Commonwealth v. Gary

CONCURRING OPINION BY

DONOHUE, J.:

I join in the learned Majority’s opinion, as I agree that the Commonwealth offered no proof of exigent circumstances sufficient to justify a warrantless search underneath the hood of Appellant’s vehicle. I write separately to emphasize that in this case, which does not involve application of the plain -view doctrine, Pennsylvania’s limited automobile exception requires a showing of actual exigency. The Commonwealth’s insistence that the treatment of the exigency requirement in Commonwealth v. McCree, 592 Pa. 238, 252, 924 A.2d 621, 630 (2007), applies to the current non-plain view case misstates the current status of Pennsylvania law in this area.

In Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007), our Supreme Court’s most recent decision on this topic, restated Pennsylvania’s limited automobile exception as follows:

Warrantless vehicle searches in this Commonwealth must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility; ‘one without the other is insufficient.’ This dual requirement of probable cause plus exigency is an established *809part of our state constitutional jurisprudence. Id. at 328, 935 A.2d at 1280.

Id. at 328, 935 A.2d at 1280.

With regard to exigency, the Supreme Court in Hernandez while noting that this requirement “has been the subject of many of this Court’s opinions, some of which with multiple varying expressions with no clear majority,” id. turned to its prior decision in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), in which the Court identified two situations that satisfied the exigency requirement under the limited automobile exception: (1) potential danger to police or others, and (2) absent an immediate warrantless search, the occupants of the vehicle are likely to drive away and the contents of the automobile search may never again be located by police. Id. at 51-52, 669 A.2d at 900; see also Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87 (1999) (“The police had two choices: either stop the vehicle and search it without a warrant, or allow Luv to continue on his way, possibly resulting in the disappearance of the evidence, and in the introduction of a substantial amount of drugs to their community.”). Subsequent to White and Luv this Court has expressed a similar understanding of what is necessary to satisfy the exigency requirement under Pennsylvania’s limited automobile exception: “Exigent circumstances arise where the need for prompt police action is imperative, either because evidence is likely to be destroyed ... or because there exists a threat of physical harm to police officers or other innocent individuals.” Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa.Super.2008) (quoting Commonwealth v. Stewart, 740 A.2d 712, 715 (Pa.Super.1999), affirmed, 568 Pa. 499, 798 A.2d 697 (2002)), appeal denied, 599 Pa. 706, 962 A.2d 1194 (2008).

In Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007), our Supreme Court established a different definition of exigency under the limited automobile exception in cases applying the plain view doctrine. In McCree a case in which police officers seized pill bottles in plain view inside a vehicle, the Supreme Court did not apply the White-Luv definition of exigency, but rather decided that exigent circumstances were established there because the police lacked advance notice that McCree would be the target of an investigation prior to the stop, thus precluding the obtaining a warrant in advance of the search and seizure. Id. at 255, 924 A.2d at 531. Although the lead opinion in McCree garnered only three of the Court’s seven voting members, Justice Castille’s opinion concurring in the result demonstrated agreement with the majority’s conclusion that in a plain view case, lack of advance notice and opportunity to obtain a warrant is sufficient exigency to justify a warrant-less search. Id. at 261, 924 A.2d at 635 (Castille, J., concurring).

In Hernandez however, which was a non-plain view warrantless vehicle search case decided just six months after McCree our Supreme Court returned to the White-Luv test to determine exigency under the limited automobile exception. Hernandez 594 Pa. at 328-33, 935 A.2d at 1280-83. For this reason, and based upon a detailed examination of Justice Castille’s concurring opinions in both McCree and Hernandez in Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.2011) (en banc), this Court, sitting en banc, unanimously concluded that McCree has no precedential value regarding the status and parameters of the limited automobile doctrine except in cases applying the plain view doctrine. Id. at 556. Based upon this Court’s holding in BroiAM the Commonwealth’s contention that McCree’s “lack of advance notice” provision applies in this non-plain view case must be rejected.

*810Instead, under the White-Luv-Heman-dez definition of exigency under the limited automobile exception in non-plain view cases, here the Commonwealth was required to show either some potential for danger to the police or others, or the possibility of the dissipation of evidence absent an immediate warrantless search. I agree with the Majority that the Commonwealth made no such showing, and that as a result the case must be remanded for a new trial at which the evidence obtained during the warrantless search may not be admitted.