*1 money subject case, Lagana obtained undisputed it is policy. an insurance obligation purchase legal to a known own, as his money with the Lagana clearly dealt Additionally, possibly of his business and the funds with those commingling opera his business money to finance some or all using As we Lagana’s at issue is intent. again, tions. what is Once possible misrepresentations find the evidence of supra, did to return failure Township Supervisors Lagana’s other to make out until ordered to do so sufficient money of criminal intent. prima facie case in granting Laga- court erred hearing conclude that the We that we corpus. emphasize We na’s for writ of habeas petition or innocence. We Lagana’s guilt as to judgment make no sufficient evi- presented that the Commonwealth merely hold of the crimes prima case for each dence to make out facie charged. proceedings for consistent reversed. Case remanded
Order
relinquished.
Jurisdiction
opinion.
with this
Filed Sept. Reargument Denied *3 Weiner, Com., Atty., Philadelphia, ap- Asst. Dist. for Joan pellant. Defender, Lev, for Philadelphia, appel-
Stuart Asst. Public lee. HOFFMAN, WIEAND, OLSZEWSKI and JJ.
Before: OLSZEWSKI, Judge: order, entered the Phila- appeals
The Commonwealth County Pleas, delphia suppressing Court of Common evidence drug by seized Commonwealth Parole Officer illegal activity from trunk Henry belonging Joseph Donna an automobile but us answer three distinct Rosenfelt. This case asks (1) If has probable officer questions: parole interrelated of the car trunk of cause, she warrantless search can conduct a activi- of criminal suspected for evidence parolee’s automobile (2) proba- Did officer have parole contraband? ty and/or such a search car trunk? Is ble cause search the 8 of the under Article permissible Constitution? arrest, on parole
At his for the time of Rosenfelt regularly he On November attended robbery. Henry, parole Henry with his officer. scheduled interview license, driving without a which knew that Rosenfelt had been Henry at 45. When parole is a violation. N.T. 9/20/93 situation, replied if this he asked Rosenfelt he had remedied Id. at 10. day. care of it the next that he would take had himself to the suspecting that Rosenfelt driven Henry, out investigate following Rosenfelt meeting, decided to when he left the interview. Id. at 45. She building Thunderbird, behind got watched as Rosenfelt entered red Id. at wheel, 12, 45. Along with Parole away. and drove Healey, Henry followed Rosenfelt Barringer Officers light, at a red stopped When Rosenfelt another vehicle. into of their car and took Rosenfelt jumped officers out parole 45-46. custody. to the office the officers’ parole
Rosenfelt was taken back Id. vehicle, drove the Thunderbird. Barringer while car, view, noticed driving, Barringer plain inside While bill, with following: fifty-dollar spoons two four-inch *4 them, syringe, a and a box of white residue on powder Id. at 15, bag. paper a brown sugar wrapped confectioner’s Henry, discovery his who then Barringer reported 46. keys open the trunk to the the car proceeded take scale, a bags containing Inside were two Thunderbird. beeper, appeared and what glassine envelopes, pills, of illegal nice some sub- quantity type to be “a of Henry at 3. A stance.” Id. 19; opinion suppression court 10/11/94 substance revealed it illegal on the discovered performed test value of amphetamine, fifteen of with street grams to be $1,050.00. 11/17/92; Criminal complaint report arrest 11/17/92.
Rosenfelt was arrested for knowingly intentionally pos- or substance,1 manufacture, sessing controlled delivery pos- or session with intent to manufacture or deliver a controlled substance,2 possession of drug paraphernalia.3 His mo- tion to suppress physical evidence found the trunk of granted by car was the Honorable John J. Chiovero. support ruling, Judge opined his Chiovero that the Fourth Amendment of the United States Constitution and Article Constitution prohibited the vehicle, warrantless only search Rosenfelt’s as it was based suspicion, reasonable and occurred without parolee’s consent or statutory regulatory guidelines or governing such 66-67; searches. N.T. Opinion at 4. Addi- 9/20/93 10/11/94 tionally, Judge Chiovero held that Henry training lacked the or expertise necessary narcotics investigations, as well as any general police authority, that would have allowed her to Id. at 5. The search the trunk based upon probable cause. appeals.4 Commonwealth now
Our standard for reviewing suppression evidence . firmly established. appealing
Where Commonwealth is the adverse decision court, of a suppression reviewing court must only consider the evidence of the defendant’s witnesses and so much of prosecution the evidence for the as read in the context of the record as a whole remains uncontradicted. Common- Robinson, wealth v. 156, 159-160, Hamlin, (1988), citing, Commonwealth v. 503 Pa. If the supports evidence findings, the court’s factual we are by findings bound such 780-113(a)(16). § 1. 35 P.S. 780-113(a)(30). §
2. 35 P.S. 780-113(a)(32). §
3. 35 P.S.
Herein,
suppression
the Commonwealth has certified that the
order
case,
substantially handicaps
making
appeal
its
its
amenable to review
Pleummer,
this Court. Commonwealth v.
denied,
719 n.
allocatur
621 there- if drawn legal conclusions may only reverse Jackson, 359 Pa.Su- Commonwealth v. from are error. 427 per. 519 A.2d Robinson, 119, 123, 651 A.2d v.
