Superior Court was in error, therefore in determining that the search was permissible under the “automobile exception” and that exigent circumstances existed to justify the search.
The lead opinion dismisses this reading of White as representing a “[cjasual and convenient application of the dicta label.” Op. at 704, n. 9. This is not so. The lead opinion’s interpretation does not draw any distinction between mere “discussions” in opinions and constitutional “holdings.” It is steadfast in this regard even when the “discussion” is distressingly problematical.
The lead opinion’s reliance upon the White dicta is problematic for a further reason. Far from establishing a separate state constitutional search and seizure construct, the White dicta setting forth the lead opinion’s so-called “first” exigent circumstances exception, like the White holding, was “summarizing” the White Court’s understanding of Fourth Amendment law. White,
More importantly, White’s characterization of Chambers/Carroll was mistaken. The White characterization overlooked the very next paragraph in the Chambers opinion, which reads as follows:
Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other-hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
Furthermore, White’s misapprehension of federal law in this regard stands in contrast to this Court’s prior decisions in Baker and Milyak. In both of those cases, this Court recognized Chambers instruction that an alternative to an immediate car search is to immobilize the vehicle until a warrant is secured but that, since immobilization is not necessarily less intrusive than an immediate search, an immediate search, rather than immobilization, is constitutionally proper. Commonwealth v. Baker,
The lead opinion suggests that this concurrence is contrary to a “declaration by our court [in White] affording our citizens broader protections under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment of the United States Constitution.” The lead opinion asserts that this “declaration” is “binding precedent.” Op. at 703-04. In point of fact, as demonstrated above, White contains no such declaration with respect to the automobile exception. Moreover, the fact that this Court has held that Article I, Section 8 affords broader protections than the Fourth Amendment in some contexts does not mean that it automatically requires different and greater protections in all contexts. As this Court noted in Commonwealth v. Glass,
the fact that this Court has “accorded greater protections to the citizens of this state under Article I, § 8 of our constitution, under certain circumstances,” [Commonwealth v.] Cleckley, ... 738 A.2d [427,] 431 [ (Pa.1999) ], does not command a reflexive finding in favor of any new right or interpretation asserted. To the contrary, we should apply the prevailing standard “where our own independent state analysis does not suggest a distinct standard.” Id.,738 A.2d at 431-32 (collecting cases); Commonwealth v. Edmunds, ...586 A.2d 887 , 894 ([Pa.] 1991).
Accord In re D.M.,
More fundamentally, White only “binds” this Court with respect to propositions which were actually at issue, and actually decided, in the case. Broad but non-essential “declarations” are not precedent; ultimately, their inherent wisdom and persuasiveness determine whether they will play any role in future decisions. See Commonwealth v. Blouse,
Notwithstanding the inescapable constitutional and jurisprudential difficulties inherent in the approach in the White dicta, the lead opinion proffers what it calls a “comfortable” reading of White that would accord its dicta constitutional status as a “construct” “created ... to interpret” Article I, Section 8, which did not misinterpret or disregard federal law, but instead “merely ... attempted] to reconcile Pennsylvania law with certain aspects of federal law, but to nevertheless establish independent state law regarding automobile searches.” Op. at 704. This view might be plausible if there were some indication in the White opinion that the Court there perceived a difference between federal and state law with respect to the automobile exception and applied the distinction to resolve the matter. But there is no such indication — at all. Viewing White in this fashion requires the doctor to kill the patient to save him.
