Commonwealth v. Loughnane

Decision Date22 November 2017
Docket NumberNo. 72 MAP 2016,72 MAP 2016
Citation173 A.3d 733
Parties COMMONWEALTH of Pennsylvania, Appellee v. Daniel F. LOUGHNANE, Appellant
CourtPennsylvania Supreme Court

Hugh J. Burns Jr., Esq., for Amicus Curiae Pennsylvania District Attorneys Association.

Philip Gelso, Esq., for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, LLP, Leonard Sosnov, Esq., for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

Peter Paul Olszewski Jr., Esq., Scartelli Olszewski, P.C., Michael J. Kenny, Esq., for Appellant.

James L. McMonagle, Esq., Stefanie Joy Salavantis, Esq., Luzerne County District Attorney's Office, Samuel Michael Sanguedolce, Esq., for Appellee.




We granted the petition for allowance of appeal filed by Daniel F. Loughnane ("Loughnane") to determine whether the Superior Court erred by holding that the federal automobile exception, adopted by this Court in Commonwealth v. Gary, 625 Pa. 183,91 A.3d 102 (2014),1 permitted the seizure of Loughnane's truck while it was parked in his residential driveway. Commonwealth v. Loughnane, 128 A.3d 806, 817 (Pa. Super. 2015). For the reasons that follow, we conclude that Gary does not operate to permit the warrantless seizure of a vehicle parked on a defendant's residential driveway. We therefore vacate and remand for further proceedings consistent with this Opinion.

I. Facts

At approximately 2:23 a.m. on July 24, 2012, a large, dark-colored truck with a loud exhaust system ran over and killed nineteen-year-old Rebecca McCallick while she lay in the roadway on Hazle Street in Wilkes–Barre, Pennsylvania. This happened in front of the apartment she shared with her boyfriend, John Schenck, III ("Schenck"), who observed the accident from their second story window. The truck did not stop. Schenck provided several statements to members of the Wilkes–Barre Police Department, describing the truck in question and identifying a vehicle in a photograph shown to him by police that he believed "looked like" the truck that struck his girlfriend. N.T., 2/18/2014, at 97.

On August 8, 2012, Schenck's father came across a truck parked in a residential driveway on Liberty Street in Ashley, that he believed fit Schenck's description. Detective David Sobocinski instructed him to have Schenck view the vehicle. Schenck's father took a photograph of the truck and showed it to Schenck, who identified it as the vehicle involved in the accident.

That afternoon, Detective Sobocinski went to the address where Schenck's father had observed the truck. He learned that Loughnane owned the residence and the truck parked in the driveway. Unable to reach Loughnane at home, the detective went to various locations in an attempt to find him or to obtain contact information for him—including Loughnane's place of business, his neighbors' homes, and the home of Loughnane's parents—all without success. During this time, Detective Sobocinski left the truck unattended.

Detective Sobocinski then contacted the Assistant District Attorney on call for direction as to how to proceed. The detective had been made aware that the keys to the truck were somewhere in the vehicle, and he also stated his concern that forecasted rain could compromise any forensic evidence that remained on the truck from the July 24 incident. According to Detective Sobocinski, obtaining a search warrant would have required that he "contact the District Attorney's Office and go over things, [and] type up the actual affidavit that goes along with the search warrant," which he characterized as "time consuming," taking "two to three hours." Id. at 169–70. Although Hanover Township sent a police officer to Loughnane's house in response to Detective Sobocinski's request for assistance, he did not ask the officer to wait with the car while he obtained a warrant to seize the vehicle. Instead, early in the morning on August 9, 2012, "numerous hours" after first arriving at Loughnane's house, police seized the truck without first obtaining a warrant and had it towed to the Wilkes–Barre Police garage. Id. at 172.

Four days later, the detective sought and obtained a warrant to search Loughnane's vehicle. The search of the vehicle revealed no physical or forensic evidence. On August 14, 2012, Schenck came to the police station and identified the truck by sight and sound as the vehicle that was involved in the accident.

