COMMONWEALTH of Pennsylvania, Appellee, v. Gloria RODRIGUEZ, Appellant.
Supreme Court of Pennsylvania.
Argued May 10, 1990. Decided Jan. 15, 1991.
585 A.2d 988
268
H. Stanley Rebert, Dist. Atty., Mark A. Bellavia, Deputy Dist. Atty., Christy H. Fawcett, Asst. Dist. Atty., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDEROTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
LARSEN, Justice.*
The matter presented to this Court is whether there was sufficient probable cause to search the automobile owned by appellant, Gloria Rodriguez, and if so, were the circumstances such that a search warrant was not needed.1
On November 15, 1985, police received information from two reliable informants that appellant and her husband would be coming into York, Pennsylvania, to sell cocaine. The police had been told that appellant and her husband could be driving any one of several vehicles, including a black Trans Am, a white Chevy, and two or three motorcycles. The informants had also told the police that when appellant and her husband came into the York area, they would distribute the cocaine very quickly. Appellant‘s hus
On November 23, 1985, police were again told by their informants that appellant and her husband were coming to York. The police sighted the aforementioned Ford Mustang that day in the City of York, but appellant and her husband were not observed.
On November 27, 1985, the informants told the police that appellant and her husband were coming into the York area. The police observed the aforementioned Ford Mustang traveling south on Interstate 83 at about noon that day, but they were unable to follow it, and they could not determine who was in the vehicle. The police surveilled various locations in York, but did not see the Mustang again until they proceeded to the Stephen Conn residence about forty-five minutes after first spotting the automobile. Forty minutes later, when appellant and her husband were seen driving away from the Conn residence, the police stopped the Mustang and conducted a preliminary search of the vehicle. Cocaine and a large amount of cash were found during the search. Appellant and her husband were then placed under arrest, and subsequent searches of the automobile and appellant uncovered more cocaine, heroin, cutting agents, a .38 caliber revolver, a notebook with drug transaction notations, and more cash.
The Court of Common Pleas of York County denied appellant‘s motion to suppress the evidence seized as a result of the warrantless search of her automobile, and, following a non-jury trial, appellant was convicted of possession of drugs with intent to deliver (
This Court has stated that:
While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the “diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.”
Commonwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346, 1349 (1985) (citations omitted).
Thus, where there is probable cause related to the vehicle or its occupants, and where the exigencies of the situation compel an immediate search of the vehicle, a warrantless search of an automobile does not offend the Fourth Amendment. Id. Appellant argues that the evidence seized as a result of the warrantless search of her automobile should have been suppressed as the police lacked probable cause to search the vehicle and as there was sufficient opportunity for the police to obtain a search warrant before searching her automobile.
In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Common-wealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). Applying that test to the within case, the veracity and basis of knowledge of those persons supplying hearsay information must be examined to determine whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Baker, supra, 513 Pa. at 26, 518 A.2d at 803.
The informants who provided the police with information regarding the illegal activities of appellant were multi-drug users, one of whom had previously supplied information to the police that had led to the issuance of four search warrants, the arrest of four persons, and the confiscation of large quantities of drugs. Each time the informants told police that appellant and her husband would be traveling to York to sell drugs, the police had observed them or their vehicle in York. On the date that police conducted the search in question, the appellant and her husband were seen entering appellant‘s automobile which was parked outside the residence of someone to whom appellant and her husband had sold drugs in the past, on a day specified by these reliable informants that appellant and her husband would be in York County selling drugs. Thus, under our “totality of the circumstances” test, there was probable cause for the police to search appellant‘s automobile.
With regard to appellant‘s claim that the police had sufficient opportunity to obtain a search warrant before conducting the search of her automobile, the police did not know until they saw appellant‘s Ford Mustang on a high
In addition, the police did not know exactly where in York, Pa., appellant and her husband would be going on November 27; thus, they did not know which magistrate would have jurisdiction to issue a search warrant.