More importantly, such a revisionist interpretation of White as an explicit and harmonious expression of Pennsylvania constitutional principle, consciously offered up as a different approach to what then prevailed under the Fourth Amendment, is implausible in the extreme in light of this Court’s decisions in Kilgore I and Labron I. White was decided on the very same day as Labron I, i.e., December 29,1995. Labron I discussed White at great length, quoted from it, and explicitly applied it. Kilgore I was decided three days earlier, on December 26, 1995, although it appears much later in the Atlantic Second Reporter (volume 677, as opposed to volume 669), and it makes reference to, and quotes from, the subsequently — decided Labron I. After Kilgore I and Labron I were reversed and remanded by the U.S. Supreme Court, this Court, in separate plurality opinions, “reaffirmed” Labron I on state constitutional grounds, Labron II,
Thus, these three contemporaneous decisions covered the spectrum of available automobile exception constitutional challenges: White sounded under the Pennsylvania Constitution alone; Kilgore involved a federal constitutional claim only; and Labron was a case where the claim apparently was raised under both charters. What is notable for present purposes is that there is no suggestion in the inter-related 1995 decisions themselves that the constitutional approach differed depending upon whether the claim was state — only
Significantly, the U.S. Supreme Court, which had occasion to review this Court’s automobile exception jurisprudence immediately after the three cases were decided, certainly did hot share the lead opinion’s interpretation of White’s approach as a “reconciliation” of a recognized divergence in state and federal law. In its per curiam decision reversing Kilgore I and Labron I, the high Court addressed an argument, made by Labron, that this Court’s opinions were dеcided on adequate and independent state grounds — i.e., Article I, Section 8. The Court rejected that claim with the following observations, which include a recognition of White:
Respondent Labron claims we have no jurisdiction to review the judgment in his case because the Pennsylvania Supreme Court’s opinion rests on an adequate and independent state ground, viz., “this Commonwealth’s jurisprudence of the automobile exception.” [Labron /,] ...669 A.2d, at 924 . We disagree. The language we have quoted is not a “plain statement” sufficient to tell us “the federal cases [were] being used only for the purpose of guidance, and did not themselves compel the result that the court ha[d] reached.” Michigan v. Long,463 U.S. 1032 , 1041,103 S.Ct. 3469 ,77 L.Ed.2d 1201 ... (1983). The Pennsylvania Supreme Court did discuss several of its own decisions; as it noted, however, some of those cases relied on an analysis of our cases on the automobile exception, see, e.g., [Labron I,] ...669 A.2d, at 921 (observing Commonwealth v. Holzer, ...480 Pa. 93 ,389 A.2d 101 , 106 ([Pa.] 1978), cited Coolidge v. New Hampshire,403 U.S. 443 ,91 S.Ct. 2022 ,29 L.Ed.2d 564 ... (1971)); [Labron I,] ...669 A.2d, at 924 (stating Commonwealth v. White, supra, rested in part upon the Pennsylvania Supreme Court’s analysis of Chambers v. Maroney,399 U.S. 42 ,90 S.Ct. 1975 ,26 L.Ed.2d 419 ... (1970)). The law of the Commonwealth thus appears to us “interwoven with the federal law, and ... the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long,463 U.S., at 1040 1041,103 S.Ct. 3469 ----Our jurisdiction in Labron’s case is secure. Ibid. The opinion in respondent Kilgore’s case, meanwhile, rests on an explicit conclusion that the officers’ conduct violated the Fourth Amendment; we have jurisdiction to review this judgment as well.
Apparently, then, I am not alone in the view that “this Commonwealth’s jurisprudence of the automobile exception” at the time White, Labron, and Kilgore were decided-jurisprudence which held that an exigency beyond the mobility of a vehicle must be present to excuse the warrant requirement— was not independently based in distinct state constitutional principles. No doubt the lead opinion would deem the U.S. Supreme Court’s view of our jurisprudence, including White, as no less “incredible” than my own. I respectfully submit, however, that it does not require “reticular argument” or “mental gymnastics,” op. at 703, 704, to see the patent, severe flaws in the White dicta, and the lack of any foundation in state constitutional principle. It merely requires judicial rig- or: i.e., a willingness to confront openly the fatal flaws in the “authority” at issue.
The dicta in White upon which the lead opinion relies is multiply and fundamentally
Rather than attempt to squeeze this case into the analytical construct set forth in the White dicta, I would proceed to decide it in light of our actual experience with the automobile exception. For purposes of disposing of this appeal, I shall assume that, if this Court ever actually examined the issue as a state constitutional matter, a majority of Justices would hold that the exigency requirement that characterized our coextensive Fourth Amendment/Article I, Section 8 automobile exception jurisprudence until the reversal in Pennsylvania v. Labron,
This Court has approved warrantless vehicle searches so long as: (1) police had probable cаuse, and (2) the probable cause arose unexpectedly, ie., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose. There was never any separate and additional requirement that the vehicle was unlikely ever to be found again for the exigency to exist. The actual holding in White obviously fits this construct — as do numerous cases decided before or contemporaneously with White.
For example, in Baker, the police received a tip from a reliable informant that the defendant had waved a gun at an unknown individual in an alley. The informant stated that the defendant was driving an old, dilapidated red convertible with the top down. Police soon located the car with the defendant in it and set up surveillance. After approximately twenty to thirty minutes, the police approached, the defendant exited the car and, subsequently, the police searched the vehicle. In a unanimous opinion, this Court upheld the warrantless vehicle search, reasoning as follows:
[C]ertain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present.... This is not a case where police knew hours in advance that a particular vehicle carrying evidence of crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather the instant search was conducted when police stopped a moving vehicle just thirty minutes after a reported crimе. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper.
