Commonwealth v. White

669 A.2d 896, 543 Pa. 45, 1995 Pa. LEXIS 1481

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1995
• Docket: 31 WD Appeal Docket 1993
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

The sole issue raised in this case is whether the police may conduct a warrantless search of an automobile, absent exigent circumstances, after its occupants have been arrested and are outside the automobile in police custody. For the reasons that follow, we hold that such a search is illegal and that evidence seized as a result must be suppressed.

The facts of record are that in late 1989 Pittsburgh police received anonymous telephone calls identifying William White and Henry Bennett as drug dealers. The caller described the two men and gave their addresses and locations where they allegedly dealt drugs. Subsequently, police met with a confidential informer who confirmed the information given by the anonymous caller and added a description of Bennett’s car and the method by which the two made drug deliveries.

In late January, 1990, police arranged a controlled purchase of cocaine using the confidential informer. One of the two officers who witnessed the purchase and the informer identified White as the person who sold cocaine to the informer. The material purchased from White tested positively as cocaine.

In February, 1990, the confidential informer told police that he had seen a large supply of cocaine in Bennett’s house; that Bennett told him that he would be selling cocaine that weekend; and that the drugs were being moved back and forth between Bennett’s and White’s residences. He also told detectives that the dealers intended to make a sale of cocaine behind Abbott’s Beer Distributor on Saturday, February 17, 1990.

Police arranged to have the area put under surveillance on February 17. The two detectives who had been working on the case met with others who would be assisting that day and briefed them. The essence of what the other police were told was that a blue car was expected to be involved in an illegal drug sale. Early on February 17, the two detectives who controlled the investigation drove by Bennett’s house and witnessed Bennett, White and another man standing on the front porch.

Based on the totality of their information, the detectives secured search warrants for Bennett’s residence, his vehicle, and his person as well as White’s residence and person. They did not obtain a search warrant for White’s vehicle. The detectives then returned to the stakeout area and communicated to other officers that they had secured search warrants.

Shortly thereafter, White drove his blue Ford into the area. An unidentified man got into White’s car, and as this was happening, Bennett drove into the area and passed White’s car several times before leaving the area. When Bennett was gone, police converged upon White’s car.

Although police accounts of what happened during White’s arrest differ somewhat, the essence is that six or eight police officers converged upon White’s car and took both the passenger and White into custody. According to one officer’s account, the driver emerged at gunpoint; another officer, who was also present, said that the driver exited the car voluntarily after the officer identified himself and asked him to come out of the car.

Next, two officers partially entered the car from both open doors. The officer on the passenger side of the car first noticed and communicated to his colleague that a marijuana cigarette was present on the console between the seats; moments after that the officer on the driver’s side retrieved a brown paper bag from between the two front seats, which he took outside the car to open. Upon discovering that the bag contained cocaine, the officer announced to the others that he had “the dope,” and the occupants of the car were handcuffed.

The court of common pleas, sitting as a suppression court, suppressed the evidence on the grounds that White was not arrested until after the warrantless search uncovered a marijuana cigarette and the cocaine. The court further observed that there were no exigent circumstances justifying a warrant-less search of the car and that police had time to secure a search warrant for the vehicle because they received information about the February 17 transaction between thirty-six and forty-eight hours before the search.

Superior Court reversed, holding that a search warrant for White’s automobile was not required because police had probable cause to search the vehicle and the search was properly conducted pursuant to the “automobile exception” to the warrant requirement. The rationale for this exception is said to be that it is impracticable to obtain warrants for vehicles in transit because of their highly mobile nature, and that absent the search it is possible that the vehicle will be moved and contraband will disappear. Superior Court acknowledged that a warrantless search of a vehicle is permissible only when probable cause arises in an unforeseen way, but concluded that probable cause was unforeseen in this case because it was unknown what vehicle would be used.

Superior Court also held that in any event, the search occurred “incident to a lawful arrest,” and was, therefore, justified.

We granted allowance of appeal in order to address the question of when police must secure search warrants in order to conduct vehicle searches.

Before addressing these substantive matters, however, it is necessary to address the Commonwealth’s claim that White has waived his claim that the search of his automobile was illegal under Article I, Section 8 of the Pennsylvania Constitution¹ because he did not set forth his state constitutional claims in the manner required by Commonwealth v. Edmunds, 526 Pa. 874, 586 A.2d 887 (1991). This claim is meritless. White clearly raises a claim under the Pennsylvania Constitution, cites cases in support of his claim, and relates the cases to the claim. That is sufficient. In Edmunds, in dicta, this court clearly stressed the importance of briefing and analyzing certain factors in order to aid the courts in reviewing state constitutional issues.² While not mandating the analysis, we reaffirm its importance and encourage its use. In other words, Edmunds expresses the idea that it may be helpful to address the concerns listed therein, not that these concerns must be addressed in order for a claim asserted under the Pennsylvania Constitution to be cognizable.