Commonwealth Pa.Super. 438 Smith, v. (1994) Commonwealth 396 (quoting 1123 (1990)). 6, 8, A.2d 1388 577 Pa.Super. Rosenfelt had Henry testified that she was aware
Officer for meth- positively and had tested drug eleven arrests prior urinalysis during in his blood stream occasional amphetamines parole. on N.T. while he was tests administered 9/20/93 Moreover, found inside the she stated that items 52-53. “appeared drug parapher- to be passenger compartment car’s Id. at 46. suppression Despite testimony, nalia.” her cause to Henry probable court that did have concluded the trunk. open cause to in- Henry probable whether had deciding
Before trunk, first whether or not vestigate the we must decide meant he had a diminished parolee Rosenfelt’s status as that so, Henry proceeded If expectation privacy. could suspicion if had investigation only her even she reasonable being present, afoot or of contraband illegal drug activity if probable than cause to search demanding requirement less prerequisite.5 constitutional applicable were the 351, 355-57, Talley, Pa.Super. 634 A.2d 5. See Commonwealth v. (1993) suspi (stating requiring that the standard articulable engage "stop demanding to in a and frisk” is less cion in order requisite for searches based than that which allows warrantless Johnson, cause); probable also see Commonwealth 158, 164-66, (1993) ("[Rjeasonable suspicion [is] McCandless, cause....”); probable less than cf. (1994) (holding where a statute cause, required pursuit impermissible probable inter-jurisdictional accord, suspicion); only upon 648 A.2d at if mere id. based J., (Castille, dissenting) (stating suspicion that reasonable could cause). ripen into Vehicle Code has been used to refer to belief When violated, "probable cause” and "articulable we have held that terms suspect,” suspicion grounds well “reasonable as reasonable believe,” McElroy, interchangeable. 428 Pa.Su- are Commonwealth v. (en banc) (holding per. "articulable 38-39 standard). grounds suspect” preferred to be the This and reasonable "probable cause” when be with use of the term should not confused
I
*6
initially
Henry’s
The
argues
authority
Commonwealth
61
fully supported by
to search Rosenfelt’s car is
statute. See
§ 331.27.6 Rosenfelt
that this case is controlled
responds
P.S.
by
Pennsylvania Supreme
holding
Court’s
Common-
Pickron,
(1993),
wealth v.
535 Pa.
Pickron established that section 331.27 of the statute regulating penal and correctional institutions does not give carte blanche when parole agents authority investigating pa Pickron, rolees. In two parole agents parolee’s went to house with an arrest warrant issued for her failure to report Pickron, 242-43, to the State Board of Parole. 535 Pa. at They by A.2d at 1094. were admitted into the parolee’s house mother for the limited for purpose searching daughter. heroin, observing quinine, cutting agent Id. After some for their search to look for agents expanded drugs. We held that this permissible, parole search was as the officers were whether or not the properly ascertaining parolee had been engaging illegal drug activities. v. Ed wards, 197, 206-07, Pa.Super. reversed, Pennsylvania Supreme holding
The Court that “the prohibits the warrantless search of [F]ourth [A]mendment (sic) probationers parolee’s or residences based reason suspicion able without the consent of the owner or without a statutory regulatory or framework governing search.” search, used to refer to an arrest or however. at Id. A.2d at 38. (" usually higher knowledge by cause’ ... denotes a level of '[P]robable act....”). illegal of an officers; § peace powers 6. 61 P.S. 331.27 Parole officers as appointed by hereby Parole officers the board are declared to be peace hereby given police power authority officers and are warrant, writ, throughout the Commonwealth to arrest without or rule process any parolee probationer supervision or under of the board for failing report required by probation parole, the terms of his or or any other for violation thereof. (footnote Pickron, 249-50, omit- A.2d at 1098 535 Pa. at ted). decision, exam- specifically our Supreme its issuing Id. at applies parolees. as it
ined Fourth Amendment parolee’s that a 243-45, agreed A.2d 1095. The court at are not They limited. rights Fourth are Amendment status. however, parolee’s nature of the abrogated, simply by Alexander, 937. at at that, systemic proce absent The Court stated regulation, or there mandated statute guidelines dural parolee’s Fourth Amend protecting no safeguards would be Pickron, ment rights. or apply whether we held Pickron would
Subsequently, *7 police, horses” for the agents “stalking not the acted as parole or investigations, whether general police engaging of a for evidence looking specifically parole officers were Alexander, parole violation. enough uphold is not suspicion
A.2d at 938. Reasonable parolee’s premises. of a warrantless search apply The that Pickron does not Commonwealth claims and not questioned search was of Rosenfelt’s car because home, that suspicion, and had more than reasonable Henry his Pickron, is, cause, argued, search the trunk. it is probable only parole a search is conducted applicable is where suspicion or that crimi- upon officer based his her reasonable agree. that activity present. nal is afoot or contraband is We prior for that without a proposition Pickron stands from or specific guidance regulation, or statute agreement, search from an unreasonable and seizure parolee’s protection any no than afforded Commonwealth resid is less that other mean, however, extend It does not that Pickron would ent.7 Alexander, decision there has not As "since the Pickron 7. we stated authorizing regulation passage promulgation been or of a statute or setting parolee’s premises forth the frame- or warrantless searches Pa.Super. at work of when such a search can be conducted.” gave authority Henry parole policy her 937. testified that 647 A.2d at We do to search the car without warrant. N.T. 9/20/93 constitutional parolees greater guarantees.8