Commonwealth v. Baker,
Baker was recently cited approvingly in Commonwealth v. Luv,
Moreover, Baker’s approach has been embraced in numerous other cases decided by this Court. In those cases, whether the police had previous information that a particular vehicle would be involved in the commission of a crime has been the decisive factor in determining whether exigent circumstances justified a warrantless automobile search. See Commonwealth v. Labron,
In the case sub judice, there unquestionably was probable cause to search the white Lexus for the firearms that appellants had firеd from that very car at the victims only a short time before. The probable cause arose on the street, in the middle of the night, unexpectedly, and only after a shooting,. about which police could not, and did not, have prior knowledge. Since the police had probable cause, and there was no prior opportunity to secure a warrant, the warrantless search here plainly was justified by exigent circumstances and was proper under our prior
I realize that there is some discomfort in confronting and acknowledging flaws in prior cases, even when the mistake may be inadvertent and occurred in mere dicta. But a reasoned and responsible jurisprudence cannot simply turn a blind eye to the mistake. See The Birth Center v. St. Paul Companies, Inc.,
The super-exigent circumstances construct that the lead opinion poses as settled state constitutional law is taken from fundamentally flawed dicta in a case that construed Fourth Amendment law, dicta which did not purport to be discovering and announcing some distinct requirement of Article I, Section 8. Although I concur in the ultimate judgment, for the reasons I have set forth above, I respectfully disagree with the lead opinion’s analytical approach.
. While * Mayhugh spoke of legislative enactments, the principle it restates is, of course, no less applicable to constitutional provisions.
. The lead opinion explains its focus upon White by stating that White is the case the parties "have focused on,” each claiming that it compels a favorable ruling. In point of fact, the Commonwealth’s primary argument is that this case is controlled by Baker, Rodriguez, and Luv. See Brief for Appellee at 16-18, 20-22. The Commonwealth then argues— correctly as my analysis below will make clear — that the holding in White (as opposed to the dicta the lead opinion elevates) is consistent with Baker. See id. at 18-19.
. Although the appellant in White apparently invoked only Article I, Section 8, the Court’s automobile exception analysis nevertheless endorsed and followed the same coterminous approach followed in all of our cases, relying heavily upon Fourth Amendment authority.
. It is not unusual for a higher court to ultimately disapprove of a line of authority that a lower court has developed in the daily task of construing the higher court’s governing precedent. See, e.g., Sphere Drake Ins. Co. v. Philadelphia Gas Works,
. My dissenting opinion in White responded to the White majority's actual holding on the question of the automobile exception — a holding that never even purported to be promulgating a view of Article I, Section 8 that was different and distinct from the Fourth Amendment. The White dissent then argued for a rule that would not require even the added exigency of probable cause arising unexpectedly which had crept largely unnoticed (or certainly unacknowledged) into this Court’s automobile exception cases such as Baker and Rodriguez. That rule, of course, is the rule that the U.S. Supreme Court subsequently applied when it reversed Kilgore I and Labron I. The issue is entirely different in this case because the lead opinion now seeks to promulgate the suspect White dicta as state constitutional doctrine, and its decision in this regard is essential to its analysis.
. I also would not adopt the erroneous dicta in White because this radical, novel construct was not arrived at through an actual state constitutional analysis. In Commonwealth v. Edmunds, 526 Pa. 374,
. The lead opinion relies upon Luv as corroboration of its view that White deliberately set forth a distinct Pennsylvania constitutional test governing automobile exception cases. The decision in Luv never mentions Article I, Section 8 or the Fourth Amendment. Moreover, although the decision indeed cites and follows White, it also cites and follows Baker — which pre-dated the alleged state constitutional "declaration” in White and was not decided under Article I, Section 8— without ever suggesting that different tests were at issue in the two cases. The most that can be said about Luv is that the basis for the decision is unclear; it certainly adds little to the validity of the dicta in White. The lead opinion also deems Luv significant because police in that case were faced with a circumstance where, if they did not immediately stop and search the vehicle, Luv would have continued on his way, which may have resulted in the disappearance of the evidence. Luv,
. The basis for the preference in our piior cases that there has been no previous opportunity to obtain a warrant is understandable: i.e., it guards against pretextual automobile stops. But I see no value, constitutiоnal or otherwise, that is served by an ad hoc requirement that there also be a showing that "unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police.”
Concurrence Opinion
concurring.
