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The Pennsylvania Superior Court created a new exception to the search warrant requirement when it said gun evidence garnered from the search of a car was lawfully obtained after the two men in the car were in police custody, an attorney claims in a recently accepted allocatur petition. The Superior Court ruled in Commonwealth v. Perry and Commonwealth v. Stewart that Philadelphia Common Pleas Court Judge Willis W. Berry applied the exigency exception doctrine too narrowly when he ordered the suppression of the evidence in two attempted murder cases. The U.S. Supreme Court has recognized an automobile exception to the search warrant requirement when police have probable cause and a vehicle is stopped on the highway, it is movable, the passengers are alerted, and the car’s contents might not be found if a warrant must be obtained. The Pennsylvania Supreme Court has typically rejected the automobile exception to the warrant requirement but has held that a lawful search can be conducted if there are “exigent circumstances,” such as the vehicle is “highly movable” or contents may never be found. The state high court has also ruled that one’s expectation of privacy is “significantly” lower in an automobile than in one’s home or office. Although the trial court in Perry and Stewart ruled that the stop was lawfully made, the court disagreed with the commonwealth’s assertion that the alleged threat to the public’s safety justified the warrantless search. Berry said that although the Superior Court in the past has accepted a threat to public safety as a justification to conduct a warrantless search, the facts in the two cases at bar did not amount to a threat to public safety because the two men were in custody. The Superior Court reversed, ruling that officers were faced with dangerous situations and therefore lawfully searched the car. Now, after recently granting allocatur in both cases, the state’s highest court will decide the issue. WHITE LEXUS On June 8, 1996, Javon Jones and Bobby Mahalati were on their way to an after-hours club around 8th and Arch when they encountered Bret Stewart and Shawney Perry. Perry was driving a white Lexus while Stewart was a passenger. The men were stopped at a green light talking to some women in another car. Jones pulled his Geo Tracker next to Perry’s car when Stewart allegedly yelled, “What the f— you looking at?” Jones and Mahalati drove around the Lexus and pulled in front of the club. Perry then allegedly pulled alongside Jones’ vehicle, and there was an exchange of words. Perry allegedly drove to the end of the block and turned the corner. When Jones turned the same corner, he claimed he saw Perry and Stewart holding guns. Jones said he tried to speed away, and Mahalati was shot in the back and immediately paralyzed from the waist down. Jones was able to flag down a police officer after the shooting and gave a description of the men responsible and the vehicle they were driving. The police broadcast an alert to area police officers, and an officer on patrol saw a vehicle matching the description and pulled it over. The car was Jones’. Police escorted Jones to the Lexus, and he identified Perry and Stewart as the gunmen and told police they had two guns. Perry and Stewart were frisked for weapons, and they did not have any on them. Police took the two into custody. A lieutenant on the scene who “determined that it was imperative for public safety reasons to recover the missing firearms” quickly, ordered police to search the vehicle. They found a loaded 9-mm Helwan and a loaded .22 caliber Beretta under the floor mats of the car. Perry and Stewart were held for trial for attempted murder, aggravated assault, criminal conspiracy and other charges. In March 1998 the defendants had a joint suppression hearing after which the trial court ordered the evidence of the guns suppressed. Berry said that there were no exigent circumstances justifying the search because there was “clear testimony that the defendants were secured, handcuffed and placed in the back of a police car under arrest.” The commonwealth appealed. EXIGENT CIRCUMSTANCES The Superior Court determined that the trial court applied the exigency exception doctrine too narrowly in ordering the evidence suppressed. The court first determined that the police had probable cause to stop the vehicle and then turned to examining the circumstances surrounding the search of the Lexus. The court said that after the officers patted Perry and Stewart down and found no weapons, the police were appropriately concerned that the defendants had thrown the guns out of the vehicle. “The officers feared that if the gun was cocked and ready to fire and still in the car, it might fire when an officer stepped into the car to turn off the ignition or drive the car to the police precinct,” the panel said in Stewart’s case. Therefore, the officers were faced with “two equally difficult and dangerous situations: innocent persons finding the gun and getting hurt as they handled it and an officer being injured by the gun as he stepped into the car to turn off the ignition.” The court said there was a need for “immediate police action” and the intrusion to the defendants’ privacy was “minimal.” The court reached the same conclusion in both cases and filed a published opinion in Perry and a memorandum opinion in Stewart. Judge Michael T. Joyce concurred in both. Perry and Stewart appealed to the state Supreme Court. ALLOCATUR PETITIONS Both petitions for allocatur pose the same question for the high court: “Whether the Superior Court erred in creating a new, vague and unnecessary exception to the search warrant requirement where the facts of the present case indicate that no credible ‘emergency’ existed and no threat to public safety existed which would justify the officer’s warrantless search of petitioner’s vehicle?” The petitions assert that in “virtually every” Pennsylvania case with a factual scenario similar to Perry and Stewart’s, the courts have suppressed the evidence where a vehicle’s occupants were under arrest at the time of the search. “The basis for this consistent result is that once the occupants are in custody, no emergency exists which will justify an immediate search of the car,” the petitions say. The petitions say that the police made “no effort” to secure a search warrant for the Lexus and that the commonwealth’s “public safety” argument is “ludicrous.” There was no immediate threat to the community or police officers and the car’s positioning did not constitute a traffic hazard, the petitions assert. There was therefore no urgent need to search the car without obtaining a warrant, the petitions say. “In sum, the police have failed to set forth a justifiable basis for ignoring the search warrant requirement,” the petitions say. “In lieu of the numerous reasonable alternatives available to the officers and the lack of any real danger to the public, the officers’ decision to immediately search the vehicle violated the petitioner’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.”

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