II Because Pickron is where the officer has inapposite parole automobile, cause to search must probable parolee’s we next decide whether Henry did indeed have cause to trunk drugs drug believe of the car contained The court said paraphernalia. suppression that she did not. Judge ruling Chiovero based his on the fact that “the ‘parole did expertise general officer’ not have the or police authority” that would have enabled her to conduct a constitutionally permissible search. court Suppression opinion at 5. 10/11/94 disagree. We Act, August
Section 27 of the Probation and Parole Act of 331.27, § § P.L. parole 61 P.S. states are police “police power authority officers officers with warrant, throughout Commonwealth to arrest without writ, rule or process any parolee probationer any or ... for Pickron, § parole].” violation 61 P.S. 331.27. Prior to [of had held that a parolee, expectations whose reasonable status, privacy consequence diminished as a of her must endure warrantless suspicion searches based reasonable violation. See Peter that she parole had committed a J. Gardner, Comment, Arrest and Special Search Powers of Pennsylvania: Police in Do Your Rights Constitutional Change Depending Uniform?, on the L.Q. 59 Temple Officer’s *8 (1986). 497, however, 532-534 authority, We know of no that per se § would read 61 denying parole P.S. 331.27 as officers right to conduct warrantless searches.9 entails, policy know what this is or what it nor does the Commonwealth any pertinent provisions policy. refer us to of such a parole probable 8. Because we hold that officer had cause to search, question conduct a we leave unanswered of whether a autompbile parolee’s expectation privacy regarding is less than citizenry. § the extant See II. infra Pickron, Papadakos, dissenting part, Justice cited 61 P.S. proposition § parole general 331.27 for the officers have the authority parolee’s to conduct warrantless searches of a residence suspicion. Clearly, rejected based mere reasonable this view was
625
flexible,
standard.”
cause is
common-sense
“[PJrobable
Brown,
1535,
730, 742,
1543,
v.
103
75
Texas
460 U.S.
S.Ct.
Mallory, 418
v.
(1983);
e.g.,
Commonwealth
502,
L.Ed.2d
514
(1992),
allocatur
1174,
614, 616,
1176
614 A.2d
Pa.Super.
denied,
632,
indicated in the
533
Often that cause in order to buttress the court’s view ing and seizure situation. Bai- questioned wás extant search his support holding Chiovero cited to ley, supra, Judge which requisite training recognize narcotics Henry lacked use, a case. drug just as indicia of such the found items officer who conducted Bailey, we said training had sufficient search that case warrantless him controlled substances. Id. at recognize enable at 946. The officer’s belief that contraband *10 to cause probable vehicle constituted target in the located search. area, because in this confusion to be some
There seems when training special officer’s rely upon police courts often are These cause to search. probable she had holding that had would not have average citizen situations where often See, activity. e.g., drug similarly recognize expertise to 123-27, 1124-25 Robinson, A.2d at Pa.Super. cause, should take courts determining probable in (stating that officer); expertise and experience account the into Kendrick, Pa.Super. (“[I]t focus on the to important is a trained officer eyes through as seen circumstances might.”) average citizen the situation as and not to view mean, however, when the circumstances that This does not to believe that for an officer education special no require must still afoot, support the Commonwealth activity criminal into evidence by placing cause probable showing its Robinson, 438 Pa.Su- background. training officer’s Cf. should not (stating 1124-25 that we A.2d at per. might probable be “by actions what officer’s measure LaFave, Search W. (quoting untrained civilian.” cause to an Amendment, 570-71 on the Fourth A Treatise and Seizure: 1987)). from the (2d driving a car stopped If an officer ed. store, and looted electronics recently of a general direction rooftop to with panel from rocker jammed car was in investi- training the officer’s stereos, inquire as to would robberies? burglaries and gating conclude, therefore, a government
We do investiga in narcotics specialized training has to have officer drugs for cause to search probable her to have tion for signs drug possible where she confronts every instance activity does not or observed If discovered items activity. citizen, then we average drug activity to easily reveal training specialized an officer’s rely would need to that her obser we would hold investigations before narcotics Where the cause to search. probable vations amounted indi- are obvious reported behavior objects discovered and/or we hold community, in the anyone drug activity cators training special not need officer does government that the cause to have for her investigation narcotics a search. initiate situation, noticed Barringer Henry
In this
be other
may
view.10 While there
plain
drug paraphernalia
items, proba
of these
possession
for Rosenfelt’s
explanations
look at
us to
cause,
implies, only requires
term
ble
as the
Bailey,
at 298-
not certainties.
probabilities,
involve
prior
Rosenfelt’s
Henry
at 946.
knew
She, as a
officer
parole
N.T.
at 53.
drugs.
ment with
9/20/93
*11
recog
to know
police powers,
presumed
general
with
code as well as
Controlled
of the criminal
nize violations
with
Substance,
Act. Possession
Drug, Device and Cosmetic
35
violation of the latter.
is a
drug paraphernalia
intent to use
780-113(a)(32).
specif
have been
Hypodermic syringes
§
P.S.
35
drug paraphernalia.
as prohibited
included
the act
ically
(11).
780-102(b) “Drug paraphernalia”
In determin
§
P.S.
cause,
of the circum
totality
we look to the
ing probable
Quiles,
A.2d at 298.
Pa.Super.