Having concluded that White has raised cognizable claims under the Pennsylvania Constitution, it remains to address whether the search was justified because it was conducted pursuant to the “automobile exception”; whether the search was justified because the probable cause on which it was based arose in an unforeseen manner; whether the search was permissible because it was incident to an arrest; and whether the search is to be excused because an inventory search would have disclosed the same evidence.

With respect to the claim that the search of the vehicle was permissible under the “automobile exception,” the Commonwealth and Superior Court are in error. The so-called “automobile exception” to the requirement for a search warrant is perhaps best articulated in Chambers v. Maroney:

In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.

399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970) (Emphasis added).

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 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.

This court addressed the “automobile exception” in Commonwealth v. Ionata, 518 Pa. 472, 544 A.2d 917 (1988), where police applied for and received a search warrant for the person and the apartment of Ionata based on information that he was involved in the drug business and that drugs were hidden in the hood compartment of his car. In Ionata, as in this case, police did not request a warrant for the search of the suspect’s automobile. Nonetheless, when Ionata drove up to his apartment, police removed him from the car and searched the car, finding illegal narcotics and drug paraphernalia. At that point, Ionata was placed under arrest. The Commonwealth argued that because there was probable cause to have obtained a search warrant for' the automobile, the search was permissible even though no warrant had been obtained. A three-member plurality of this court disagreed:

While certain exceptions to constitutional requirements of obtaining warrants have been recognized in the realm of vehicle searches, it cannot be said that searches of motor vehicles are, per se, exempt from warrant requirements. In Commonwealth v. Milyak, 508 Pa. at [2] 7-8, 493 A.2d [1346] at 1349 (1985), this Court stated,

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____

(Emphasis added). See also Commonwealth v. Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 384 (1968) (“[A]n automobile is not per se unprotected by the warrant procedure of the Fourth Amendment. Although it sometimes may be reasonable to search a movable vehicle without a warrant, the movability of the . area to be searched is not alone a sufficiently ‘exigent circumstance’ to justify a warrantless search.”); Pennsylvania Constitution, Art. I, § 8 . . .

518 Pa. at 476-77, 544 A.2d at 919 (Opinion in Support of Affirmance).

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 furnish 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.³ 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.

Next, Superior Court determined that in any event, the search was permissible because it occurred incident to an arrest. Although White contends that he was not under arrest at the time the search was conducted and that he was put under arrest only after the warrantless search of his car was completed, this claim is meritless. In Commonwealth v. Rodriquez, we reiterated the test for determining whether an arrest has occurred:

“We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest____”

532 Pa. 62, 74, 614 A.2d 1378, 1384 (1992), quoting Commonwealth v. Duncan, 514 Pa. 395, 400, 525 A.2d 1177, 1179 (1987). Under either officer’s account of the arrest, it is fair to say that White was not free to leave and that he was subject to the control of the officers who removed him from the car. Had he attempted leave, it seems likely that he would have been looking down the barrels of several guns. He was, therefore, under arrest.

That White was under arrest at the time of the search does not, however, dispose of the matter of the legality of the warrantless search. Superior Court’s view that a warrantless search of an automobile is permissible if it is incident to arrest is in accord with the United States Supreme Court’s view in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, a police officer stopped a car for a traffic violation and smelled marijuana. He also saw on the floor of the vehicle an envelope marked “Supergold,” a term he associated with marijuana. The officer removed the driver and three passengers from the car and placed them under arrest. He searched each of the occupants of the car and then searched the car, where he found a black leather jacket in the back seat. He unzipped one of the pockets and discovered cocaine. The United States Supreme Court held that the search of the vehicle was lawful even though the jacket was not accessible to any of the occupants of the car, who could not, therefore, retrieve any weapons from the jacket or destroy any contraband which might be contained therein. The holding in Belton is as follows:

[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

Id. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775.

One year before Belton was decided, this court had occasion to address the same question in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980). In Timko, police arrested a driver who had been operating his vehicle erratically and who, after stopping, would not open the doors or windows of the vehicle. As police attempted to gain entrance to the van, Timko reached for a zipped bag and then attempted to drive away. At that point, police broke into the van and dragged Timko from the vehicle. After Timko was searched and handcuffed, police searched the bag into which he had attempted to reach, finding two packages of marijuana and a loaded revolver. We held that the fruits of the search must be suppressed. In response to the Commonwealth’s claim that there is an “automobile exception” based on the inherent mobility of automobiles, practical problems in obtaining warrants and the diminished expectation of privacy, we stated:

In the case of luggage, no such considerations operate to diminish the citizen’s expectation of privacy. A piece of luggage is not mobile once it is taken into police custody---- Thus, a zippered valise, analogous to personal luggage, may not be searched without a warrant simply because it has been seized from an automobile.

