Commonwealth v. Saunders

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR SAUNDERS, Appellant

Court: Supreme Court of Pennsylvania

Date published: Nov 20, 2024

20 EAP 2023 (Pa. Nov. 20, 2024)

Opinion

20 EAP 2023 J-5-2024

11-20-2024

COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR SAUNDERS, Appellant

DOUGHERTY, JUSTICE

ARGUED: March 5, 2024

Appeal from The Judgment of Superior Court entered on 12/13/2022 at No. 2192 EDA 2021 affirming the Judgment of Sentence entered on 9/28/2021 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0000208-2021.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

OPINION

DOUGHERTY, JUSTICE

In this discretionary appeal, we consider the legality of a police officer's warrantless seizure of an unsecured gun in plain view in an open car lawfully stopped for traffic violations. As detailed below, we conclude the seizure was constitutional under the plain view doctrine. Accordingly, we affirm the order of the Superior Court upholding the denial of suppression of the firearm.

On the evening of November 18, 2020, Officer Matthew Ibbotson and his partner, Officer Washington, were patrolling in a marked police car in the area of the 2500 block of West Indiana Avenue in Philadelphia. Officer Ibbotson had made approximately fifty to sixty gun-related arrests in the area, about seventy percent of which had resulted from car stops. It is a residential area that is "pretty violent" and has "[a] lot of shootings." See N.T. Suppression Hearing, 5/20/21, at 8-11.

At approximately 6:55 p.m., Officer Ibbotson saw a silver Honda with heavily tinted windows parked illegally. When the officer stopped at a stop sign, the Honda pulled in front of him and then made a right-hand turn without signaling. Officer Ibbotson stopped the car for violations of the Vehicle Code.¹ He approached the car on the driver's side, and Officer Washington approached the vehicle on the passenger's side. Saunders was driving the car alone. As Saunders sat in the driver's seat with the driver's side window down, Officer Ibbotson asked him for his license, registration, and insurance. Initially, Saunders reached toward his back left pants pocket and said his paperwork was in his back pocket. He then said it was in his inside pocket on his right side and reached in that direction. The officer asked him if he had any weapons, and Saunders said no. Saunders then reached with his right arm toward the right side of the car while simultaneously dropping his left arm down by his feet and moving it "like he was pushing something" under the driver's seat. Id. at 14. Officer Ibbotson looked through the front windshield and saw the handle of a gun under the driver's seat. The officer was "[v]ery" certain he saw a gun. Id. at 15. Concerned for his own safety and that of his partner, Officer Ibbotson used a hand signal to notify Officer Washington about the gun.

1 See 75 Pa.C.S. §4524(e)(1) ("No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle."); 75 Pa.C.S. §3353 (listing circumstances under which street parking is prohibited); 75 Pa.C.S. §3334(a) ("Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.").

Officer Ibbotson had Saunders turn off his car and hand over his keys. The officer ordered Saunders out of the car, placed him in handcuffs, and frisked him. He took Saunders's driver's license from his wallet and asked him if he had a permit for the gun. Saunders replied, "[N]o." Id. at 16. He said the car belonged to his wife, and that she lived right around the corner. Officer Ibbotson then placed Saunders in the back of his police car for the safety of the officers. He returned to the stopped car. Officer Ibbotson told Washington, "He was like playing with the thing down here - trying to push it under. And I looked." Exhibit C-2 (body-worn camera footage from Officer Ibbotson), at 04:10. Officer Washington responded, "I saw his leg moving." Id., at 04:13. At that point, Officer Ibbotson, from outside of the car on the street, reached into the car through the open driver's side door, recovered the gun from under the front of the driver's seat, and immediately disabled the weapon. It was a 40-caliber handgun loaded with fourteen bullets. The gun was stolen.

Saunders filed a motion to suppress the gun under the Pennsylvania and United States Constitutions. At the suppression hearing, the Commonwealth presented the testimony of Officer Ibbotson and body-worn camera footage from both officers. Saunders did not present any evidence. But he explained "the basis of the motion is that" Officer Ibbotson "did not have the legal justification to reach into the car and seize the firearm at the time that he did." N.T. Suppression Hearing, 5/20/21, at 6. In Saunders's view, under this Court's then-recent decision in Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020), "police officers need a warrant to search . . . and seize anything from a car unless there are exigent circumstances[.]" Id. at 36 (emphasis added); see id. at 37 ("Alexander says that officers need warrants to search and seize items from the car.") (emphasis added).

The suppression court held the motion under advisement and permitted the parties to brief the matter. In his filing, Saunders reiterated his belief that, under Alexander, the "officers were required to obtain a warrant prior to seizing the firearm from the vehicle." Saunders's Letter Brief in Support of Motion to Suppress, 6/14/21, at 3. In reply, the Commonwealth argued the seizure was proper under the plain view doctrine, in part "due to the lack of advance notice and opportunity to obtain a warrant and the inherent danger of traffic stops and guns." Commonwealth's Brief in Opposition to Motion to Suppress, at 3 (undated).

Ultimately, the suppression court denied the motion. In its opinion, the suppression court explained a police search conducted without a warrant is generally unreasonable and therefore unconstitutional unless an established exception to the warrant requirement applies, and one such exception is the automobile exception. The court noted that under the Pennsylvania Constitution, "a warrantless search of a vehicle under the automobile exception is only permissible where there exists 'both probable cause and exigent circumstances.'" Trial Court Op., 4/21/22, at 13, quoting Alexander, 243 A.3d at 207. In addition, the court noted "[t]he plain view doctrine 'permits the warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.'" Id. at 14, quoting Commonwealth v. Heidelberg, 267 A.3d 492, 504 (Pa. Super. 2021).²

2 The plain view doctrine is an exception to the warrant requirement for a seizure. See Horton v. California, 496 U.S. 128, 134 (1990) ("If 'plain view' justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches."); United States v. Green, 106 F. 4th 368, 378 (4th Cir. 2024) ("The plain-view doctrine is an exception to the Fourth Amendment warrant requirement for a seizure, not a search.") (emphasis omitted). Accordingly, the plain view doctrine is also referred to as the "plain view exception." See, e.g., Alexander, 243 A.3d at 185; Commonwealth v. Wilmer, 194 A.3d 564, 568 (Pa. 2018).