The police also knew, on the basis of information supplied by informants, that appellant and her husband distributed cocaine “as rapidly as possible ... to get it out of their possession.” Notes of Testimony at 39 (Suppression Hearing, Feb. 25, 1986). The police stopped appellant‘s automobile immediately after they had ascertained that appellant and her husband were the occupants of the vehicle, and while the vehicle was moving away from the residence of one of appellant‘s known “customers.” Under these circumstances, there was no opportunity for the police to obtain a search warrant prior to searching the appellant‘s automobile. In Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988), this Court held that where police do not have advance knowledge that “a particular vehicle carrying evidence of crime would be parked in a particular locale, ... the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search [without a warrant] proper.” (emphasis added). Thus, we affirm the Superior
The Superior Court did not address the issue of the sufficiency of the evidence, finding that it had been waived by the failure of appellant to raise the issue in post-trial motions. Although the issue of the sufficiency of the evidence was not raised in appellant‘s post-trial motions, the issue of trial counsel‘s failure to raise the sufficiency of the evidence issue was raised in appellant‘s PCHA petition. Appellant, represented for the first time by new counsel, alleged in her PCHA petition that her trial counsel was ineffective for failing to raise the issue of the sufficiency of the evidence in appellant‘s motion for post-trial relief.
The PCHA court did not specifically address the issue of counsel‘s ineffectiveness for failure to raise the sufficiency of the evidence issue in appellant‘s post-trial motions. Rather, the PCHA court simply deferred consideration of the issue underlying the ineffectiveness claim, i.e., the sufficiency of the evidence issue, to the appellate courts, after reinstating appellant‘s right to appeal on the basis of trial counsel‘s ineffectiveness for failing to file a brief in the Superior Court.2 This deference is patently incorrect. See Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) (post-conviction hearing court, having determined that petitioner is entitled to pursue appeal, must not rule upon merits of remaining claims for relief unless the claims were not previously ruled upon by the trial
A search of the Rodriguez vehicle revealed approximately three ounces of cocaine and 77 glassine packets containing heroin. The heroin, when processed, would have a street value of about $1540. The three ounces of cocaine would have a street value of about $7200. During the search of the vehicle, the police also seized cutting agents, including: mannitol and lidocaine. Appellant had $2850 in cash on her person. Additionally, when police conducted the search of the Conn residence, the residence last visited by appellant and her husband, they discovered cocaine with an approximate street value of $2850. Cutting agents, scales, and packaging materials were also confiscated from the Conn residence. This evidence was clearly sufficient to prove that appellant possessed drugs with intent to deliver, and thus trial counsel was not ineffective for failing to raise this issue in post-trial motions.
Accordingly, the order of the Superior Court, affirming the judgment of sentence, is hereby affirmed.
FLAHERTY, J., files a dissenting opinion joined by NIX, C.J., and ZAPPALA, J.
FLAHERTY, Justice, dissenting.
I dissent. The vehicle search which yielded evidence leading to the conviction of the appellant, Gloria Rodriguez, was conducted under circumstances where a warrant could reasonably have been obtained. Inasmuch as this search was conducted without a warrant, suppression of the evidence is required.
