Commonwealth v. Rodriguez

FLAHERTY, Justice,

dissenting.

I dissent. The vehicle search which yielded evidence leading to the conviction of the appellant, Gloria Rodriguez, was conducted under circumstances where a warrant could reasonably have been obtained. Inasmuch as this search was conducted without a warrant, suppression of the evidence is required.

On November 15, 1985, police were notified by two confidential informants that, later that same day, appellant and her husband would be driving to York, Pennsylvania to sell cocaine. The informants had, on previous occasions, told police that appellant and her husband were driving into the area to sell drugs. Police observed appellant’s vehicle, *277bearing a New Jersey license plate, in York that day and were told by one of the informants that appellant had delivered cocaine at the residence of one Stephen Conn. On November 23, 1985, one of the informants again notified police that appellant would be driving to York to sell drugs. Later that day, police again observed appellant’s vehicle in York.

Between 10:00 a.m. and 10:30 a.m. on November 27, 1985, police were told by one of the informants that appellant would be driving into York to sell cocaine that day. The informant stated that appellant frequently drove different vehicles on drug-dealing trips to York, and that it was uncertain whether the same vehicle would be used that had been observed on previous occasions. The informant also stated that appellant always carried a firearm, and that appellant and her husband always made distributions of cocaine as rapidly as possible to minimize the time that they held cocaine in their possession. In response to this information, police set up a surveillance point along a highway leading into York. Shortly after noon, police observed appellant’s vehicle travelling past the surveillance point. It was the same vehicle that had been observed on November 15 and 23. Police were unable to follow the vehicle, due to traffic conditions; hence a search for the vehicle was soon commenced. Around 1:45 p.m., police found the vehicle parked in front of the residence of Stephen Conn. At 2:00 p.m., appellant and her husband departed from the Conn residence in the vehicle. Within several minutes, and without having obtained a warrant, police stopped the vehicle and conducted a preliminary search. The search yielded cocaine and a large sum of money, $1,500.00. Appellant and her husband were placed under arrest. Police returned to the Conn residence and searched it.* Appellant’s vehicle *278was then taken to a police barracks, where an inventory-search was conducted. The inventory search disclosed additional drugs and drug paraphernalia, including substantial quantities of cocaine and heroin, as well as a gun.

Police testimony at the suppression hearing indicated that, although police believed they had probable cause to obtain a warrant upon learning from their informant that appellant would be entering the York area on November 27, 1985, a warrant was not obtained because there was uncertainty regarding the exact type of vehicle that appellant would be driving as well as uncertainty regarding the exact location where appellant’s vehicle would ultimately be found. For example, one officer testified:

Q. So, you’re telling the Court the reason you didn’t get a search warrant was because you didn’t know which vehicle they were driving?
A. Yes.
Q. You had no information this day that they were going to be at the Conn house?
A. Correct.
Q. You went there because someone had told you that they had dealt with him or he had dealt with them in the past, correct?
A. Correct.

Nevertheless, under the circumstances presented, police had ample grounds and sufficient opportunity to obtain a search warrant. Evidence obtained through the warrant-less search should, therefore, be suppressed.

This Court has repeatedly addressed the question of whether, and under what circumstances, search warrants are required when vehicles are to be searched. Recently, in Commonwealth v. Ionata, 518 Pa. 472, 477, 544 A.2d 917, 919-20 (1988) (Opinion in Support of Affirmance), we stated:

*279[S]ubject to certain carefully delineated exceptions ... the presence of exigent circumstances, which create practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, is necessary to justify a warrantless vehicle search. See Commonwealth v. Cockfield, 431 Pa. at [639] 643, 246 A.2d [381] at 383 [ (1968) ] (“Whenever practicable, the police must obtain advance judicial approval of searches and seizures through warrant procedure____”) (emphasis added); Commonwealth v. Holzer, 480 Pa. 93, 103, 389 A.2d 101, 106 (1978) (Under the Fourth Amendment to the United States Constitution, and under Art. I, § 8 of the Pennsylvania Constitution, “[i]t is clear that there is no ‘automobile exception’ as such and that constitutional protections are applicable to searches and seizures of a person’s car---- Yet, in considering the reasonableness of a given search or seizure of an automobile, the need for a warrant is often excused by exigent circumstances.”)