Here, the court opined, there was probable cause and exigent circumstances satisfying the automobile exception to the warrant requirement:

Under the totality of the circumstances, . . . Officer Ibbotson had probable cause to conduct a warrantless search of the vehicle [Saunders] was driving. Officer Ibbotson observed [Saunders] drop his left arm to the side and move it back and forth. This prompted Officer Ibbotson to shine

his flashlight through the front windshield of the vehicle, at which point he saw a firearm under the driver's seat. Officer Ibbotson then learned from [Saunders] that he did not have a license to carry a firearm, meaning he had sufficient information to believe that [Saunders] was in illegal possession of the firearm and had therefore violated the Uniform Firearms Act. Officer Ibbotson therefore also had probable cause to arrest [Saunders].

Additionally, under the totality of the circumstances, . . . exigent circumstances also existed to justify the warrantless search. [Saunders] was stopped in a high crime area in a high crime city and was observed making furtive movements with his left hand in an apparent attempt to conceal the firearm that was later seen by Officer Ibbotson under the driver's seat. Officer Ibbotson thus reasonably believed his safety was in danger, which aligned with the general concerns he expressed over conducting car stops at the suppression hearing. There was therefore a compelling need for Officer Ibbotson to take official action and recover the firearm without waiting the significant amount of time it could have taken for a warrant.

Id. at 16-17.

The court also concluded each prong of the plain view doctrine was established:

Officer Ibbotson was at a lawful vantage point when he saw the back handle of the firearm, as he was outside of the vehicle and looking in through the front windshield. Officer[] Ibbotson's prior training and experience with gun-related arrests from car stops allowed him to perceive [Saunders] making furtive movements with his left arm, which led him to shine the flashlight and plainly observe a firearm under the driver's seat. Finally, Officer Ibbotson had lawful access because the traffic stop of [Saunders] was lawful due to [Saunders's] commission of several violations of the . . . Vehicle Code, and, as previously discussed, a warrantless search of the vehicle was permissible under the automobile exception.

Id. at 17-18.

Following the denial of his suppression motion, Saunders proceeded to a bench trial before a different judge. The trial court convicted him of persons not to possess firearms, carrying a firearm without a license, and carrying a firearm on a public street or public property in Philadelphia. See 18 Pa.C.S. §§6105, 6106, and 6108. The court sentenced him to an aggregate term of three and a half to seven years' imprisonment. Saunders appealed.

The Superior Court affirmed the judgment of sentence. Initially, the panel held Saunders's claim the gun should have been suppressed as the fruit of an illegal arrest was waived because he did not preserve this claim in the suppression court but rather raised it "for the first time on appeal[.]" Commonwealth v. Saunders, 2022 WL 17588739 at *3 (Pa. Super. 2022) (unpublished memorandum). Alternatively, the panel ruled that when the police ordered Saunders from the car and handcuffed him, he was not placed under arrest but rather subjected to a lawful "investigative detention." Id. at *3 n.6.

Most relevant here, the panel held suppression was properly denied under the plain view exception to the warrant requirement. Regarding Saunders's argument Alexander "require[s] the Commonwealth to demonstrate exigent circumstances before invoking the plain view exception in the context of automobile searches[,]" the panel determined this "same argument" was "rejected" in Commonwealth v. McMahon, 280 A.3d 1069 (Pa. Super. 2022), which it was bound to follow. Id. at *4. Moreover, the panel found "unavailing" Saunders's contention that "the Commonwealth failed to establish the requirements of the plain view exception." Id. at 4. The panel observed Saunders did not dispute the first two prongs were satisfied and accordingly found them to be met. It further held the police had a lawful right of access to the gun in satisfaction of the third prong:

With regard to the final prong, we find that the officer had a lawful right to access the interior of [Saunders's] vehicle after [Saunders] lied about the presence of the firearm, was observed attempting to hide it, and admitted that he did not possess a valid firearm permit. . . . These factors combined to create probable cause suddenly and without any advance warning that [Saunders] or his car would be the target of a police investigation. . . . Therefore, since Officer Ibbotson lacked advance notice and an opportunity to obtain a warrant before commencing a search, he had a lawful right of access to the interior of [Saunders's] vehicle to recover the evidence that was lying in plain view and, thereby, secure officer safety.

Id. (internal quotation marks and citations omitted). Consequently, the panel "conclude[d] that the seizure of the firearm was lawful[,]" and "the trial court did not err when it denied suppression of the firearm." Id. at *5.

We granted Saunders's petition for allowance of appeal, which raised the following issue: "Does this Court's holding in [Alexander] require a fact specific assessment to determine whether exigency exists to provide officers with a right of access to the interior of an automobile under the plain view exception to the warrant requirement?" Commonwealth v. Saunders, 301 A.3d 865 (Pa. 2023) (per curiam).

"[O]ur standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). "Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Dunkins, 263 A.3d 247, 252 (Pa. 2021), quoting In Interest of A.A., 195 A.3d 896, 901 (Pa. 2018). "Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence." Commonwealth v. Laatsch, 661 A.2d 1365, 1367 (Pa. 1995), quoting Commonwealth v. O'Shea, 567 A.2d 1023, 1028 (Pa. 1989). Our scope of review is limited to the record of the suppression hearing. See Yandamuri, 159 A.3d at 516. Additionally, we may "consider only the Commonwealth's evidence and so much of the defense's evidence as remains uncontradicted when read in the context of the record as a whole." Dunkins, 263 A.3d at 252, quoting A.A., 195 A.3d at 901.

Saunders argues the Superior Court erred in affirming the denial of suppression. As he did below, Saunders concedes the first two prongs of the plain view doctrine were established. Yet, he emphasizes the plain view doctrine also requires the police to have a lawful right of access to the contraband, and this requirement applies to cars. He contends that pursuant to Alexander, lawful access to a car requires either a warrant, probable cause and exigent circumstances, or some other exception to the warrant requirement. He asserts Alexander demands a fact-specific, case-by-case analysis of whether there are exigent circumstances, and the inquiry is not amenable to per se rules. He claims exigent circumstances are not necessarily established simply because the police lacked advance notice and an opportunity to obtain a warrant before probable cause arose. In his view, whether the police could have obtained a warrant must be considered. He contends exigent circumstances were lacking here where he was already secured in police custody at the time the gun was seized. He argues as well that especially in light of advanced communication technology, it is wrong to assume the police lack an opportunity to get a warrant when probable cause arises suddenly during a traffic stop.

