Com. v. Labron

• Decision Date: 29 December 1995
• Citation: 543 Pa. 86,669 A.2d 917
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edwin LABRON, Appellant.
• Court: Pennsylvania Supreme Court

Page 917

669 A.2d 917

543 Pa. 86

COMMONWEALTH of Pennsylvania, Appellee, v. Edwin LABRON, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 25, 1995.

Decided Dec. 29, 1995.

John W. Packel, Stuart Lev, Philadelphia, for E. Labron.

Catherine Marshall, Ronald Eisenberg, Joan Weiner, Philadelphia, for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

Appellant, Edwin Labron, appeals from a memorandum opinion and per curiam order of the Superior Court reversing an order of the Court of Common Pleas of Philadelphia County suppressing evidence seized during a warrantless search of an automobile.

We granted permission for this appeal in order to determine whether the Commonwealth must establish the existence of exigent circumstances in order to justify the warrantless search of an automobile, or if the "automobile exception" to the warrant requirement requires only that the Commonwealth establish the existence of probable cause. Because we believe that the automobile exception requires a showing of both probable cause and exigent circumstances, we hold that the Superior Court incorrectly applied the automobile exception to this case.

On August 24, 1990, Officer Gerald Nimmo of the Philadelphia Police Department, assigned to the narcotics unit, established surveillance of the 900 block of Auburn Street in the City of Philadelphia from a confidential location. During his surveillance, he observed Appellant and another male, Santiago, conduct transactions in which Appellant and Santiago would accept cash from individuals on the street in exchange for small plastic bags filled with white powder. Based upon his experience as a police officer, he believed that the packets were filled with cocaine and that the exchanges constituted the sale of illegal drugs. A short while later, Officer Nimmo observed a third male, Melendez, approach Appellant and Santiago. The three men proceeded to a blue Lincoln automobile which was parked on the south side of Auburn Street.

With a key, Melendez opened the trunk of the car, reached inside, and retrieved a bag. From the bag, Melendez produced two other bags, giving one each to Appellant and Santiago. The bags contained smaller packets filled with white powder. In exchange for the bags, Appellant and Santiago gave Melendez currency. Melendez closed the trunk while Appellant and Santiago returned to the street to continue what Officer Nimmo believed to be drug transactions.

A short time later, the three men again met and again approached the blue Lincoln, where Melendez repeated the exchange of bags containing smaller packets filled with white powder for cash from Appellant and Santiago. A few minutes afterward, Melendez approached Santiago and handed him a set of keys. Thereafter, Melendez got into another car, a blue Ford stationwagon, and drove away. Appellant and Santiago continued to transact sales.

Approximately ten minutes after Melendez had left, a blue Toyota pulled into the 900 block of Auburn Street. Two men exited the vehicle and approached Santiago. Appellant approached the group and Santiago gave him a set of keys. Appellant went to the blue Lincoln and used the keys to open its trunk. One of the men from the Toyota retrieved a plastic bag from the passenger side of the Toyota and gave it to Appellant, who was waiting at the blue Lincoln. Appellant took the bag and placed it in the trunk, which he then closed, returning the keys to Santiago.

The two men from the Toyota got into their automobile and drove away. Back-up officers who were waiting a few blocks away stopped the blue Toyota and arrested its two occupants. Other back-up officers quickly arrived on Auburn Street and arrested Appellant and Santiago. At that point, Officer Nimmo directed another officer to open the trunk of the blue Lincoln. Upon doing so, the officers found two plastic bags and a plastic sandwich bag, all filled with what proved to be cocaine.

Appellant, charged with delivery of a controlled substance ¹ and criminal conspiracy, ² filed a motion seeking to suppress the evidence obtained from the warrantless search of the automobile. After a hearing, the trial court granted Appellant's motion, holding that although Officer Nimmo had probable cause, the Commonwealth had failed to establish the existence of exigent circumstances in order to justify the warrantless search.