422
619
stances.
inference;
it
is one reasonable
criminality
exists when
“[It]
likely,
even most
inference.”
only,
not be the
or
need
standard,
cause to
Henry clearly
probable
had
this
Under
in the car.11
hidden elsewhere
drugs
believe that
were
probable
cause to search
Judge
‘‘[t]here
Chiovero held that
10.
(sic)
found within
and cease
the contraband
interior of the automobile
plain
at 66. For the
plain view." N.T.
they
were all within
9/29/93
incriminating
object
operative,
character of the
"the
view doctrine to be
Grimes, 436
immediately apparent.”
Commonwealth v.
[must be]
omitted).
538,
(citations
It is
Pa.Super.
648 A.2d
paraphernalia was
nature of the
to state that the criminal
inconsistent
items,
opaque
too
to allow
enough
Henry to seize the
but
obvious
for
investigation.
further
would mean that
Having probable
to search the car's interior
cause
probable
"[I]f
the trunk.
Henry
had
cause to search
also
vehicle, may
he
then
possesses probable
to search a motor
cause
officer
seeking
compartment without
to obtain
of the trunk
conduct a search
Bailey, 376 Pa.Su-
particularized area.”
probable cause relative to the
Elliot,
944;
296,
v.
see also Commonwealth
per. at
denied,
(1992),
534 Pa.
A.2d 727
allocatur
A.2d 177
hi
to believe that
Henry had
cause
The fact that
necessarily
does not
the trunk
present
contraband was
constitutionally permissi-
search was
mean that a warrantless
anal-
Supreme
Rosenfelt
that under recent
agrees
ble.
Amendment,
right
had the
to search
Henry
of the Fourth
ysis
Acevedo,
(citing
brief at 16
v.
Appellee’s
the trunk.
California
(1991),
A
not make
states that Rosenfelt did
The Commonwealth
suppression hearing,
trial court at the
argument
this
to the
Specifically,
thus
from
so now.
precluded
doing
and is
failed to meet
District
office claims that Rosenfelt
Attorney’s
impression
for
a case of first
requirements
arguing
Constitution, as
implicating
raises an issue
Edmunds,
set forth Commonwealth
Edmunds,
that “cer
our
Court held
*12
in each
analyzed by litigants
tain factors
be briefed and
[must]
provision
Pennsylvania
...
of the
constitu
implicating
case
(footnote omitted).
Id. at
1) Pennsylvania provision; constitutional text of the 2) law; case history provision, including Pennsylvania 3) states; law from other related case Pennsylvania in whole: 12. Article Section 8 of the Constitution states Security and seizures from searches houses, persons, papers and people be secure in their The shall seizures, no warrant professions searches and and from unreasonable any person things shall issue without any place or to seize or to search cause, be, may describing nearly as nor without them by the affiant. supported by or affirmation subscribed to oath
4) considerations, of state and unique issues including policy modern concern, Pennsylvania local and within applicability jurisprudence. it was
First,
just because
does not waive a claim
appellee
the trial
successfully, argued to
artfully, although
less than
Second,
appellee
of no
that an
requirement
court.
know
first do an Edmunds
for
trial court. We believe
analysis
the
requested
the
has not
this is
true where
trial court
especially
Edmunds,
See
at 389-
526 Pa.
parties
the
to brief the issue.
litigants
that it
(stating
important
Holzer,
93,
(citing Coolidge
101
480 Pa.
389 A.2d
2022,
564,
443,
29 L.Ed.2d
reh.
91 S.Ct.
403 U.S.
Hampshire,
(1971)
26,
in
denied,
874,
L.Ed.2d 120
92 S.Ct.
30
404 U.S.
exigent
is excused when
requirement
warrant
stating that the
exist);
Cockfield,
v.
Commonwealth
circumstances
(1968) (“[A]n
381,
is not
per
automobile
246 A.2d
384
of the Fourth
procedure
the warrant
by
se unprotected
491,
Amendment.”);
Kilgore,
Pa.Super.
v.
437
Commonwealth
(1994)
462,
Elliot,
(relying
Automobiles, homes, and subjected pervasive unlike are controls, including continuing governmental regulation As an ev- inspection licensing requirements. periodic occurrence, and examine vehicles when eryday police stop if other expired, or stickers have or plates inspection license noise, violations, are such as exhaust fumes or excessive noted, safety equipment or if or other are not headlights order. proper working L.Ed.2d
428 U.S.
96 S.Ct.
level,
to the war
exception
On the federal
the automobile
requirement
nearly developed
per
rant
has
into a
se rule.
*15
Camacho,
2;
Pa.Super.