The Commonwealth responds that suppression was properly denied and the Superior Court's order should be affirmed. Initially, the Commonwealth argues the police lawfully seized the gun as a protective measure pursuant to Michigan v. Long, 463 U.S. 1032 (1983) (authorizing protective search of passenger compartment of car where police have reasonable belief suspect is dangerous and may gain control of weapons), and Commonwealth v. Morris, 644 A.2d 721, 724 n.3 (Pa. 1994) (adopting Long for purposes of Article I, Section 8 of Pennsylvania Constitution). Alternatively, the Commonwealth insists the gun was properly seized pursuant to the plain view exception. It posits that under Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007) (opinion announcing judgment of court), when a police officer, after lawfully stopping an ordinary car in a public place, unexpectedly observes contraband in plain view that the officer quickly retrieves from an exposed area of the car without causing any damage to property, the state constitution is not violated. The Commonwealth submits Alexander did not overrule McCree, and urges the Court not to do so here. It identifies four reasons for preserving McCree: stare decisis; the logic of Alexander; case law from other jurisdictions; and policy considerations. The policy concerns noted by the Commonwealth include the state of the law at the time of the seizure allowing warrantless car searches based on probable cause alone under Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion announcing judgment of court) (adopting federal automobile exception to warrant requirement which requires only probable cause to search car and not exigent circumstances),³ the challenges and delay associated with obtaining a warrant, and the difficulties associated with safeguarding a car while a warrant is obtained.

3 Alexander, which overruled Gary, was not decided until December 22, 2020, more than one month after the challenged seizure here.

Amici curiae the Attorney General of Pennsylvania and the Pennsylvania District Attorneys Association also advocate for affirmance. Amici contend the unexpected discovery of a gun during a lawful traffic stop creates exigent circumstances. They submit the exigency does not end until both the suspect and the gun are secure because the suspect might have to be freed absent grounds for arrest, or he might escape from restraint. Given the exigent circumstances in this case, and the clear and undisputed presence of probable cause, amici argue the police had a lawful right of access to the gun under Alexander and the plain view exception.

In reply, Saunders insists the degree of the police entry into the car is irrelevant. He contends amici's argument that the sudden appearance of a firearm during a traffic stop always amounts to exigent circumstances proposes a per se rule for exigency in contravention of Alexander. He submits Officer Ibbotson did not testify to a belief that Saunders was dangerous or might gain control of the gun, and the officer's body-worn camera showed he was cooperative with the officers. Additionally, Saunders claims he was placed under arrest, and thus there was no need to prevent his access to the gun upon his return. He asserts consideration of caselaw from other jurisdictions is not appropriate because he is not seeking expansion of a state constitutional right but rather the straightforward application of the automobile exception under Alexander and Pennsylvania law. Saunders emphasizes obtaining a warrant should be the default rule for plain view car searches and seizures, to protect against both police misjudgments about an object's incriminating nature as well as police searches of areas of cars they would not otherwise be able to access.

"[T]he Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution prohibit unreasonable searches and seizures." Commonwealth v. Jones-Williams, 279 A.3d 508, 515 (Pa. 2022).⁴ "Protection of reasonable expectations of privacy is the primary purpose of the prohibition against unreasonable searches and seizures." Commonwealth v. Holzer, 389 A.2d 101, 106 n.6 (Pa. 1978). "A search or seizure conducted without a warrant 'is presumptively unreasonable . . . subject to a few specifically established, well-delineated exceptions.'" Interest of T.W., 261 A.3d 409, 416 (Pa. 2021), quoting Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008). "These exceptions include, inter alia, exigent circumstances, the plain view exception, searches incident to arrest, consent searches, and automobile searches." Wilmer, 194 A.3d at 568 (cleaned up).

4 The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.

US Const. amend. IV. Article I, Section 8 similarly provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no 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, supported by oath or affirmation subscribed to by the affiant.

PA Const. art. I, §8.

The plain view doctrine is "wholly applicable to . . . seizure issues under both the Fourth Amendment and Article I, Section 8." Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010). Under the plain view doctrine, the police may effectuate a warrantless seizure of an item if: (1) the police view the item from a lawful vantage point; (2) the incriminating nature of the item is immediately apparent; and (3) the police have a lawful right of access to the item. See Commonwealth v. McCullum, 602 A.2d 313, 320 (Pa. 1992); see also McCree, 924 A.2d at 625; Commonwealth v. Graham, 721 A.2d 1075, 1079 (Pa. 1998) (opinion announcing judgment of court).⁵

5 This Court has also described the plain view doctrine as consisting of four prongs. See Jones, 988 A.2d at 656 ("This doctrine permits a valid warrantless seizure of an item where: (1) the police have not violated the Fourth Amendment in arriving at the location from which the item could be viewed; (2) the item is in plain view; (3) the incriminating character of the item is immediately apparent; and (4) the police have a lawful right of access to the item itself."). The immediately apparent prong of this formulation subsumes plain view. See McCullum, 602 A.2d at 320 ("[N]ot only must the item be in plain view, its incriminating character must also be immediately apparent."), quoting Horton v. California, 496 U.S. 128, 136 (1990). In any event, the parties refer to a three-prong test. See Saunders's Brief at 9; Commonwealth's Brief at 12. Accordingly, we too employ the three-prong formulation.

Here, it is undisputed the first two prongs of the plain view test are satisfied. See Saunders's Brief at 9 ("Only the application of the third prong, lawful right of access, is addressed to the Court here."). Indeed, it is not debatable Officer Ibbotson viewed the gun from a lawful vantage point. Following a lawful traffic stop, the officer was lawfully standing outside of the car on a public street when he observed the gun in plain view under the driver's seat. See, e.g., Wayne R. LaFave, 3 Search and Seizure: A Treatise on The Fourth Amendment, § 7.5(a) (6th Ed.) (where a "vehicle is parked on a public street or parking lot, then there is no doubt but that the officer may stand by and look into the vehicle just as any member of the public might").