I agree with Mr. Justice Castille that the scope of protection afforded by Article I, Section 8 of the Pennsylvania Constitution in the arena of automobile searches is a matter less settled than the majority opinion. portrays.
It is preferable, in my view, to consider the term exigent circumstances as “purposely imprecise,” State v. Cooke,
Here, the police did not receive information concerning the shooting sufficiently in advance to secure a warrant, the vehicle was situated in the middle of the street and running, and given the concern for locating loaded firearms before moving the vehicle or ordering a search of the surrounding area, it was not reasonably practicable to obtain a warrant. More important, the scope of the search was limited to the exigency justifying its instigation, namely, the seizure of the loaded firearms. See generally Commonwealth v. Zhahir,
. I believe that a portion of the uncertainty embodied in this Court’s prior decisional law is due to fundamental changes in Fourth Amend- • ment jurisprudence effectuated by the United States Supreme Court. See infra note 3.
. Certainly, as reflected in Justice Castille’s concurring opinion, the Court has employed language in some instances that would support his considered view in this regard.
. Notably, this standard parallels the language employed by the United States Supreme Court in the formative stages of the automobile exception. See Carroll v. United States,
Dissenting Opinion
dissenting.
I disagree with the conclusion of the Opinion Announcing the Judgment of the Court (“Opinion Announcing the Judgment”) that exigent circumstances excused the Commonwealth’s warrantless search of the car in the instant case. Here, despite the fact that Appellants had already been removed from the car and taken into police custody before the search occurred, the lead opinion nonetheless finds that the circumstances surrounding the arrest of Appellants created such an exigency as to justify an immediate warrantless search of the car. I cannot agree and therefore, respectfully dissent.
I believe that the interpretation of Article I, Section 8 of the Pennsylvania Constitution that the lead opinion proffers today differs from the settled jurisprudence of this Commonwealth. Article I, Section 8 generally prohibits the police from searching a person or his property and seizing
Under federal law, a search of a vehicle is not unreasonable if it is based on probable cause, even though a warrant has not been actually obtained. See Maryland v. Dyson,
Accordingly, the jurisprudence of this Commonwealth requires both the existence of probable cause and the presence of exigent circumstances to justify a warrantless search of a vehicle. See Commonwealth v. Luv,
In concluding that exigent circumstances excused the warrantless search of Appellants’ car in the instant case, the Opinion Announcing the Judgment relies upon a footnote in this Court’s decision in Commonwealth v. White,
We do not propose to invalidate warrantless searches of vehicles where ,the police must search in order to avoid danger to themselves or others, as might occur in the case where police had reason to believe that explosives were present in the vehicle. Emergencies such as this, however, are not part of this case.
Id. at 902 n. 5 (emphasis added). In contrast to the Opinion Announcing the Judgment, I do not believe that this single footnote in White supplies the basis for a separate and distinct exception to the warrant requirement. Instead, in my view, this footnote merely recognizes that danger to police or others might, under certain circumstances, create a situation in which the police will be unable to effectuate a search for which probable cause exists unless they act immediately and without seeking prior judicial approval.
It is clear to me, however, that such a situation simply did not exist in the instant case. Here, at the time of the search, Appellants were already in custody and the car was alreаdy under the control of the police. Given these circumstances, the police clearly could have secured the scene and waited with the car while a search warrant was obtained.
In concluding otherwise, the Opinion Announcing the Judgment states that it was critical that the car was in the middle of a lane of traffic with its engine running. According to the lead opinion, the police were “required” to remove the car from the right of way and to turn off the car’s engine. I disagree. First, the record reveals that the car was stopped on a four-lane road, with two lanes running in each direction plus angle parking on both sides of the street. N.T., 3/10/98, at 265. The car was stopped in the right hand lane of southbound traffic, leaving three lanes open to traffic. N.T., 3/10/98, at 204-06, 265. Clearly, the car was not totally obstructing traffic, especially in the early morning hours on a Sunday.