425
at
Pennsylvania
recognized
development
case law has
Camacho,
per
exception
this
se
under federal law. See
yet
at
Justice mance, “it said searches motor cannot be opined, se, Id. are, per requirements.” from warrant exempt vehicles wrote, at Specifically, Flaherty at 919. Justice ... exi- “[SJubject carefully exceptions to certain delineated gent necessary justify circumstances ... a warrant- [are] (citations 477, 544 less vehicle search.” Id. at A.2d at 919-920 omitted). car’s impermanence In that the elemental reasoning circumstance, per se Flaher- exigent does not create Justice ty relied both the United States and Con- upon Id. support. stitutions for Reversal,
In In one of the two Of Justice Opinions Support war- hypothesized extending exception McDermott to the officer, faith, rant when an requirement, recognized good warrant,17 relies no a defective search situations where upon Id. procured. warrant is ever A.2d at the other Papadakos, writing Opinion Support Justice Larson, Reversal, joined by in which he Justice advocated se rule that would per more akin to a something allow cause, search even after the a vehicle based vehicle has been secured. at 921-922. *16 “paral- that such an would Papadakos approach Justice stated Johns, (sic) U.S. the Federal Standard enunciated ] lel (1985)....” Id. 469 105 83 890 S.Ct. L.Ed.2d U.S. His based the opinion specifically upon Pennsylvania was Id. at previous holding Milyak, supra. Supreme Court’s stated, As 544 A.2d at we have already 921-922. however, Milyak solely Fourth decided Amendment grounds. Milyak, Pa. at 1348 n. 3. C remains, question The therefore: is a warrantless vehi Constitution, justified, Pennsylvania cle search under the ab- Leon, 17. See States v. 468 U.S. United 104 S.Ct. 82 L.Ed.2d Supreme rejected good Pennsylvania The Court faith Edmunds, exception requirement to the warrant in Commonwealth v. inherent mobile other than the any circumstances exigent sent this question, In order to answer nature of the car itself? mandates of our an faithful to the develop analysis must first in Edmunds.18 Supreme Court
Text Consti- Pennsylvania 8 of the The text of Article following: provides tution Security and seizures
§
from searches
houses,
persons,
in their
shall be secure
people
The
and
unreasonable
searches
from
papers
possessions
and
seize
seizures,
any place
any
or to
and no warrant
to search
them as
describing
without
things shall
issue
person or
cause,
by
be,
supported
may
as
nor without
nearly
the affiant.
or affirmation subscribed
oath
Pennsylvania
Constitution
“Although
wording
of the United
the Fourth
Amendment
language
similar
Constitution,
the two
interpret
we are not bound to
States
where the text
images,
if
were mirror
even
they
as
provisions
Edmunds,
Pa. at
586 A.2d at
is similar or identical.”
omitted). Furthermore,
(footnote
“[a]s
citation
895-896
constitution,
its own
interpreting
independent
sovereign
no
Rights,
presumptive
Federal Bill of
preceded
which
Supreme Court
given
be
to United States
validity should
Sosnov,
Leonard
of the Federal Constitution.”
interpretations
Consti-
Pennsylvania
Rights
Procedure
Under
Criminal
Future, Exploring
Examining the Present
tution:
omitted).
(1993) (footnote
best,
At
J.Pub.L.
Widener
only
law have
of Federal Constitutional
interpretations
such
requirement
emphasizing
value.
persuasive
analyze the
independently
courts
in Edmunds did
Constitution,
even
Court
Supreme
our
precedent
States
include a review of United
Id. 235.19
considered.
factor
be
mandatory
*17
IIIA, supra.
§
See
analyze
to
judges
encouraged state courts
and
19. Commentators
by
interpretation of the
federal
own constitutions unencumbered
their
Pettine,
See, e.g.,
Annual
Samantha
States Constitution.
United
Fifth
History
I,
“Article
observation that
general
begin with
We
Court,
Pennsylvania Supreme
8,
by the
interpreted
as
Section
the individual’s
serve to protect
core values that
reflects
exclusionary
Id. at
245. “[T]he
possessions.”
privacy
bolster
served to
consistently
has
Pennsylvania
rule in
8; to-wit,
1,
safeguarding
of Article
Section
aims
twin
shall
that warrants
requirement
fundamental
and the
privacy
Edmunds,
at
526 Pa.
cause.”
upon probable
be issued
only
omitted).
(citation
398,
A.2d at 899
rights
history
protecting
long
have a
and noble
We
to be free
right
“[T]he
individual in this Commonwealth.
1,
in Art.
contained
searches and seizures
from unreasonable
implicit
is tied into the
8,
Constitution
Pennsylvania
§
Commonwealth
in this Commonwealth.”
right
privacy
to
DeJohn,
cert.
1283,
(1979),
denied,
704,
1032,
637 As we two centuries. past for the this Commonwealth language Sell: “the survival [Commonwealth v.] in stated 1, years over 200 through in 8 Article Section employed now in areas demonstrates change other profound of our adopted part first as privacy concern for paramount mandate of the enjoy to organic law 1776 continues 46,] 65, A.2d Pa. 470 of this people [504 Commonwealth.” (1983) [457,] 467 [ ]. omitted). (other citations every interpret that in instance we will
This does not mean
8,
1,
more
to citizens than
giving
protections
Article
Section
v. Robin-
does the Fourth Amendment. See Commonwealth
son,
199,
(holding
14
a state
399
582 A.2d
automobile
analysis balancing
passenger’s
constitutional
no different
police
safety yields
with a
officer’s
privacy rights
examination),
a Federal Constitutional
results
than would
(1991).
denied,
629,
An
allocatur
In
that the
must obtain a warrant based
holding
records,
our high
cause
order to examine bank
probable
holding
Court’s
specifically disagreed
Supreme
court
with
Miller,
1619,
United States
425
96 S.Ct.
48
U.S.
that Miller
(1976),
established a
stating
“danger-
L.Ed.2d 71
DeJohn,
held to federal indeed locker was a search. Edmunds, good Supreme rejected our Court
Finally,
Edmunds,
exception
requirement.
the warrant
faith
411-13, 586
at 906.