Moreover, it is clear from the record that the incriminating nature of the gun was immediately apparent to Officer Ibbotson. The immediately apparent requirement is "coextensive with probable cause." Commonwealth v. Zhahir, 751 A.2d 1153, 1163 (Pa. 2000); see also Commonwealth v. Ellis, 662 A.2d 1043, 1049 (Pa. 1995) ("[I]t must be immediately apparent to the viewer that the object observed is incriminating evidence. In other words, the observing officer must have probable cause to believe the evidence in question is contraband or incriminating evidence."). There was plainly probable cause at the time of the seizure, as Saunders concedes. See Saunders's Reply Brief at 16 ("Appellant concedes . . . probable cause existed in this case."). Probable cause exists "where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Barr, 266 A.3d 25, 40 (Pa. 2021), quoting Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007). Probable cause is a "practical, non-technical concept" that is "evaluated under a traditional totality-of-the-circumstances test." Id. Officer Ibbotson lawfully stopped Saunders for multiple traffic violations in

Philadelphia. The neighborhood was violent, with a lot of shootings. Saunders lied to the officer that he did not have a weapon and furtively attempted to conceal a gun under his seat. The officer saw what he was very certain was a gun under Saunders's seat. Saunders admitted he did not have a license for the gun. At a minimum, the totality of these circumstances established probable cause to believe Saunders was in violation of two provisions of the Uniform Firearms Act: 18 Pa.C.S. §6106(a) (prohibiting carrying of firearm in vehicle without license), and 18 Pa.C.S. §6108 (prohibiting carrying of firearm on public streets of Philadelphia without license).

In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), this Court held: "[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity." Id. at 937. Here, Officer Ibbotson in fact had prior knowledge Saunders was not permitted to a carry a gun in public based on Saunders's own admission, and in any event, Saunders also suspiciously lied about the weapon and attempted to hide it. There was ample probable cause on these facts, and thus the second prong of the plain view standard is established.

Finally, we hold the police had a lawful right of access to the gun under McCree.⁶In that case, the police observed McCree engage in a suspected drug deal inside a parked car. When an officer approached the car, he saw McCree, who was sitting in the driver's seat, shove a pill bottle under his seat cushion. The officer asked McCree to exit the car and then recovered the pill bottle, which contained Xanax. Thereafter, the officer saw two more pill bottles in the pocket of the open driver's-side door, which he also recovered. These pill bottles contained OxyContin and Percocet. McCree moved to suppress the drugs under the Pennsylvania and United States Constitutions. The trial court and the Superior Court ruled the pill bottles were lawfully seized under the plain view exception to the warrant requirement. This Court "granted allowance of appeal to clarify the standard for the plain view exception to the warrant requirement." McCree, 924 A.2d at 623.

6 If Saunders's suppression challenge were premised on the Fourth Amendment only, rather than both the federal and state constitutions, there would be at least two additional grounds for lawful access to the firearm: the federal automobile exception, and Arizona v. Gant, 556 U.S. 332, 351 (2009) ("Police may search a vehicle incident to a recent occupant's arrest . . . if . . . it is reasonable to believe the vehicle contains evidence of the offense of arrest.").

The lead opinion in McCree, which was authored by Justice Eakin and joined by Justices Saylor and Fitzgerald, clarified that "under both the Fourth Amendment and Article I, §8, the plain view exception to the warrant requirement requires a determination of whether the police have a lawful right of access to the object seen in plain view." Id. at 628. Regarding the lawful-right-of-access prong, the lead opinion rejected the

Commonwealth's argument to "adopt the federal automobile exception under Article I, §8." Id. at 629. It insisted the Court had previously rejected "the full federal automobile exception under Article I, §8" in Holzer, and it "decline[d] to overrule that long-standing precedent today, especially because that issue is not specifically before us, but ancillary to the issue we are resolving." Id. at 629-30.

While rejecting the federal automobile exception for purposes of the Pennsylvania Constitution, the lead opinion nonetheless held the Court had "adopted a limited automobile exception under Article I, §8." Id. at 630. Explicating the "limited automobile exception," it observed:

We have allowed warrantless seizures "where police do not have advance knowledge that 'a particular vehicle carrying evidence of crime would be parked in a particular locale, . . . the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search [without a warrant] proper.'" Commonwealth v. Rodriguez, 585 A.2d 988, 991 (Pa. 1991) (citing [Commonwealth v.] Baker, [541 A.2d 1381, 1383 (Pa. 1988)]). Conversely, when the police have ample advance information that a search of an automobile is likely to occur in conjunction with apprehension of a suspect, a warrant has been held to be required before the automobile may be searched. Commonwealth v. Ionata, 544 A.2d 917, 920-21 (Pa. 1988).

Id. (emphasis omitted).

Turning to application of the three-part plain view doctrine test, the McCree lead opinion determined each of the prongs was met. Pertinently, with respect to the lawful-right-of-access prong, it held:

Finally, even without [the officer's] observation of the pill bottles, the remaining information above created probable cause to search the interior of the [car] for evidence of a drug sale. Since there was no advance[] warning that [McCree] or his [car] would be the target of a police investigation, the limited automobile exception applies here. Thus, [the officer] lawfully accessed the interior of [the car] under this exception, and while conducting a search, seized all three pill bottles. In sum, access to the [car] was authorized by the limited automobile exception[.]

Id. at 631. Accordingly, the lead opinion concluded "seizure of the pill bottles was authorized by the plain view exception." Id.

Justice Castille issued a concurring opinion in McCree joining the lead opinion "with the exception of its discussion of [Holzer] and the status and contours of the 'automobile exception' to the warrant requirement under Article I, Section 8 of the Pennsylvania Constitution." Id. at 634 (Castille, J., concurring); see also id. at 635 ("I concur in the Majority Opinion respecting the automobile exception, and I join it in all other respects."). Justice Castille explained:

It is enough to state, for present purposes, that: (1) if this Court were to squarely face the question of what is demanded by Article I, Section 8 respecting automobile searches, I remain inclined to hold that our approach should be coextensive with the federal approach under the Fourth Amendment; and (2) failing that square joinder of the issue, it is my view that this Court's existing Article I, Section 8 holdings in this area . . . at most suggest that, if Article I, Section 8 requires an exigency to justify a probable cause-based warrantless entry of a vehicle (probable cause is the only federal requirement), all that is required is that the probable cause arose unexpectedly, i.e., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose. . . .