II. Proceedings Before the Court of Common Pleas

The Commonwealth charged Loughnane with accidents involving death or personal injury, 75 Pa.C.S. § 3742(a). On July 30, 2012, Loughnane filed an omnibus pretrial motion contending, inter alia, that police illegally seized his truck from his private property without a warrant and that as a result, all evidence obtained from the search after the seizure must be suppressed as fruits of the poisonous tree. At that time, warrantless searches and seizures of motor vehicles were presumptively unlawful pursuant to what has been referred to as Pennsylvania's "limited automobile exception," unless police had (1) probable cause to believe that the vehicle was itself or contained evidence of criminal activity, and (2) exigent circumstances beyond the mobility of the vehicle that precluded them from obtaining a warrant. See, e.g., Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275, 1280 (2007). Then and now, the existence of both probable cause and exigent circumstances are also required before police may conduct a warrantless search or seizure of property from a person's home. See, e.g. Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 664 (1999) ; Commonwealth v. Johnson, 474 Pa. 512, 379 A.2d 72, 75 (1977) ; Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014).

Before the suppression court, the Commonwealth conceded that police had seized Loughnane's truck from his private property, but contended that exigent circumstances permitted entry upon his private property and the seizure of the truck therefrom without a warrant. See N.T., 2/18/2014, at 164. Following a hearing on February 18, 2014, the suppression court disagreed, concluding that there were no exigent circumstances to justify the warrantless seizure of Loughnane's truck from his residential driveway, rendering the seizure illegal under Article I, Section 8 of the Pennsylvania Constitution.2 Suppression Court Order, 3/17/2014, ¶¶ 36–38. The court suppressed the visual and sound identification of the truck made by Schenck, concluding that they were the fruits of the unlawful seizure. Id., ¶¶ 42–45.

III. Commonwealth Appeal to the Superior Court

On March 28, 2014, the Commonwealth appealed this interlocutory order to the Superior Court. See Pa.R.A.P. 311(d). After the Commonwealth filed its notice of appeal, but before the Commonwealth filed its brief in the Superior Court, this Court decided Gary. In Gary, a majority of the Court adopted the federal automobile exception to the warrant requirement, albeit without any majority rationale for doing so.3 See generally, e.g., Robinson Twp. v. Commonwealth, 147 A.3d 536, 547–49 (Pa. 2016) (explaining the precedential aspects of our prior decision in Robinson Twp. v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (2013), which produced, in part, a majority holding but not a majority opinion). The federal automobile exception permits the search and/or seizure of a vehicle without a warrant as long as police have probable cause to believe the vehicle contains (or is itself) evidence of criminal activity. The federal automobile exception "has no separate exigency requirement." See, e.g., Maryland v. Dyson, 527 U.S. 465, 466–67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam).

In its brief filed in the Superior Court, the Commonwealth did not raise the applicability of Gary. Nor did it argue for the application of the pre– Gary"limited automobile exception" extant in Pennsylvania at the time of the seizure and the hearing before the suppression court. Instead, before the Superior Court, the Commonwealth's sole argument was that although Loughnane's truck was seized from the curtilage4 of the home, exigent circumstances (i.e., the mobility of the vehicle and the possibility of inclement weather) existed to permit the warrantless seizure. Commonwealth's Superior Court Brief at 21 ("These exigent circumstances justified entry upon the curtilage."). To advance its argument, the Commonwealth relied exclusively on the Superior Court's prior curtilage jurisprudence. Id. at 19–21 (citing Commonwealth v. Simmen, 58 A.3d 811, 815–16 (Pa. Super. 2012) (holding, based on the features of the driveway at issue there, the property did not constitute curtilage); Commonwealth v. Gibbs, 981 A.2d 274, 280 (Pa. Super. 2009) (same, for the front porch at issue); Commonwealth v. Fickes, 969 A.2d 1251, 1259 (Pa. Super. 2009) (finding that the garage in question constituted curtilage, but that the warrantless entry therein by police was supported by probable cause and exigent circumstances)).

The Superior Court, however, held as a matter of law that a driveway can never constitute curtilage. Loughnane, 128 A.3d at 817. In support of this conclusion, the Superior Court relied upon Simmen. Although Simmen held that the driveway in question did not constitute curtilage based on an analysis of its particular features,5 the Superior Court in this case cited it for the blanket proposition that "[c]urtilage ... has not been extended to an individual's driveway." Loughnane, 128 A.3d at 816.

The Superior Court then considered, as an issue of first impression, whether the automobile exception applies to vehicles parked in a defendant's private driveway. In concluding that the automobile exception applied, the court relied principally on a decision by the Supreme Judicial Court of Massachusetts, Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 580 N.E.2d 1014 ...

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