For the Defense - Vol. 6, Issue 2 - 11

cause. All the searches pre-dated Alexander. In every case,
the court granted suppression.
We reviewed two trial court opinions from Cumberland
County. In the first-Commonwealth v. Tyray Joynes9
-
the opinion is notable because the court rejected the
Commonwealth's argument that suppression should be
denied based on application of the inevitable discovery
doctrine. Specifically, the Commonwealth argued that the
evidence would have inevitably been discovered through
an inventory search. The court rejected this argument
because the police would not have had the authority to
perform an inventory search had they not first uncovered
contraband during the unlawful warrantless search.
In the second
Commonwealth v. Nathan Loreman10
Cumberland County case-
-the court rejected
several prosecution arguments aimed at avoiding a finding
that Alexander required suppression.11
The court (again)
rejected the Commonwealth's invocation of the inevitable
discovery doctrine. The court also found that exigent
circumstances did not justify the warrantless search-
evidently based on the finding that the two state troopers
on scene had the ability to prevent the occupants, who
had been removed from the car, from re-entering in order
to destroy evidence while the police sought a warrant.
Finally, the court rejected the Commonwealth's claim that
suppression should be denied because the officer, at the
time of the warrantless car search, relied in good faith on
Commonwealth v. Gary. This was so, the court reasoned,
because Pennsylvania has not adopted the federal 'good
faith' exception to the exclusionary rule.
Commonwealth v. Michael Williamson12
is a Dauphin
County case. The Williamson court likewise rejected several
prosecution efforts to avoid Alexander. For example,
the court rejected the Commonwealth's argument that
defendant failed to establish an expectation of privacy
in the car. The court also rejected the Commonwealth's
argument that Alexander did not apply because the search
occurred before Alexander was decided. In doing so, the
court reasoned that Alexander unequivocally applies to
all cases pending at the time Alexander was decided-
even cases on appeal as long as the issue was preserved.
Finally, the court also rejected the prosecution's exigency
argument. It did so based, in part, on the fact that the
defendant was in custody at the time of the search, and
as such, the defendant was unable to re-enter the car to
access and destroy contraband while the police sought
a warrant. Moreover, in discussing the exigency issue,
the court explained that, generally speaking, the proper
procedure for police to follow when they develop probable
cause to search a car is to maintain a visual on the car as
they apply for a warrant - as opposed to immediately
entering the car and conducting a warrantless search.
Lastly is the York County opinion in Commonwealth
v. Jaquan Brabham.13 The court again rejected several
prosecution attempts to avoid suppression under
Alexander. The rejected arguments included another
Vol. 6, Issue 2 l For The Defense 11
inevitable discovery/inventory search claim as well as
a claim that the search was a proper plain view search.
Most interesting was the
court's
treatment of
the
Commonwealth's exigency argument, which was premised
on the claim that the search occurred at 2:40 a.m. and
" no magisterial district judge would have arrived on
scene or approved a vehicle search over the phone [and
the officer] had never obtained a search warrant in the
middle of the night for a vehicle " :
If the addition of the very late or very early
hour of a stop to the mobility of a vehicle and
its attendant potential harms (i.e., possible
destruction of evidence and possible harm
to the community if dangerous evidence is
disseminated amongst it) is sufficient to form
exigency then Pennsylvania has not truly
rejected the federal automobile exception.
For, as the defense aptly notes, " crimes [often]
do not happen during the nine-to-five work
hours[.] " We presume officers might feel
some discomfort at contacting a magistrate
during non-working hours, which constitute
the majority of our 24-hour days. An officer's
preference, or even that of those who choose
to seek public office, cannot be permitted to
obviate the warrant requirement absent a
much greater showing of impossibility than is
present in this case. This Court is unaware of
a principle that one set of protections against
government search and seizure exists from 9 to
5, and another set applies after hours.
How District Attorney's Offices are Reacting to
Alexander
Based on our conversations with defense attorneys
in several counties, we learned that District Attorney's
Offices have reacted to Alexander in a variety of ways. But
we did note two general themes. First, in some counties,
the District Attorney's Office typically acknowledges
when Alexander applies and withdraws charges against
the accused after a motion to suppress is filed. Conversely,
in other counties, prosecutors have conceived a variety
of creative approaches to try and perform an end run
around Alexander-with little success, as evidenced by
the trial court opinions discussed above.
Anticipating and Responding to Prosecutor Attempts
to Avoid Alexander
For the remainder of this article, we will identify
arguments that either have been used or we expect
will be used by prosecutors to avoid suppression under
Alexander. We will also offer strategies for responding to
those arguments.

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

For the Defense - Vol. 6, Issue 2 - 1
For the Defense - Vol. 6, Issue 2 - 2
For the Defense - Vol. 6, Issue 2 - 3
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For the Defense - Vol. 6, Issue 2 - 42
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