In this case, probable cause respecting the vehicle did arise unexpectedly as police were engaged in an investigation of an unfolding retail illegal drug operation. Moreover, in such circumstances, it was not reasonably practicable to expect police to secure a warrant prior to searching the vehicle. And, moreover, there is no reason to believe that police

manipulated the circumstances in order to subvert the warrant requirement. In my view, then, even under the most expansive reading of this Court's Article I, Section 8 precedent, the automobile search here, which was supported by probable cause and an exigency beyond the mobility of the vehicle, was lawful.

McCree, 924 A.2d at 635 (quotation marks, citations, and footnote omitted).⁷

7 Chief Justice Cappy issued a separate concurring opinion, which was joined by Justices Baer and Baldwin. He joined in the lead opinion's clarification that the plain view doctrine includes the requirement of a lawful right of access to the item in plain view. See McCree, 924 A.2d at 632 (Cappy, C.J., concurring). He disagreed, however, with the lead opinion's application of this prong to McCree's case. He noted "McCree was only charged and convicted of possession with intent to deliver the Xanax which was found in the . . . pill bottle that McCree had secreted under his seat cushion. . . . Thus, the propriety of the seizure of the pill jars from the driver side door pocket is not at issue in this appeal." Id. at 632 n.2. Regarding the seizure of the pill bottle under the seat cushion, he expressed the view it was "unnecessary to delve into the contours of the automobile exception under Article I, §8, as the parameters of that exception to the warrant requirement" were "not directly before" the Court. Id. at 634. Instead, he would have found the lawful access prong to be "satisfied by the search incident to arrest exception to the warrant requirement." Id.; but see Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) ("We disagree . . . with [the] Superior Court's determination that White's vehicle was permissibly searched because White was under arrest. . . . [T]here is no justifiable search incident to arrest under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody[.]").

Although McCree was a plurality decision, this does not mean it lacks precedential weight. This Court has adopted the rule of Marks v. United States, 430 U.S. 188 (1977). See Alexander, 243 A.3d at 197 ("We apply the Marks rule."). Under the Marks rule, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of [four] Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment[] on the narrowest grounds[.]" Marks, 430 U.S. at 193, quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This Court has employed the Marks rule "in discerning binding holdings in decisions that facially may appear to be non-precedential." In re Avery, 286 A.3d 1217, 1229 (Pa. 2022) (collecting cases). In order for the Marks rule to apply, "a majority of the Court must be in agreement on the concept which is to be deemed the holding." Id., quoting Pap's A.M. v. City of Erie, 719 A.2d 273, 278 (Pa. 1998), rev'd sub nom. City of Erie v. Pap's A.M., 529 U.S. 277 (2000).

Here, the three-Justice lead opinion in McCree determined that because there was no advance warning of probable cause, Pennsylvania's automobile exception was satisfied, and also that the police lawfully accessed the interior of the car in satisfaction of the third prong of the plain view doctrine. See McCree, 924 A.2d at 631 ("Since there was no advance[] warning that [McCree] or his [car] would be the target of a police investigation, the limited automobile exception applies here. Thus, [the police] lawfully accessed the interior of [the car] under this exception, and while conducting a search, seized all three pill bottles."). Justice Castille's concurrence expressed his preference for adopting the broader federal automobile exception under the Pennsylvania Constitution. See id. at 635 ("[I]f this Court were to squarely face the question of what is demanded by Article I, Section 8 respecting automobile searches, I remain inclined to hold that our approach should be coextensive with the federal approach under the Fourth Amendment[.]"). That is, he argued probable cause alone, irrespective of whether it arose unexpectedly, should suffice to authorize entry into a car. However, Justice Castille also clearly agreed with the lead opinion that unexpected probable cause permits lawful access to a car. See id. ("[I]f Article I, Section 8 requires an exigency to justify a probable cause-based warrantless entry of a vehicle (probable cause is the only federal requirement), all that is required is that the probable cause arose unexpectedly, i.e., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose. . . . In this case, probable cause respecting the vehicle did arise unexpectedly as police were engaged in an investigation of an unfolding retail illegal drug operation.") (internal quotation marks and citation omitted).

Thus, while Justice Castille would have gone further than the lead opinion to find lawful access based simply on probable cause, four Justices in McCree agreed that the unexpected development of probable cause establishes a lawful right of access to the interior of a car under the third prong of the plain view doctrine. This position of a majority of the McCree Court constitutes the narrowest grounds of agreement supporting the judgment. As such, pursuant to the Marks rule, this holding is precedential - a fact the Superior Court en banc correctly (and unanimously) recognized more than a decade ago. See Commonwealth v. Brown, 23 A.3d 544, 557 (Pa. Super. 2011) (en banc) ("[W]e must conclude that Justice Castille's concurrence in McCree narrowly inures the plurality's [opinion announcing judgment of court] with precedential value regarding automobile searches and seizures in the following limited respect: where police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage-point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access to seize the object in question."); see generally Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756, 763 (1980) ("It is easy to isolate the narrowest ground in those situations where the plurality relies on rationale A in support of the result, and the concurrence clearly agrees on the applicability of that rationale, but also goes a step further and espouses rationale B as well. In such cases the plurality rationale may fairly be regarded as the narrowest ground embodying the reasoning of a majority of the Court, and that rationale should be binding on lower courts for future cases."), quoted in Commonwealth v. McClelland, 233 A.3d 717, 731 n.7 (Pa. 2020) (brackets omitted).⁸

8 The unanimous en banc decision in Brown was authored by then-Judge, now-Justice Donohue. Although Justice Donohue has now changed her view and asserts her decision in Brown was "wrong[,]" we respectfully submit she got it right the first time. Dissenting Opinion at 18.

