For the Defense - Vol. 6, Issue 2 - 13

search - i.e., " that obtaining a warrant was not reasonably
practicable " - given that police typically did not even try
to obtain a warrant before Alexander came down.
Moreover, you will want to challenge any assertion
that an exigency existed because (1) cars are mobile and
(2) the stop occurred late at night when the magistrate
was asleep. The York County opinion rightfully rejected
this argument. In doing so, the court reasoned:
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.31
Relatedly, keep in mind that Pa.R.Crim.P. Rule 203
allows the police to secure a warrant by telephone.
This authority further undermines the claim that the
inconvenience of obtaining a warrant at night qualifies
as an exigent circumstance.
On a final note, remember the Dauphin County opinion's
discussion of the exigency doctrine, and particularly the
court's recognition 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 - not to immediately
enter the car and search it without a warrant.32
Commonwealth Argument No. 6: The issue
is waived because defendant's suppression
motion is untimely.
In some counties, the requirement that a motion to
But
For example,
suppress should be filed within 30 days after arraignment
is either not enforced at all or not enforced strictly.33
even in counties where it is enforced strictly, the court
can still hear an untimely suppression motion when " the
opportunity [for filing] did not previously exist " or " the
interests of justice otherwise require. " 34
the caselaw holds that a trial judge " should ... hear an
untimely ... suppression motion ... where the merits of
[the] motion [a]re so apparent that justice require[s] it be
heard. " 35
Under this standard, courts should hear even an
untimely suppression motion that raises a valid Alexander
claim. For more arguments against waiver, check out the
companion Alexander article in this issue.
Vol. 6, Issue 2 l For The Defense 13
For the Defense - Vol. 6, Issue 2

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