Com. v. Pleummer

• Decision Date: 06 January 1993
• Citation: 617 A.2d 718,421 Pa.Super. 51
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Alberto PLEUMMER, Appellee.
• Court: Pennsylvania Superior Court

Page 718

617 A.2d 718

421 Pa.Super. 51

COMMONWEALTH of Pennsylvania, Appellant, v. Alberto PLEUMMER, Appellee.

Superior Court of Pennsylvania.

Argued May 28, 1992.

Filed Oct. 30, 1992.

Reargument Denied Jan. 6, 1993.

Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.

MaryAnn F. Swift, Philadelphia, for appellee.

Before CIRILLO, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, which suppressed the physical evidence seized by the police. ¹ The lower court concluded that probable cause to perform a warrantless search of the trunk of appellant's automobile did not exist and, therefore, the fruits of that search had to be suppressed. We agree with the lower court and affirm its suppression order.

When passing on a challenge to a decision of a suppression court, we may consider only the evidence of defense witnesses and so much of the Commonwealth's evidence that, read in the context of the record as a whole, remains uncontradicted. We are limited primarily to question of law, and we are bound by the suppression court's findings of fact, provided those findings are supported by the record. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989). Governed by the foregoing standard, our review of the record reveals the following facts:

On August 13, 1990, the police received an anonymous telephone call concerning alleged drug trafficking activity on the 3200 block of North Randolph Street in Philadelphia. The caller stated that a balding, bearded Hispanic male with dark complexion, wearing a dark blue t-shirt and blue shorts, was selling cocaine from a shopping bag which was kept in a blue Pontiac automobile. The anonymous caller also stated that the Pontiac had no license plates and was parked in front of 3249 North Randolph Street.

Two police officers, travelling in a marked police vehicle, were immediately dispatched to the area which was known to the officers as an area where drug trafficking was prevalent. When they arrived at the scene approximately 10 minutes later, the officers observed appellee standing by a blue Pontiac. Appellee matched the general description given by the caller. Appellee was showing another male the contents of a grocery bag. As the police approached in their marked vehicle, appellee looked at them, rolled up the bag, tossed it into the open trunk of the Pontiac, closed the lid of the trunk and began to walk away. At no time could the officers see the contents of the grocery bag, nor did they observe appellee engage in any transactions indicative of narcotics trafficking.

As appellee walked away from the Pontiac, the officers stopped appellee, frisked him, took the key to the Pontiac from him, returned to the vehicle and opened the trunk. The officers then removed the shopping bag from the trunk and discovered it contained 1005 small packets of cocaine. Appellee was placed under arrest and charged with possession of cocaine with intent to deliver.

Prior to trial, appellee filed a motion to suppress the physical evidence seized on the grounds that the officers lacked probable cause to perform a warrantless search of the trunk of the Pontiac. The suppression court agreed with appellee and, in part, reasoned:

Well, I rue the day when an individual has a bag in his hands and looks up and places the bag in the trunk of his car and walks away and can be considered to be engaging in suspicious behavior....

So what we have here is an anonymous tip, no surveillance by the police.

We do not believe the conduct that the defendant engaged in in any way created any suspicious behavior.

N.T., 8/22/91, p. 20.

In deciding to suppress the evidence, the court rejected the Commonwealth's argument that the motor vehicle exception to the warrant requirement validated the officers' actions.

Instantly, the Commonwealth does not contend that the officers had probable cause to arrest appellee. Rather, the Commonwealth contends that the officers had probable cause to conduct a warrantless search of the Pontiac pursuant to the automobile exception to the warrant requirement first set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Further, the Commonwealth asserts that a "lesser standard of probable cause" is employed when reviewing searches of motor vehicles. Commonwealth's Brief, p. 15. The Commonwealth contends that probable cause to search a motor vehicle is defined as "a basis for believing that evidence of a crime is concealed within the vehicle." Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985).

The Commonwealth quotes the following passage from Milyak, 493 A.2d at 1349, as the proper standard of review herein:

To justify ... a [warrantless] search ..., an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.

Milyak, 493 A.2d 1346, quoting Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971) (emphasis added); Commonwealth v. Shaffer, 447 Pa. 91, 104, 288 A.2d 727, 735 (1972) (quoting Lewis ); Commonwealth v. Neary, 355 Pa.Super. 92, 100, 512 A.2d 1226, 1230 (1986) (quoting Lewis ), appeal denied 515 Pa. 576, 527 A.2d 537 (1987); Commonwealth v. Trunzo, 404 Pa.Super. 15, 26, 589 A.2d 1147, 1153 (1991) (quoting Shaffer quoting Lewis ).

The oft-quoted passage from Lewis, supra, was derived explicitly by our Supreme Court from their prior decision in Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). Lewis, 275 A.2d at 52. In Dussell, 266 A.2d at 661, our Supreme Court stated:

We recognize that a special rule prevails as to the stopping and searching of moving vehicles suspected of being used in criminal activity. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). However, even where the search of a moving vehicle is involved, the officers must have independent probable cause to believe that a felony has been committed, and must have a basis for believing either that evidence of the crime is concealed in the vehicle or that there are weapons therein accessible to the occupants of the car. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).

Clearly, Dussell, supra, requires that the police have probable cause to believe that a felony has been committed and that evidence of that same felony is contained within the car. However, the quote from Lewis, supra, seems to permit a warrantless search where the officer merely has "a basis for believing that evidence of a crime is concealed within the vehicle". ²

Regardless of the quote from Lewis, supra, we are certain that the level of probable cause necessary for a search of an automobile is the same as that which would be necessary to obtain a warrant from an issuing magistrate. See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991). It is true that "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." Milyak, 493 A.2d at 1349, quoting Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1971). However, the fact that the warrant requirement of the Fourth Amendment is relaxed for searches of vehicles does not likewise relax the need for probable cause prior to the search. The United States Supreme Court made this clear when, in United States v. Ross, 456 U.S. 798, 808-809, 102 S.Ct. 2157, 2164-2165, 72 L.Ed.2d 572, 583-584 (1982), it stated:

In short, the exception to the warrant requirement established in Carroll--the scope of which we consider in this case--applies only to searches of vehicles that are supported by probable cause. In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.

See also, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991) ("The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained"). The scope of a warrantless search of a motor vehicle is "no broader and no narrower than a magistrate could legitimately authorize." Ross, 456 U.S. at 825, 102 S.Ct. at 2173.

In Rodriguez, supra, our Supreme Court was faced with the question of whether probable cause for a warrantless search of an automobile existed. In answering that question, our high Court employed the following standards:

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 Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The benchmark of a warrantless [search of an automobile] 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 [search], and of which h...