Alexander did not overrule McCree. In Alexander, the police stopped a car driven by Alexander and arrested him for smoking marijuana. The police then searched the interior of his car for more marijuana. The officers found a metal box behind the driver's seat, which they opened with a key from Alexander's keychain. The box contained bundles of heroin. Following the denial of Alexander's motion to suppress the drugs, and the Superior Court's affirmance thereof, this Court granted allowance of appeal solely to consider whether to "overrule or limit" Gary, which, as noted, adopted the federal automobile exception for purposes of Article I, Section 8. Alexander, 243 A.3d at 180. The Court decided to overrule Gary and "return to the pre-Gary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances; 'one without the other is insufficient.'" Id. at 207, quoting Commonwealth v. Luv, 735 A.2d 87, 93 (Pa. 1999). The Alexander Court also remarked that the determination of exigent circumstances "is not amenable to per se rules and requires a consideration of the totality of the circumstances." Id. at 208.

While Alexander overruled Gary, it did not also reverse McCree sub silentio. Alexander did not involve a plain view seizure from a car as in McCree. To the contrary, the police in Alexander conducted a full-blown search of the inside of Alexander's vehicle, including opening a locked container inside the car. Unsurprisingly then, Alexander did not purport to apply the plain view doctrine, much less change the law in this area. While Alexander briefly discussed McCree, the Court confined its discussion to McCree's consideration of the automobile exception, and did not address McCree's plain view holding. See id. at 185 ("In [McCree], a case involving an automobile search and application of the plain view exception, this Court described, for the first time, Pennsylvania law as recognizing a 'limited' automobile exception. Justice Castille authored a concurring opinion in McCree reiterating his view that any Pennsylvania limitation on the automobile exception was confined to cases in which probable cause arose unexpectedly."). Alexander addressed the automobile exception to the warrant requirement, not the distinct plain view exception (or any other exception, for that matter). See, e.g., McMahon, 280 A.3d at 1073 ("Alexander addresses the automobile exception to the warrant requirement, not the plain view exception."); Commonwealth v. Thompson, 289 A.3d 1104, 1109 (Pa. Super. 2023) ("Alexander does not explicitly address other exceptions to the warrant requirement."). Indeed, one of the arguments made in Alexander in support of overruling Gary was that the law of plain view seizures would remain unchanged in the wake of Gary's demise. See Alexander, 243 A.3d at 192 ("Alexander adds a number of policy considerations in support of overruling Gary, with the primary consideration being the number of other exceptions to the warrant requirement often present in automobile cases that remain available, including voluntary consent, exigent circumstances that make it too difficult to obtain a warrant, and plain view.") (emphasis added). Our decision regarding the automobile exception in Alexander did not constitute a stealth reversal of the plain view holding of McCree.

Saunders nonetheless argues "Alexander, with its warrant requirement for an intrusion into a car, dramatically changed the application of the plain view doctrine in Pennsylvania." Saunders's Brief at 6-7. He elaborates that the "narrowest ground of agreement in McCree" was the language in the lead opinion providing that "'the limited automobile exception under Article I, §8 may, depending on the circumstances of each case, serve as the basis of the lawful right to access an object seen in plain view inside a vehicle[,]'" and the "limited automobile exception" was "unquestionably addressed in Alexander." Id. at 18, 23, quoting McCree, 924 A.2d at 631 (emphasis omitted). But the language quoted by Saunders does not represent the precedential holding arising from

McCree pursuant to Marks. Under the Marks rule, the binding position of a fragmented court must be a "rationale explaining the result[,]" Marks, 430 U.S. at 193, and "a majority of the Court must be in agreement on the concept[,]" In re Avery, 286 A.3d at 1228. The formulation foregrounded by Saunders does not satisfy either criteria. The abstract and conditional concept that the automobile exception may establish lawful access to a car does not explain why there was a legal right to access under the particular facts of the McCree case. From the broad and contingent pronouncement that the police might possibly be able to access a car under the automobile exception, it does not necessarily follow that the specific intrusion in McCree was lawful. The language highlighted by Saunders is a general statement of law, not a rationale explaining the result of McCree. Moreover, Justice Castille expressly refused to agree to the lead opinion's "explication and application of the automobile exception[,]" McCree, 924 A.2d at 634, leaving the language quoted by Saunders without the agreement of a four-Justice majority. Furthermore, "[t]he [United States] Supreme Court . . . has generally regarded the narrowest ground as the rationale offered in support of the result that would affect or control the fewest cases in the future." United States v. Martino, 664 F.2d 860, 873 (2d Cir. 1981), quoting Novak, supra, at 764. Saunders's preferred formulation references a "limited automobile exception under Article I, §8" and thus implicates all cars searches in the Commonwealth. In this way, it is not narrowly confined to plain view seizures from automobiles. Notwithstanding Saunders's arguments otherwise, the narrowest majority position justifying the result in McCree, and thus the holding of McCree enjoying precedential status under Marks, is that the unexpected development of probable cause permits lawful access to a car under the final prong of the plain view doctrine.⁹

9 The dissent argues "[t]here was no overlap on the concept of the limited automobile exception between the [plurality] and Justice Castille's concurrence in McCree that can support application of the Marks rule." Dissenting Opinion at 20. We agree there was not a majority agreement in McCree concerning the contours of the automobile exception. But this is irrelevant to our disposition. Notwithstanding the dissent's mistaken claims to the contrary, see id. at 1, 28, we are not adopting or applying the "limited automobile exception" in this case. Rather, we are construing the distinct plain view exception. As discussed, as to this distinct issue, a majority consensus clearly did emerge from McCree. Four Justices plainly agreed that unexpected probable cause establishes a lawful right of access under the third prong of the plain view exception. Similarly, because the binding holding of McCree simply sets the standard for lawful access to a car under the plain view doctrine, and does not define exigent circumstances under Pennsylvania's automobile exception, it does not create a "per se exigency exception" "at odds with Alexander's core holding that requires a case-by-case, totality-of-the-circumstances analysis of whether an exigency exists[.]" Id. at 6, 22.

The continued vitality of McCree post-Alexander means there are different standards for access to a car under the plain view exception and Pennsylvania's automobile exception. Put simply, under McCree, lawful access to seize an item from a car under the third prong of the plain view doctrine requires the unexpected development of probable cause, whereas, pursuant to Alexander, the automobile exception requires probable cause and exigent circumstances.