Accord Commonwealth v. Baker, 518 Pa. 145, 148, 541 A.2d 1381, 1383 (1988) (“[C]ertain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present.”).

The reliability of the informants in this case was clear. The informant who told police that appellant would be driving into York to sell drugs on November 27, 1985 had previously supplied information to police regarding appellant’s trips to York. Police observations had confirmed the accuracy of this information. The other informant, who also supplied information about appellant’s earlier drug-dealing trips to York, had on prior occasions provided accurate information to police in connection with other drug cases. This information had led to the issuance of four search warrants, the arrest of four persons, and the confiscation of large quantities of drugs. This informant was a multi-drug user who was very knowledgeable about drugs. Thus, prior to November 27, 1985, police had on multiple *280occasions received information from two independent and reliable informants that appellant was using a vehicle to transport drugs into York for the purpose of conducting drug sales. Upon learning between 10:00 a.m. and 10:30 a.m. on November 27, 1985 that appellant was again going to transport drugs into York, police should have obtained a warrant to search appellant’s vehicle. See generally Commonwealth v. Gray, 509 Pa. 476, 485, 503 A.2d 921, 926 (1985) (search warrants can be issued on the basis of information supplied by confidential informants where probable cause is established by the totality of the circumstances).

The mere fact that police did not know whether appellant would be driving the same vehicle as was observed on earlier trips to York does not excuse the need for a warrant. Nor is it an excuse that police did not know the exact location, within the York vicinity, where appellant’s vehicle would be found. A warrant could plainly have been issued to allow a search of whatever vehicle appellant might be driving into the York vicinity on November 27, 1985. The requirement that search warrants be particular in their description of the areas to be searched would not have been violated by such a description, for, under the circumstances, it would have been impossible to provide a more particular description. See Pa. Const, art. 1, § 8 (“[N]o 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____”); Commonwealth v. Grossman, 521 Pa. 290, 296, 555 A.2d 896, 899 (1989) (warrants must be as “particular as is reasonably possible.”).

The facts pertaining to the search of appellant’s vehicle simply do not provide a basis for finding any exigent circumstances that would have excused the need for a warrant. Indeed, upon receiving a tip from one of their informants, at least three and one-half hours before stopping appellant’s vehicle, police had grounds for obtaining a warrant. During this three and one-half hour period, police observed nothing overtly suspicious or criminal in *281appellant’s behavior. The stop was not, therefore, based upon grounds other than those which existed when police received information from their informant that appellant would be transporting drugs into York that day. Police knew that appellant had previously delivered drugs at the Conn residence, so it cannot be said that the discovery of appellant’s vehicle in front of the Conn residence was new information supplying probable cause. The Conn residence was merely one of the destinations in York that police knew to be a destination for appellant’s drug deliveries. The case is not one, therefore, where additional or independent grounds for a search arose after receipt of the informant’s tip. Further, it should be noted that the record of the suppression hearing indicates that a magistrate’s office was located just a ten minute drive from the surveillance point where police observed appellant’s vehicle entering the York vicinity around noon on the day in question. Despite their earlier failure to request a warrant, police did not attempt, even after having observed the vehicle, to obtain a warrant.

Inasmuch as the warrantless search of appellant’s vehicle was conducted under circumstances where a warrant could reasonably have been obtained, suppression of evidence obtained through the search was required. Appellant should be awarded a new trial.

NIX, C.J., and ZAPPALA, J., join in this dissenting opinion.

Evidence obtained in the search of the Conn residence is not at issue here, but it may be noted that, inasmuch as an initial search of that residence was conducted without a warrant, under circumstances where a warrant could have been obtained, suppression of the evidence was required when Conn was prosecuted. Commonwealth v. *278Conn, 377 Pa.Super. 442, 547 A.2d 768 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989).