No. 842 April Term, 1976, Appeal from the Order of May 3, 1976, of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7601148 and CC7601563.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Edgar M. Snyder and Stanton D. Levenson, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 413]
This Commonwealth appeal*fn1 is taken from an order of the court below suppressing evidence seized in the warrantless search of an automobile. The sole issue for our determination is whether the lower court erred in sustaining appellees' suppression motion. For the reasons that follow, we hold it did, and therefore reverse the order entered below.
Some time before February 6, 1976, Allegheny County Police arranged a sale of five pounds of marijuana to one of their undercover agents. A reliable police informant set up the sale at her residence for approximately 9:30 P.M. on February 6, 1976, and in conjunction with this plan, six detectives maintained surveillance of the residence at that time. As planned, two men who were to "check out" the premises before the sale arrived at approximately 9:00 P.M. in an automobile registered to Berman. Forty-five minutes after the two men entered the residence, Berman came out of the house and drove away. When he returned a short time later, he re-entered the dwelling, and Officer Ransley, the prospective purchaser, was admitted to the house by the informant. Berman then told Ransley that one pound of marijuana was available for $200.00, and after the deal was closed, the officer identified himself and arrested Berman. The remaining officers were admitted to the residence, whereupon the informant related that she had overheard that "Mike" was outside in Berman's car with the rest of the marijuana. Detective Duffy went outside to inspect the car, and in doing so, shined his flashlight about the interior of the vehicle, and discovered a closed tool box on the back seat. Duffy did not then enter the vehicle, but proceeded to move a police vehicle behind the Berman car. At that time, he saw McStay, whom he did not then know, walking on the opposite side of the street.
[ 262 Pa. Super. Page 414]
After Duffy returned to the informant's residence, the policemen and those arrested came out of the house, at which time they saw the Berman car pulling away from the curb. Two officers stopped the car and removed its driver, McStay, removed the tool box, searched it, and discovered four pounds of marijuana. McStay was then arrested.
Before trial, appellees' counsel filed motions to suppress the marijuana seized from the tool box. After a hearing in the court below, an order was entered granting the motions, and this appeal followed.
Automobiles, being of a highly mobile nature, are not subject to the same strict requirements of search and seizure as an individual's home would be. Commonwealth v. Clelland, 227 Pa. Super. 384, 323 A.2d 60 (1974). However, we must be mindful of the fact that "[t]he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). Nevertheless, we are persuaded that sufficient probable cause existed in the case at hand to justify a warrantless search of the automobile in question.
In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court established the constitutional difference between houses and cars for Fourth Amendment purposes, and held that an immediate search without a warrant is constitutionally permissible where there is probable cause to search an automobile stopped upon the highway, the car is movable, the occupants are alerted, and the contents of the car may never be found again if a warrant must be obtained. Given these exigent circumstances delineated in Carroll, the rule has evolved that a warrantless search of an automobile is permissible where the probable cause arises in an unforseen way shortly before the opportunity for search, and at a time when the automobile is mobile so ...