Commonwealth v. Perry

Justice SAYLOR,

concurring.

I agree with Mr. Justice Castille that the scope of protection afforded by Article I, Section 8 of the Pennsylvania Constitution in the arena of automobile searches is a matter less settled than the majority opinion. portrays.1 This Court’s jurisprudence has nevertheless required both probable cause and exigent circumstances to justify a warrantless search, see Commonwealth v. Luv, 557 Pa. 570, 581, 735 A.2d 87, 93 (1999), and, at least in broad overview, it would not appear to have been the Court’s intent to dilute the exigent circumstances requirement by defining it solely in terms related to the development of probable cause.2

It is preferable, in my view, to consider the term exigent circumstances as “purposely imprecise,” State v. Cooke, 163 N.J. 657, 751 A.2d 92, 102 (2000), as it is informed by the individualized facts of the case. See id. Additionally, it is *537important to recognize that the exigency required to support a warrantless search varies according to the privacy expectation connected with the place to be searched. See generally 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.2(a), at 458, § 7.2(b), at 481 (3d ed.1996). Accordingly, courts have described the exigencies required to support a vehicle search in terms less demanding than those necessary to support a search of a home, based upon the lesser expectation of privacy associated with the former. Accord Commonwealth v. Labron, 543 Pa. 86, 95, 669 A.2d 917, 921 (1995) (recognizing as a matter of state constitutional jurisprudence that “one’s expectation of privacy with respect to an automobile is significantly less than that relating to one’s home or office” (emphasis in original; citation omitted)), rev’d, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam), on remand, 547 Pa. 344, 690 A.2d 228 (1997) (plurality opinion) (reaffirming on independent state grounds). See generally LaFave, Search and Seizure § 7.2(a), at 458, § 7.2(b), at 481. Specifically, this Court has indicated, in the automobile paradigm, that sufficient exigency is present where, because of the attending circumstances, it was not reasonably practicable for the police to obtain a warrant. See Commonwealth v. Baker, 518 Pa. 145, 148, 541 A.2d 1381, 1383 (1988); Commonwealth v. Ionata, 518 Pa. 472, 478, 544 A.2d 917, 920 (1988) (opinion in support of affirmance).3

*538Here, the police did not receive information concerning the shooting sufficiently in advance to secure a warrant, the vehicle was situated in the middle of the street and running, and given the concern for locating loaded firearms before moving the vehicle or ordering a search of the surrounding area, it was not reasonably practicable to obtain a warrant. More important, the scope of the search was limited to the exigency justifying its instigation, namely, the seizure of the loaded firearms. See generally Commonwealth v. Zhahir, 561 Pa. 545, 558, 751 A.2d 1153, 1160 (2000) (explaining that “a warrantless search is circumscribed by the exigency justifying its initiation”). I therefore agree that the warrantless search was justified.

. I believe that a portion of the uncertainty embodied in this Court’s prior decisional law is due to fundamental changes in Fourth Amend- • ment jurisprudence effectuated by the United States Supreme Court. See infra note 3.

. Certainly, as reflected in Justice Castille’s concurring opinion, the Court has employed language in some instances that would support his considered view in this regard.

. Notably, this standard parallels the language employed by the United States Supreme Court in the formative stages of the automobile exception. See Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925) (stating that "in cases where the securing of a warrant is reasonably practicable, it must be used ...”). As the majority opinion indicates, the United States Supreme Court eventually broadened the exception by eliminating the exigency requirement, see California v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 2069-70, 85 L.Ed.2d 406 (1985), while this Court has adhered to the original formulation. It is also noteworthy that in those jurisdictions departing from the more recent construct of the motor vehicle exception under the Fourth Amendment, the required exigency has been couched in terms similar to those articulated in Carroll. See, e.g., State v. Elison, 302 Mont. 228, 14 P.3d 456, 468 (2000) (explaining exigent circumstances as meaning that “it was not practicable under the circumstances to obtain a warrant’’); Cooke, 751 A.2d at 102 (stating that *538"exigency in the constitutional context amounts to circumstances that make it impracticable to obtain a warrant”).