Pa. at
interpretation
A review of
*19
(1)
8,
1,
Article
two precepts:
Article
Section
reveals
greater
privacy
8 affords our citizens a
of
expectation
(2)
Amendment;
pur-
primary
does the Fourth
than
ensure
exclusionary
rule
is to
pose
Sosnov,
supra
at 249.
citizenry’s right
privacy.
From
States
Related Case-Law
Other
jurisdictions
of other
fails
find
An examination of the law
per
se
opinion regarding
application
a consensus
exception.
precedent
Most states follow federal
automobile
automobile,
nature,
very
type
its
is itself
holding that
See,
Werner,
e.g., State v.
exigent
circumstance.
Tomah,
State v.
(R.I.1992);
(Me.1991);
A.2d 1267
State,
Isleib,
v.
(Miss.1991);
v.
State
Franklin
Maine’s
court
inherent
of a
mobility
“[T]he
motor
coupled
vehicle
with the reduced expectation
privacy
associated
justifies
with it
the warrantless
search of that
vehicle so
long
the search is supported by probable cause.”
Tomah,
(citations omitted).
stated that “the
mobility
inherent
of the automobile is itself
Isleib,
exigency.”
Mississippi similarly rested its decision a ultimately upon Franklin, foundation of federal law. supra. While the Mis- Franklin did cite to both federal sissippi Supreme Court case-law, and Mississippi a review of those cases reveals that they are either inapposite or are themselves squarely based State, reading Fleming case-law. See federal (Miss.1987) So.2d (adopting Supreme Court’s Ross); State, Patterson v. holding 413 So.2d (Miss.1982) (reasoning that warrantless inventory searches are constitutional).
We find these cases unpersuasive. Courts such as the one in Tomah base their solely decisions on federal courts’ applica- such, tion of the Fourth Amendment. As they provide no into insight whether or not state citizens might have a higher expectation of privacy under state law. To- year The same mah decided, the Maine Supreme Court specifically de- from intru- governmental greater protection
dined to extend under the required its than that sion under state constitution Tarantino, A.2d 1095 State v. Federal Constitution. (Me.1991). “announce the existence from its refusal to Apart on Article exclusionary rule based of a state no Constitution,” Supreme engaged the Maine Court Maine analysis of automobile independent state constitutional Id. at 1098. exception. its constitu- high court did mention state
North Carolina’s references, tion, when it conclud- only but also the barest of applicable to the fourth reasoning ed “that the law rights defendant’s ... is also determinative of amendment Isleib, 319 N.C. under Constitution of North Carolina.” ability certainly respect at 577. While we S.E.2d constitution, to its such interpret North Carolina own directions; sans like road without analysis signs are assertions are, got do not know how we may know we but we where to proceed. there nor where account its did take into Supreme
The Rhode Island Court to exception the automobile analyzing constitution in own state however, so, it doing simply requirement. the warrant law search and to the stability brought stated that new precedent via recent United States seizure recognized law precedent state wherein state negated prior Stability, than did federal law. right privacy greater jurisprudential all hallmarks of clarity are uniformity, however, for curtail- Certainty, poor is reason husbandry. high If the of a state have a rights people and freedoms. ing own state consti- privacy looking when their expectation tution, be- expectation simply should not be diminished more sovereign’s provide constitution seen cause another constancy. from analysis
More
our
are the cases
states
helpful to
*21
greater
provide
their own constitutions
have decided that
the
from
searches than does
Federal
governmental
protection
Miller,
un
Supreme
the Connecticut
In
Constitution.
it
of
analysis
exception
the automobile
thorough
dertook
Conn. at
the
Constitution. 227
would
under
Connecticut
apply
378-386,
fact,
In
court in
We
a strong preference for war-
Grossman,
290, 297-98,
rants. See Commonwealth v.
521 Pa.
555 A.2d
(holding
requirement
specificity
particularity
to be found in a warrant is more
stringent
Amendment);
than
Fourth
see also
Daniels,
Commonwealth v.
406 “[wjar-
that,
(stating
Amendment,
under the Fourth
unreasonable,
rantless searches are
se
per
subject only to a
(citation
few,
denied,
omitted)),
limited exceptions.”
allocatur
that,
general
Our
rule is
*22
or
is not reason-
search
seizure
Article
“a
under
to a
warrant
issued
pursuant
it is
search
able unless
conducted
cause.” Com-
probable
a
by
showing
magistrate
a
Kohl,
152, 166, 615
v.
monwealth
Mil
general principle.