The existence of a different standard for plain view seizures is appropriate. This is because there is a distinction between "the limited intrusion of the seizure of evidence in plain view from the greater intrusion of an automobile search." McMahon, 280 A.3d at 1073; see generally LaFave, supra, at §7.2 (relevant question "is what kinds of vehicle cases involve a sufficiently high degree of intrusion into privacy interests that before-the-fact judicial control is essential"). By definition, a plain view seizure from a car does not involve confiscation of an object shielded from public view. As such, as a general matter, "the seizure of an object in plain view does not involve an intrusion on privacy." Horton, 496 U.S. at 141. See Commonwealth v. Petroll, 738 A.2d 993, 999 (Pa. 1999) ("There can be no reasonable expectation of privacy in an object that is in plain view."); Gary, 91 A.3d at 150 (Todd, J., dissenting) ("When one rides in an automobile, he accepts that he himself and those items left uncovered on the dashboard or seat are no longer 'private.'") (citation omitted); see also Alexander, 243 A.3d at 202 ("[W]e adopt Justice Todd's compelling analysis as our own.").

Of course, we recognize Saunders's principal complaint is not that police intruded upon any protected privacy interest he held in the stolen gun that was observed in plain view; rather, it's that his privacy interest in the vehicle was supposedly invaded when Officer Ibbotson momentarily trespassed into it to seize the gun. See Saunders's Brief at 10 ("A plain-view seizure thus cannot be justified it if is effectuated by unlawful trespass."), quoting Collins v. Virginia, 138 S.Ct. 1663, 1672 (2018); see also Alexander, 243 A.3d at 202 (explaining "possessory and privacy interests can be different with respect to the vehicle itself versus items within that vehicle"). Again though, by its very nature, a plain view seizure from a car does not involve police intrusion into "features that let [car] users store items away from public view such as trunks, glove boxes, and internal storage compartments." Alexander, 243 A.3d at 192. Hence, in the plain view seizure context, the police intrusion into the car, and the attendant invasion of the defendant's reasonable expectation of privacy in the vehicle, can never approach that of a full-scale car search.¹⁰Rather, the full extent of the police entry into a car in the circumstance of a plain view seizure will always be limited to items and areas already fully exposed to public view. So the potential invasion of privacy and potential intrusion by police are necessarily less substantial in the context of a plain view seizure than they are in the context of a car search. These distinctions justify distinct standards.

10 We reject Saunders's claim that "[t]he degree of intrusion is irrelevant." Saunders's Reply Brief at 2. The degree of intrusion bears on the degree of invasion of privacy. Again, "[p]rotection of reasonable expectations of privacy is the primary purpose of the prohibition against unreasonable searches and seizures" under our state and federal Constitutions. Holzer, 389 A.2d at 102 n.6. Moreover, the degree of intrusion implicates the reasonableness of the police action. See Commonwealth v. Worthy, 957 A.2d 720, 728 (Pa. 2008) (Castille, J., concurring) ("The central command of the Fourth Amendment, and Article I, Section 8, is reasonableness."). An incursion narrowly limited to addressing law enforcement needs is more likely to be reasonable than one which is broader than necessary.

Indeed, the facts of this case prove the point. The intrusion by Officer Ibbotson was decidedly minimal. From outside of the car, he merely reached a few inches into the car through the open driver's-side door directly to where the gun was located on the floor by the driver's seat and immediately seized the weapon. This was the full extent of the intrusion. No force or damage was required to gain entry; the door was open. No more than the officer's left hand and wrist actually entered the car. He stopped with confiscation of the gun. He did not probe anywhere else in the car, much less go into the glove box, any containers in the vehicle, or the trunk. It was all over in a matter of a few seconds. In short, the police intrusion was narrowly circumscribed to address and neutralize the unsecured gun on the floor of the open car. At most, it resulted in a de minimis intrusion on Saunders's expectation of privacy in the vehicle.¹¹

11 The dissent insists "[a] seizure is a seizure and a violation of Saunders' possessory interest cannot be minimized simply because his privacy interest was negligible[.]" Dissenting Opinion at 27. Any possessory interest Saunders may have had in the admittedly unlicensed and stolen gun in his wife's car was tenuous at best. See United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010) (plain view seizure "is justified by the fact that any ownership or possessory interest in the item is defeated by its illegality"); United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) ("[T]here is no possessory interest in contraband."). To the extent Officer Ibbotson intruded at all on Saunders's possessory interest when the officer seized the illegal gun, the intrusion was no less negligible than the de minimis intrusion on his privacy interest. See United States v. Place, 462 U.S. 696, 705 (1983) ("The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent."). The dissent also emphasizes that "[a]fter seizing the weapon and placing it in the police car, Officer Ibbotson returned to Saunders'[s] car and rummaged through it for several minutes." Dissenting Opinion at 27 n.21. However, the only police conduct challenged by Saunders, and thus the only police conduct in question on appeal, is the officer's very brief act of reaching inches into the car from the street to seize the firearm in plain view. See Saunders's Brief at 6 (arguing it was "constitutionally impermissible" for "the police [to] simply enter[] the car and seize[] the contraband"); Commonwealth's Brief at 8 ("Defendant does not challenge the legality of the traffic stop or any other action taken by the police apart from seizing the gun.").

Importantly, while the McCree standard is appropriately less demanding than the Alexander standard, it provides meaningful protection to drivers and car owners. The requirement of unexpected probable cause "guards against pretextual automobile stops." Commonwealth v. Perry, 798 A.2d 697, 718 n.8 (Pa. 2002) (Castille, J., concurring). If the police have advance knowledge a car may contain contraband or evidence of a crime, they cannot stop the vehicle in the hope of gaining plain view access to the item; they have to get a warrant. Similarly, if the police have prior information a parked car may contain a criminal item, they cannot simply approach the car and invoke the plain view exception to the warrant requirement. Finally, it bears emphasis that the reach of the McCree holding, like the applicability of Alexander, is limited to the facts which gave rise to it: a plain view seizure from a car. See Maloney v. Valley Medical Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009) ("[D]ecisions are to be read against their facts[.]"). It is in this circumstance, and this circumstance alone, that the McCree standard applies. In the context of a car search on the other hand, the Alexander standard controls.¹²

12 The dissent contends "[t]he use of the first two prongs of the plain view doctrine to fully satisfy the third renders the third prong meaningless[.]" Dissenting Opinion at 26. Neither of the first two prongs require the unexpected development of probable cause. The McCree standard is not meaningless.