I also disagree with the lead opinion’s conclusion that the possible presence of a weapon in Appellants’ car posed a threat tо any officer who attempted to move the car. In my view, the reasoning of the Opinion Announcing the Judgment .is faulty for two reasons. First, the only basis for the leading opinion’s conclusion that the police were in danger was the bald assertion by Lieutenant McDevitt that one of the weapons alleged to have been used in the shooting, a 9mm automatic handgun, was fragile and could easily go off if bumped or stepped on. N.T., 3/10/98, at 257, 261. Lieutenant McDevitt was not qualified as a firearms expert and there was absolutely no evidence to support his assertion that the gun could somehow discharge on its own. Second, police officers may not create exigent circumstances, which they then use as justification for failing to follow the warrant requirement. See Commonwealth v. Melendez,
The Opinion Announcing the Judgment further justifies the warrantless search by explaining that the police engaged in a search limited solely to establishing the safety of the passenger compartment of Appellants’ car. According to the testimony of the police, two police officers simultaneously searched the floor on both the driver and passenger sides of the vehicle after observing that the driver’s side floor mat was “askew.” N.T., 8/10/98, at 212-13. However, if the safety of the officer moving the car was a basis for exigent cirсumstances, I fail to see why the passenger side of the vehicle was part of this exigency. Under the lead opinion’s reasoning, Appellants’ entire car would have been subject to a warrantless search because a weapon or other device contained anywhere in the car could have potentially injured an officer moving the car. In effect,
By its decision today, the Opinion Announcing the Judgment has authorized warrantless searches based merely on the potential for danger to the police, and in doing so, essentially abandons the requirement of exigency. The lead opinion has, in effect, created an exception that swallows the rule. Although truly exigent circumstances demand immediate action, there was, as noted above, no exigency in the instant case and therefore, no need for an immediate search of Appellants’ car. Common sense dictates that the police would have been in no greater danger had they simply secured the scene and procured a warrant before searching the car.
At the same time, by upholding the warrantless search of Appellants’ car, the Opinion Announcing the Judgment allows police virtually unfettered discretion to invoke the mantra of “police danger” as a pretext to searching vehicles without a warrant. There can be no question that the police officers of this Commonwealth often face dangerous situations. However, bestowing police with unfettered discretion to conduct warrantless searches upon the mere assertion of danger simply does not reconcile with either the protections afforded by our state constitution or this Court’s precedent.
. Appellants do not contest that the police had probable cause to believe that the car contained evidence regarding the shooting. Thus, it appears that the police would have been able to legally secure the evidence they sought if they had simply followed the warrant requirement. However, as even the police acknowledge, they did not even attempt to secure a warrant before searching the car. N.T., 3/10/98, at 234-36, 263-64. In fact, Lieutenant McDevitt testified that he never even considered obtaining a warrant. N.T., 3/10/98, at 264. As the trial court noted at the suppression hearing, there are magistrates and emergency judges on duty twenty-four hours a day for the express purpose of issuing warrants. N.T., 3/11/98, at 333. Thus, secttring the car and waiting while a neutral magistrate considered a request for a search warrant was a reasonable, and constitutional, alternative to an immediate warrantless search of the car.
. Moreover, one would think that proper police procedure would mandate leaving the arrest scene as undisturbed as possible in order to properly collect evidence. The preservation of evidence would seem to be particularly important in a case such as this, where Appellants were alleged to have discharged their weapons from inside of the car.
. In Commonwealth v. Gelineau,
. In Commonwealth v. Stroud,
. Although the Opinion Announcing the Judgment attempts to limit its decision to the “unique facts of the case,” in reality, it unjustifiably expands the scope of exigent circumstances. The result is an increase of enforcement powers at the expense of fundamental rights arid personal freedoms.
. By affirming the Superior Court while expressing no opinion as to the "public safety” exception to the warrant requirement as analyzed by the Superior Court, the Opinion Announcing the Judgment lets that part of the decision stand as precedent at the intermediate appellate level. Although the lead opinion states that the public safety exception was an "alternative” theory of the Commonwealth, the Superior Court's opinion was actually based in large part on its conclusion that danger to the public created exigent circumstances justifying the warrantless search of Appellants' car. See Commonwealth v. Stewart,
The Commonwealth justified the warrantless search of Appellants’ car in part by claiming that Appellants may have thrown a gun out of the car and, to protect the public, the police needed to determine the local ion of the gun. By not responding to this proffer, the Opinion Announcing the Judgment allows the Commonwealth to have it both ways exigent circumstances existed because the gun might have been in the car and exigent circumstances exisled because the gun might not have been in the car. In ordering the search, Lieutenant McDevitt testified that “public safety was the most important factor for me.” N.T., 3/10/98, at 264. He also testified that “[t]he only thing that prevented me [from staying with the vehicle while a search warrant was obtained] was my fear that someone would wander on that gun, if it was laying in the street.” Id. Thus, in rendering its decision today, the lead opinion fails to address ihe testimony upon which the trial court relied in granting Appellants' suppression motion and upon which the Superior Court below based a significant portion of its opinion.