On November 15, 1985, police were notified by two confidential informants that, later that same day, appellant and her husband would be driving to York, Pennsylvania to sell cocaine. The informants had, on previous occasions, told police that appellant and her husband were driving into the area to sell drugs. Police observed appellant‘s vehicle,
Between 10:00 a.m. and 10:30 a.m. on November 27, 1985, police were told by one of the informants that appellant would be driving into York to sell cocaine that day. The informant stated that appellant frequently drove different vehicles on drug-dealing trips to York, and that it was uncertain whether the same vehicle would be used that had been observed on previous occasions. The informant also stated that appellant always carried a firearm, and that appellant and her husband always made distributions of cocaine as rapidly as possible to minimize the time that they held cocaine in their possession. In response to this information, police set up a surveillance point along a highway leading into York. Shortly after noon, police observed appellant‘s vehicle travelling past the surveillance point. It was the same vehicle that had been observed on November 15 and 23. Police were unable to follow the vehicle, due to traffic conditions; hence a search for the vehicle was soon commenced. Around 1:45 p.m., police found the vehicle parked in front of the residence of Stephen Conn. At 2:00 p.m., appellant and her husband departed from the Conn residence in the vehicle. Within several minutes, and without having obtained a warrant, police stopped the vehicle and conducted a preliminary search. The search yielded cocaine and a large sum of money, $1,500.00. Appellant and her husband were placed under arrest. Police returned to the Conn residence and searched it.* Appellant‘s vehicle
Police testimony at the suppression hearing indicated that, although police believed they had probable cause to obtain a warrant upon learning from their informant that appellant would be entering the York area on November 27, 1985, a warrant was not obtained because there was uncertainty regarding the exact type of vehicle that appellant would be driving as well as uncertainty regarding the exact location where appellant‘s vehicle would ultimately be found. For example, one officer testified:
Q. So, you‘re telling the Court the reason you didn‘t get a search warrant was because you didn‘t know which vehicle they were driving?
A. Yes.
....
Q. You had no information this day that they were going to be at the Conn house?
A. Correct.
Q. You went there because someone had told you that they had dealt with him or he had dealt with them in the past, correct?
A. Correct.
Nevertheless, under the circumstances presented, police had ample grounds and sufficient opportunity to obtain a search warrant. Evidence obtained through the warrantless search should, therefore, be suppressed.
This Court has repeatedly addressed the question of whether, and under what circumstances, search warrants are required when vehicles are to be searched. Recently, in Commonwealth v. Ionata, 518 Pa. 472, 477, 544 A.2d 917, 919-20 (1988) (Opinion in Support of Affirmance), we stated:
The reliability of the informants in this case was clear. The informant who told police that appellant would be driving into York to sell drugs on November 27, 1985 had previously supplied information to police regarding appellant‘s trips to York. Police observations had confirmed the accuracy of this information. The other informant, who also supplied information about appellant‘s earlier drug-dealing trips to York, had on prior occasions provided accurate information to police in connection with other drug cases. This information had led to the issuance of four search warrants, the arrest of four persons, and the confiscation of large quantities of drugs. This informant was a multi-drug user who was very knowledgeable about drugs. Thus, prior to November 27, 1985, police had on multiple
The mere fact that police did not know whether appellant would be driving the same vehicle as was observed on earlier trips to York does not excuse the need for a warrant. Nor is it an excuse that police did not know the exact location, within the York vicinity, where appellant‘s vehicle would be found. A warrant could plainly have been issued to allow a search of whatever vehicle appellant might be driving into the York vicinity on November 27, 1985. The requirement that search warrants be particular in their description of the areas to be searched would not have been violated by such a description, for, under the circumstances, it would have been impossible to provide a more particular description. See
The facts pertaining to the search of appellant‘s vehicle simply do not provide a basis for finding any exigent circumstances that would have excused the need for a warrant. Indeed, upon receiving a tip from one of their informants, at least three and one-half hours before stopping appellant‘s vehicle, police had grounds for obtaining a warrant. During this three and one-half hour period, police observed nothing overtly suspicious or criminal in
Inasmuch as the warrantless search of appellant‘s vehicle was conducted under circumstances where a warrant could reasonably have been obtained, suppression of evidence obtained through the search was required. Appellant should be awarded a new trial.
NIX, C.J., and ZAPPALA, J., join in this dissenting opinion.
Notes
We also note that in regards to the whole question of whether the evidence is convincing overwhelmingly that this lower Court has already ruled on that issue through the suppression motion and through the decision of Judge McCullough in a nonjury trial, that this Court would not be in a position to overrule those decisions and if they are going to be overruled, that it should be the appellant [sic] courts that would overrule them, not the common pleas. We feel we do substantial justice in the case simply by restoring the appellant [sic] rights and giving the Defendant the right to pursue the suppression issue and the issue raised in this Post Conviction Appeal.
Opinion and Order of the Court at 3 (Mar. 7, 1988).