Com. v. Perry

• Decision Date: 03 June 2002
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Shawney PERRY, Appellant. Commonwealth of Pennsylvania, Appellee, v. Brett Stewart, Appellant.
• Court: Pennsylvania Supreme Court

798 A.2d 697

568 Pa. 499

COMMONWEALTH of Pennsylvania, Appellee, v. Shawney PERRY, Appellant.

Commonwealth of Pennsylvania, Appellee, v. Brett Stewart, Appellant.

Supreme Court of Pennsylvania.

Argued October 18, 2000.

Decided June 3, 2002.

Gerald A. Stein, Philadelphia, for appellant.

Catherine Lynn Marshall, Philadelphia, for appellee.

FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice CAPPY.

The issue before the court is whether exigent circumstances excused the Commonwealth's warrantless search of a vehicle, after the occupants had been removed from the vehicle and taken into police custody. I conclude that under the unique facts of this case, there existed a potential threat of deadly harm to the police, and thus, exigent circumstances that justified the Commonwealth's failure to obtain a search warrant.

As resolution of this case is fact-driven, a detailed recitation of the facts is necessary. On Saturday June 8, 1996, at approximately 3:00 a.m., Javon Jones and Bobby Mahalati were driving a GEO Tracker to Illusions, an after-hours club. At the same time, Appellant Perry was driving a white Lexus and Appellant Stewart was a passenger in the vehicle. Perry had stopped the Lexus at a green light on 7th Street which was around the corner from the club. Perry and Stewart were blocking a lane of traffic while the men conversed with some women who were in the car behind them. Jones, driving the Tracker with the top and windows down, pulled along side the Lexus as the light turned red. Stewart turned to Jones and remarked, "What the f—you looking at?" Jones and Mahalati ignored Stewart. When the light turned green, Jones drove around the Lexus and stopped in front of the entrance to Illusions. Perry pulled the Lexus along the passenger side of the Tracker. Perry asked Mahalati, "What the f___you looking at?" Perry then repeated several times, "What do you want to do? Do you want to f___us?" Mahalati responded, "All right, What ever p___." One or both of the Appellants shouted, "What? Do you want to take care of this" and "We can take care of this around the corner." Perry and Stewart then drove to the end of the block and turned left onto 8th Street.

Perry positioned the Lexus on 8th Street so as to leave only enough room for a single vehicle to pass. Jones and Mahalati drove past the Lexus, passing it on the right. Jones and Mahalati observed that both Perry and Stewart were holding guns. Mahalati threw his seat back in an attempt to protect himself while Jones attempted to speed away. Shots rang out and Mahalati lost feeling in his legs.

Jones drove around the block in an effort to seek help. Jones flagged down Philadelphia Police Officer Tyrone Forrest, who was on duty outside of Illusions. Officer Forrest observed the bullet hole in the side of the Tracker and noted blood on the seat. After summoning an ambulance, Officer Forrest broadcasted an alert over police radio at 2:59 a.m., stating that a man had been shot and that his assailants were two black males who had driven southbound on 8th Street in a two-door white Lexus.

Officer John Barker received the police broadcast. Approximately one minute later, he observed Perry and Stewart in the white Lexus which was proceeding south on 8th Street. Barker requested back up and followed. Officer Barker and Sergeant Glenn Katz, who had joined in the pursuit, ultimately stopped the men near the intersection of 11th and Federal Streets. The Lexus was blocking one of two southbound lanes of 11th Street.

The officers directed Perry and Stewart out of the car. The officers did not request that Perry turn off the engine, and thus, the motor remained running. The police frisked the men as a safety precaution but no weapons were found on their persons. The police took Jones to the stopped vehicle in an attempt to identify the assailants. Jones arrived within fifteen minutes after Officer Forrest had reported the shooting over the radio.

Upon seeing Perry and Stewart, Jones immediately exclaimed, "that's them and they have two guns." At that point, Perry and Stewart were handcuffed and placed in police vehicles. Jones informed police that at least one of the guns appeared to be an "automatic" weapon. This information was relayed to Lieutenant Thomas McDevitt who had arrived on the scene. Determining that as a matter of public safety it was imperative for the guns to be recovered, Lieutenant McDevitt requested that Officer Barker search the Lexus for the weapons.