holds true to that same
Connecticut
ler,
explaining
In
the
Other while as Connecticut, similarly that both cause probable held justify are required well actual circumstances exigent Edwards, 836 P.2d 471-472 vehicle search. See warrantless cir exigent that under the Fourth Amendment (recognizing unnecessary, Constitution are while Colorado cumstances of the vehicle’s plus practical cause “a risk requires probable is a search warrant if until unavailability postponed the search (“[I]t Larocco, is obtained.”); the state’s 794 P.2d 470-471 exigent cause and circum to show that both burden search.”); State present at the time stances were Kock, (holding P.2d a search Or. or requires proof of a immobile car a warrant parked, mobility existed at exigency other than the vehicle’s inherent Patterson, time). supra, State Washington interests of its state’s privacy Court balanced as well as requirements police investigation citizens with the There, safety. exigencies the court concluded that public “[i]f *23 exist, in mobility they justify addition to will potential Patterson, 112 P.2d warrantless search.” Wash.2d at justifications at 12. The court for a noted the traditional are not when present police “approach warrantless search the immobile, parked, unoccupied, secured vehicle.” states, Looking to the case-law of our sister we conclude privacy seriously that when the interests of citizens are taken account, mandatory into a warrant becomes to search a vehi- cle, exigent absent circumstances from the vehicle’s apart mobility. potential
Policy Considerations Guiding our decision is our concern that police effective curtailed, not investigation improperly safety be nor the of carelessly imperiled. officers and citizens be do not We to, McDermott, intend in the words of Justice create a “surre- situation, al where the honest zeal of police officers counts for killer, nothing, however loaded with contraband be the may terrorist, dealer, etc,” drug police penalized where the are “for Ionata, their success and the vampire walks.” 518 Pa. at (McDermott, J., Opinion A.2d at 921 in Rever- Support of sal). balanced, however,
Such concerns have to be with the of heightened expectation privacy enjoy our citizens under the Supreme Constitution. As our Court has stated: government We are mindful that inter- compelling has in of eliminating illegal drugs society, est flow into our society and we do not seek to frustrate the effort to rid all scourge. things permissible this But are not even pursuit compelling of a state interest. The Constitution not cease to exist merely government’s does because the not A state does arise when- compelling.
interest gets out of ever crime hand. Martin,
Commonwealth v. absolute, are are they as citizens rights While our absolutely. not to be abrogated right weighed with sister who have agree our states We safety evidence and the against the need to secure privacy constabulary. Once car is control citizens officers, or, parole case sub the scales police, judice, are tip expectation privacy. in favor of individual’s We it Supreme Washington Court of when full accord with stated, own language to the of our constitu- unique “Pursuant bal- tion, carefully restricted automobile searches to against a real privacy an individual’s interest state ance search; enough.” is not need mere convenience societal (citations Patterson, P.2d Wash.2d omitted). Court has recognize United States
We *24 on inde- searches based allowed warrantless automobile a of person’s expectation and alternate reason that pendent objects supra, car is diminished. See placed for a privacy Moreover, § not be to hope privy III-B. that others will strong is in a trunk is not as as certainly that which stored not into the secrets government pry belief that will See, v. away e.g. in the bedroom. squirreled Peterson, 492, 499, 615, (stating 535 Pa. 618 in vested expectation privacy there is “substantial of (citation Holzer, omitted)); premises.” residential (“[Ojne’s expectation privacy [in 389 A.2d at or relating less than that to one’s home significantly is car] omitted)). (citation Moreover, right privacy] is [of office.” “the one; against weighty it must be balanced unqualified not an Stenger Lehigh interests.” v. private and state competing Center, Pa. Valley Hospital omitted). (1992) (citation established, however, this already right have
As we
more
Article
than it is
privacy
expansive
is
under
Parker,
under the Fourth Amendment. Commonwealth
We
expectation
privacy
look to see whether a
person’s
therefore
Brundidge,
legitimate
is
or reasonable. Commonwealth
“The resolution of this issue
There are few who one time Americans or another used their cars for All storage, unwisely. albeit [Ajmend- personal effects so stored are entitled [FJourth [Cjonstitutional ment protection; guarantees are not re- served for valuable only possessions carefully protected by their owners. Most Americans view the automobile more than merely transportation. Katz,
Id. at 33-34 (quoting Automobile Searches and Dimin Clause, Expectations ished in the Warrant Am.Crim. (1982)). L.Rev. 570-572
Similarly, unpersuasive reasoning find that a driver’s occupant’s expectation or in the car is diminished privacy “A highly regulated. legitimate because cars are interest securing compliance safety regulations with and traffic should justify not be used to expectation privacy.” reduced *25 not, itself, A broken will the headlight by lead to a search of may zoning, trunk. Homes come under fire and occupancy, not, safety rules and in and of regulations. These do them- selves, increase our enter anticipation police that the can them without a warrant.
Along citizenry’s great expectation privacy, with our we strong preference base our decision on the Commonwealth’s law en- exigencies the recognize for warrants. We that a mandate. prohibit making us from this universal forcement there, Yet, longer require no exigencies when the are person’s decide magistrate neutral and detached whether home, car, subject governmental should be possessions officers, enforce- dedicated to law intrusion. We want society, ment, to be in their In a free vigilance. zealous however, limits. must have its To government circumspection end, is a restraint on executive this Fourth Amendment “[t]he Acevedo, at See at S.Ct. power.” U.S. J., (Stevens, As dissenting). Justice Stevens L.Ed.2d dissent, opinions by out authored in pointed Jackson, as special prosecutor written after he served Justice trials, “recognized impor- Nuremberg War Crime practices against police of this bulwark tance restraint (citation omitted). in Id. prevail regimes.” totalitarian explanation: quoted Stevens Justice Jackson’s Justice Amendment, often Fourth which is not point The of the officers, that it denies law enforce- by zealous is not grasped inferences which reasonable support ment usual protection requir- draw from evidence. Its consists men by a and de- those inferences be drawn neutral ing officer being judged by instead of magistrate tached competitive enterprise ferreting out engaged in the often crime. States, (quoting Johnson United U.S. (1948)). L.Ed. 439-41
S.Ct. instance, Henry In would have been this Parole Officer securing a warrant. Rosenfelt minimally burdened only in the the parole The car was control of custody. off no risk that it would have been driven officers. There was fact, in no danger. third The officers were party. drug inside the Barringer paraphernalia did not discover the placed until he was it and Rosenfelt was driving car after Thus, after custody. any “exigency” which occurred arose in full were control of vehicle. parole officers Henry burden to would have been a minor Clearly, only To words of securing inconvenience in the warrant. use the *26 dissent, in the interest Marshall, “only minimal writing Justice in a obtaining weighs the warrant avoiding in inconvenience Rodriguez, Illinois side of law enforcement.” on the 2793, 148, 192, 2803, 177, 111 L.Ed.2d 110 S.Ct. U.S. (1990) (Marshall, J., dissenting). in have the
Finally, years we that recent we witnessed note under the Federal Consti- right privacy the diminishment the by are recent news that 104th United tution. We alarmed repeated, “a that verba- Congress voted down measure States tim, Q. Fourth the of the Amendment.” Katharine language a Congress A New Lawyers At the Bar: with Seelye, Inclinations, 7, Times, April with Congress N.Y. Different make seemingly A33. done order to being This is mere fact that law more efficacious. “[T]he law enforcement more can itself made efficient never may enforcement be Mincey the Fourth Amendment.” justify disregard of Arizona, 57 L.Ed.2d U.S. S.Ct. committed). (citation can it be an excuse Nor Pennsylvania of the Constitu- to curtail Article Section tion.