The Commonwealth appealed the suppression order to the Superior Court which, concluding that the trial court had incorrectly analyzed the automobile exception to the warrant requirement, reversed the suppression order. The Superior Court determined that the law does not require the existence of both probable cause and separate exigent circumstances as prerequisites to a valid warrantless search of an automobile. Rather, the court found that "[t]he automobile exception to the warrant requirement demands only that an officer have probable cause to believe that evidence of a crime or contraband will be found within the vehicle...." Commonwealth v. Labron, No. 01276 Philadelphia 1992, slip op. at 7-8, 428 Pa.Super. 616, 626 A.2d 646 (Pa.Super., January 6, 1993) (footnote omitted). The court further held that the inherent mobility of an automobile, without more, is sufficient to justify a warrantless search once probable cause to search the vehicle has been established. Id. at 9.

In this appeal, Appellant argues that the Superior Court erred in concluding that once probable cause exists to conduct a search, the automobile exception is a per se exception to the warrant requirement. Appellant additionally argues that the trial court correctly determined that because the police had adequate information and time within which to secure a warrant, no exigent circumstances existed to justify the warrantless search of the vehicle.

As a preliminary matter, even though recognizing that the Commonwealth concedes that Appellant has standing to contest the search in question, the dissent contends that Appellant does not have "such standing as to have a right to be before this or any Court to seek suppression of the evidence in issue." Dissent at 104. The dissent further notes that even if Appellant does have standing, he nevertheless does not have a reasonable expectation of privacy sufficient to warrant suppression of the evidence. It is clear, however, that issues not raised in the lower courts, or raised at the trial level but not preserved on appeal, will not be considered by an appellate court. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978); Pa.R.A.P. 302(a).

Addressing a similar argument that a petitioner lacked an expectation of privacy sufficient to prevail on a fourth amendment claim, the United States Supreme Court, noting that the argument had not been raised in the courts below, concluded that the government had lost its right to challenge petitioner's legitimate expectation of privacy. Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981). See also Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993), alloc. denied, 539 Pa. 675, 652 A.2d 1321 (1994) (wherein the Superior Court, en banc, recognized that when standing to contest police conduct is not raised at the suppression hearing, a belated attempt to raise the issue on appeal must be rejected.)

In this case, during the pre-trial motions, the Commonwealth argued that even though the two men from the Toyota had standing, they did not have a sufficient expectation of privacy to contest the search. At that point, the Commonwealth noted that although its argument was directed at the suppression motions filed by the men in the Toyota, it also included Appellant. Specifically, the Commonwealth stated that "whether [Appellant] has a reasonable expectation of privacy based on [the fact that he used a key to open the trunk], we would dispute that." (N.T. III at 5).

Nevertheless, after the grant of suppression on Appellant's motion and after having been ordered to file a full and complete statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), the Commonwealth submitted the following issue:

Did the lower court err in granting defendant's motion to suppress based on a determination that police officers cannot search a vehicle without first obtaining a search warrant, even though probable cause exists to believe the vehicle contains contraband?

Consequently, the Commonwealth abandoned its claim that Appellant lacked a reasonable expectation of privacy sufficient to challenge the police conduct.

Where a defendant is ordered to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and fails to raise a particular matter within that statement, the defendant is deemed to have waived that point of error on appeal. Commonwealth v. Warren, 332 Pa.Super. 410, 481 A.2d 681 (1984); Pa.R.A.P. 1925(b).

Commonwealth v. Phillips, 411 Pa.Super. 329, 342, 601 A.2d 816, 822 (1992), aff'd, 534 Pa. 423, 633 A.2d 604 (1993). Moreover, as the Commonwealth specifically failed to raise this issue, it was not addressed by either the Court of Common Pleas or the Superior Court and thus, effective appellate review is precluded. See Commonwealth v. Montgomery, 513 Pa. 138, 518 A.2d 1197 (1986), cert. denied, 480 U.S. 935, 107 S.Ct. 1579, 94 L.Ed.2d 769 (1987) (this Court refused to address an exclusionary rule issue which the Commonwealth failed to adequately preserve). Therefore, the standing and expectation of privacy issues were waived, and as such, they do not merit review.

It is well established that when a motion to suppress has been filed, the Commonwealth bears the burden to establish by a preponderance of the evidence that the evidence is admissible. ³ Commonwealth v. Johnsonna, 420 Pa.Super. 434, 438, 616 A.2d 1376, 1378 (1992), alloc. denied, 533 Pa. 657, 625 A.2d 1191. Furthermore, while reviewing the ruling...