Officer Barker returned to the vehicle and shined a flashlight into the passenger compartment. He noticed that the floor mat on the driver's side was askew. Concerned that one of the guns may be lying beneath the mat, Officer Barker lifted the mat and uncovered a 9mm Helwan, loaded with six bullets. Officer Barker then searched under the passenger side floor mat and uncovered a .22 Beretta. Once the weapons were removed, the Lexus was driven to police headquarters. No other search was made of the vehicle, and the vehicle was immediately driven to an impoundment area.

Perry and Stewart were held for trial for attempted murder, aggravated assault, criminal conspiracy, and related charges. On March 9, 1998, a joint suppression motion was filed in which Perry and Stewart claimed that the police had acted illegally in conducting a warrantless search of the Lexus and in seizing the guns. The court suppressed the weapons seized from the Lexus finding that the police were not permitted to search the vehicle without a search warrant. More specifically, the suppression judge noted that at the time the police entered the Lexus, both Perry and Stewart had been handcuffed and taken into police custody. Thus, no exigent circumstances were present which would justify the warrantless search.

The Commonwealth appealed to the Superior Court, certifying that the suppression of the weapons had substantially handicapped its prosecution of Perry and Stewart.¹ The Superior Court reversed the order of the suppression court. The Superior Court found that exigent circumstances existed with respect to public safety and with respect to police safety that excused the warrantless search of the Lexus. The Superior Court remanded the matter for further proceedings. This court granted allocatur and the cases were consolidated for review.

The issue before the court is whether exigent circumstances excused the warrantless search of the Lexus, thus rendering the search constitutionally reasonable.²

As neither Perry nor Stewart contends that the search was violative of the Fourth Amendment to the United States Constitution, the starting point in resolving this issue is the Pennsylvania Constitution. Article I, Section 8 of the Pennsylvania Constitution sets the parameters of governmental searches and seizures of the citizens of our Commonwealth, their homes, and their possessions:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const., art. I, § 8. This court has consistently embraced the principle that Article I, Section 8 of the Pennsylvania Constitution requires that searches by the state be permitted only upon obtaining a warrant issued by the neutral and detached magistrate. Thus, as a general proposition, warrantless searches are unreasonable for constitutional purposes. Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 998 (1999).

However, this court has recognized a number of exceptions from this general warrant requirement.³ Under certain limited circumstances, the failure on the part of police to obtain a warrant prior to a search will be excused and the subsequent search will not be deemed violative of the privacy protections granted by our Constitution. For example, under Pennsylvania law, for a warrantless search of a motor vehicle to be valid, there must be a showing of both probable cause and exigent circumstances. Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995).⁴

The parties in this case have focused on this court's opinion in White. Each party contends that White compels a ruling in their favor. Thus, an in-depth review of that case to determine its impact on this appeal is appropriate.

White involved a warrantless search of an automobile for drugs. In White, the police were informed that William White and another individual, Henry Bennett, had a large supply of cocaine and that they were expected to make a sale of the drugs on a particular date. Moreover, the police understood that the cocaine was being moved back and forth between White's residence and Bennett's residence. The police obtained a search warrant for Bennett's residence, vehicle, and person and obtained a warrant for the search of White's residence and person. However, the police failed to obtain a warrant for White's vehicle. As fate would have it, White drove his vehicle into the stakeout area and an unidentified man entered White's vehicle. As this was happening, Bennett also drove by and passed White's car a number of times. Bennett then left the area and the police took White and his passenger into custody. Without obtaining a warrant for White's automobile, the police then entered his vehicle and retrieved a bag containing cocaine as well as a marijuana cigarette that was in plain view on the vehicle's console. The suppression court suppressed the evidence. The Superior Court reversed.

On appeal, this court first reiterated the general rule that a warrant is required before the police may engage in the search of an automobile. The court then proceeded to discuss four exceptions to the warrant requirement. Three of the exceptions considered exigent...