IY ruling suppression hold that court was correct We the in the the car have found trunk of should that evidence or suppressed.20 policy agreement been Absent clear board, parolee parole parolee does between mean, This does not expectation privacy. a diminished have however, parole upon proba- officers cannot search based instance, based her observation of ble cause. this her compartment of the reasonable passenger contents therefrom, Henry Officer had inferences drawn apart search circumstance exigent cause to the trunk. Absent however, Henry have mobility, the car’s should from inherent Because before the trunk. opening first secured warrant agree all of the in the trunk should Because evidence bags suppressed, in the trunk we need not decide whether been Henry justified looking been if into could have searched had been without a trunk warrant. officers, and no of the control and dominion the car was vio- warrantless search present, exigency discernible Constitution. Article lated affirmed. Order
WIEAND, Judge, dissenting:
I,
that,
to Article
Section
majority
pursuant
The
holds
Constitution,
mandatory
“a warrant becomes
Pennsylvania
the
from
vehicle,
apart
circumstances
exigent
a
absent
to search
I
the
Although
understand
mobility.”
vehicle’s potential
the
decision of
opinion
I
that the
majority’s reasoning,
am
Baker,
v.
Commonwealth
Court
Pennsylvania Supreme
the
grounds
overruled on other
(1988),
518 Pa.
541 A.2d
Rosario,
v.
538 Pa.
in Commonwealth
Baker,
In
the
(1994),
contrary
a
result.
compels
search of
of a warrantless
analyzed
lawfulness
Court
I,
and Article
both the Fourth Amendment
automobile under
doing,
so
Pennsylvania
Constitution.
reasoned as follows:
se
per
are not
established that automobiles
It
is well
of the Fourth
by
requirements
the warrant
unprotected
I,
Amendment,
§ 8 of the
Consti-
and of Art.
Holzer,
v.
480 Pa.
tution. Commonwealth
(1978). Nevertheless,
exigencies may
certain
render
under the
reasonably practicable
of a warrant
obtaining
occurs,
case, and,
vehicle
when that
given
circumstances of
been deemed
warrants have
searches conducted without
See Common-
present.
cause was
proper
probable
where
Com-
(1985);
A.2d 1346
Milyak,
wealth v.
Lewis, Holzer,
supra;
monwealth
(warrantless
where
proper
search
Of
an alternative to an immediate search
have been to immobilize the vehicle until
present case would
noted, however, in
As
a warrant could be obtained.
Com
493 A.2d at
it is
Milyak,
monwealth v.
508 Pa. at
arising
not clear
the intrusion
from immobilization
it.
searching
an
is less than the intrusion of
automobile
Thus,
alternative, not
held to be an
immobilization has been
Id.,
at 1351. In
requirement.
508 Pa. at
short,
exigent
scenario where
presents
typical
this case
reasonably practicable
made it not
obtain
circumstances
stopping
a vehicle that contained evidence
prior
warrant
cause to search the vehicle was
probable
of crime. Since
and, thus,
required,
a search warrant was
present,
during the
held the revolver seized
properly
Superior
evidence.
to be admissible as
search
Baker,
A.2d at 1383-
supra
v.
Commonwealth
omitted).
Ionata,
(footnote
Compare:
Support
(Opinion
After careful cause and pre-existing probable officers had parole where the appellee’s prior stopping to obtain a warrant opportunity an Rather, his arresting violating parole. him for vehicle and stop arose after the when cause to search the vehicle Although view. plain was observed drug paraphernalia vehicle and appellee’s have immobilized officers could parole any risk of the vehicle obtained a search warrant without and the custody appellee had of both being away (they driven only clear that this was vehicle), the Court has made Fourth not a under either the option requirement I, Article Con- Amendment or Baker, I would supra. stitution. See: Commonwealth hold, therefore, appel- officers did not violate parole that the his vehicle without first rights by searching constitutional lee’s reason, I reverse the For this would obtaining warrant. the evidence seized suppressed of the trial court which order majority In that the has trunk of vehicle. appellee’s from the *29 otherwise, I respectfully dissent. decided