491 Pa. at 38-39, 417 A.2d at 623.

Thus, the Timko court limited the warrantless search of an automobile incident to an arrest to areas and clothing immediately accessible to the person arrested. Further, the court made it clear that the purpose of this search is to prevent the arrestee from securing weapons or destroying contraband. Id.⁴

It is axiomatic that the Supreme Court of Pennsylvania may provide more protection for the citizens of Pennsylvania under the Pennsylvania Constitution than the federal courts provide under the United States Constitution, and it is our view that the rule of Timko is as valid today as it was fifteen years ago when Timko was decided. In fact, the thrust of Timko is even more compelling today than it was in 1980 because this court has increasingly emphasized the privacy interests inherent in Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). By contrast, the United States Supreme Court has deempha-sized the privacy interests inherent in the Fourth Amendment. As the Court stated in Belton:

[T]he justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981). As we stated in Commonwealth v. Mason, 535 Pa. 560, n. 3, 637 A.2d 251, n. 3 (1993), this court, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance than has the United States Supreme Court, and under the Pennsylvania balance, an individual’s privacy interests are given greater deference than under federal law.

We disagree, therefore, with Superior Court’s determination that White’s vehicle was permissibly searched because White was under arrest. Merely arresting someone does not give police carte blanche to search any property belonging to the arrestee. Certainly, a police officer may search the arres-tee’s person and the area in which the person is detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but otherwise, absent an exigency,⁵ the arrestee’s privacy interests remain intact as against a war-rantless search. In short, there is no justifiable search incident to arrest under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody, as stated above.⁶

Finally, it remains to consider the Commonwealth’s claim that the warrantless search should be excused because an inventory search would have disclosed the same evidence. In Timko we summarily dismissed a similar argument by reference to Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976), which held that an inventory search is permissible when the vehicle is lawfully in the custody of police and when police are able to show that the search was in fact a search conducted for the purposes of protection of the owner’s property while it remains in police custody; protection of the police against claims of lost or stolen property; and protection of the police against danger. If the search was conducted as part of a criminal investigation, it is not an inventory search. There is no doubt that the warrantless search in this case was conducted as part of a criminal investigation, and it is not, therefore, permissible as an inventory search.

The order of Superior Court is reversed.

PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., files a concurring opinion. CASTILLE, J., files a dissenting opinion. MONTEMURO, J., participates by designation as a senior judge as provided by Rule of Judicial Administration 701(f).

1 . Art. 1, § 8 provides:

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.

2 . As stated in Edmunds:

as a general rule it is important that litigants brief and analyze at least the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision, including Pennsylvania case-law;

3) related case-law from other states;

4) policy considerations, including unique issues of state and local concern, and applicability within modem Pennsylvania jurisprudence.

526 Pa. at 390, 586 A.2d at 895.

3 . In this case, the mere fact that police did not know which car would be used to conduct the drug transaction is not sufficient to qualify as an unforeseen circumstance. Police could have drafted their request for a warrant in terms that were "as particular as is reasonably possible,” Commonwealth v. Grossman, 521 Pa. 290, 296, 555 A.2d 896, 899 (1989), in order to secure the warrant.

4 . The Timko court writes:

A police officer may conduct a search of an arrestee's person and the area within an arrestee’s immediate control as a matter of course because of the ever-present risk in an arrest situation that an arrestee may seek to use a weapon or to conceal or destroy evidence.... However,

‘‘[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”

United States v. Chadwick, supra, 433 U.S. [1] at 15, 97 S.Ct. [2476] at 2485 (1977). 491 Pa. at 37, 417 A.2d at 622-23.

5 . 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, sire not part of this case.

6 . The record indicates that after White was removed from the car, he was patted down for weapons and then moved a short distance from his car under close police guard. He was not free to return to his vehicle, as a police officer testified:

Q: Did you have any concern at that time that Mr. White perhaps would run back to his vehicle?

A: When he was with me?

Q: When he was with you ten feet away by your car.

A: No. I believe I was standing in his path back to his vehicle.

Thus, whatever was contained in the vehicle was not accessible to White, and there is nothing of record to indicate that there were any exigent reasons, such as danger to police, which would justify a warrantless search of the car.