Having concluded we are bound by the common holding of a majority of this Court in McCree that the unexpected development of probable cause establishes a lawful right of access to seize an item in a car under the third prong of the plain view doctrine, it remains for us to apply this holding to the facts of this case. Presently, the police had no knowledge prior to stopping Saunders for unrelated traffic violations that he had an unlicensed gun in his car. Rather, the probable cause arose unexpectedly on the street following the traffic stop. The McCree standard is readily satisfied on these facts, so the seizure of the gun was lawful under the plain view exception to the warrant requirement.¹³Accordingly, we affirm the Superior Court's order affirming the denial of suppression.¹⁴

13 The dissent raises the hypothetical of "contraband observed through a window in plain view in an individual's home[.]" Dissenting Opinion at 23 n.16. Though we offer no opinion on facts not before us, we note that Alexander, via its "adopt[ion]" of Justice Todd's dissent in Gary, Alexander 243 A.3d at 202, "acknowledge[d] that our Court has previously stated that the expectation of privacy people possess in an automobile is not identical to that which they possess with respect to the interior of their home[.]" Gary, 91 A.3d at 150 (Todd, J., dissenting).

14 In light of our disposition, we do not reach the Commonwealth's alternate argument that the seizure of the gun was permissible under Long and Morris.

Justices Mundy, Brobson and McCaffery join the opinion.

Chief Justice Todd files a concurring opinion.

Justice Donohue files a dissenting opinion in which Justice Wecht joins.

CONCURRING OPINION

TODD, CHIEF JUSTICE

I join the majority in almost all respects.¹ I have been a strong advocate of interpreting Article I, Section 8 of the Pennsylvania Constitution to provide greater protections for our citizens in appropriate circumstances. Thus, I have dissented to the putative adoption of the federal automobile exception for purposes of state constitutional law in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (Todd, J., dissenting), and joined in full our Court's landmark decision in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), wherein we concluded that Article I, Section 8 of the Pennsylvania Constitution affords greater protection to our citizens than the Fourth Amendment and that our Constitution "requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile," id. at 181. Nevertheless, I believe that those decisions are distinguishable in fact and law from a constitutional analysis regarding the plain view doctrine. Indeed, both Gary and Alexander involved warrantless searches of closed containers and, when read against their facts, these decisions do not reach so far as to engraft an exigency requirement upon the plain view doctrine, which involves the seizure of property in public view that is immediately recognizable as contraband.²

1 I distance myself from the majority's ascribing relevance to the stop being in a high crime area, see Majority Opinion at 1, 12, for purposes of whether there exists an exigency under the plain view doctrine. As explained by the majority, for the plain view doctrine to apply here, we need find only that the police had no advance warning that the automobile would be a target of the police investigation to allow lawful access to remove the observed contraband from the vehicle. See Majority Opinion at 18 (explaining that, in Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007) (plurality), four Justices "agreed that the unexpected development of probable cause establishes a lawful right of access to the interior of a car under the third prong of the plain view doctrine").

2 Indeed, in my dissent in Gary, wherein I urged the rejection of the federal automobile exception, part of my analysis involved privacy expectations. I made it clear that such expectations were limited to areas of the vehicle that were not in public view. Specifically, I reasoned that:

automobiles are specifically designed and built with features such as trunks, glove boxes, and internal storage compartments, some of which may only open with a special key, in order to allow personal items to be deliberately secreted from public view during transport. Hence, the deliberate provision by automakers of these private places as standard features of every car, and their frequent utilization by the owners and occupants of cars to store items out of public sight, evidences a societally reasonable expectation that the privacy of all such areas in an automobile shielded from public view will be afforded the maximum degree of protection from unlawful and unjustified intrusion.

Gary, 91 A.3d at 266-67 (Todd, J. dissenting) (emphasis added).

As penned by former Chief Justice Saylor, "it is axiomatic that the holding of a judicial decision is to be read against its facts." Lance v. Wyeth, 85 A.3d 434, 453 (Pa. 2014); see also Oliver v. City of Pittsburgh, 11 A.3d 960, 966 (Pa. 2011). This legal principle protects against an unintentional or improper extension of governing principles beyond scenarios to which they rationally relate. See Lance, 85 A.3d at 453-54. In my view, applying our precedent regarding the search of closed containers, where citizens' privacy interests are at their zenith, to the seizure of apparent contraband in plain view, where citizens' privacy interests are at their lowest point, constitutes an unwarranted extension of the principles enunciated in Gary and Alexander to the plain view doctrine.

DISSENTING OPINION

DONOHUE, JUSTICE

The Majority incorrectly relies on a non-precedential decision in Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007) (plurality), to hold that, following Commonwealth v. Alexander, 243 A.3d 177 (2020), police are permitted to conduct a warrantless seizure from a vehicle when they observe contraband in plain view therein pursuant to the so-called limited automobile exception.¹Justices participating in the McCree decision rejected the notion that any consensus on the concept of a limited automobile exception had been achieved in that case when they decided Commonwealth v. Hernandez, 935 A.2d 1275 (Pa 2007), just six months later. Furthermore, the limited automobile exception cannot survive Alexander in any event and, under the facts of this case, it is clear that the police seized contraband in plain view from the defendant's vehicle without proving a cognizable exigency that would excuse their failure to obtain a warrant. Consequently, I would reverse the Superior Court's decision applying the limited automobile exception and reverse the trial court's denial of suppression of the seized firearm. Thus, I respectfully dissent.

1 We granted review to answer whether this Court's holding in Alexander requires "a fact specific assessment to determine whether exigency exists to provide officers with a right of access to the interior of an automobile under the plain view exception to the warrant requirement?" Commonwealth v. Saunders, 301 A.3d 865 (Pa. 2023) (per curiam).

Background

Both Article I, § 8 of the Pennsylvania Constitution ("Section 8")² and the Fourth Amendment to the United States Constitution³ ("Fourth Amendment") require that police obtain a warrant to conduct a search or seizure in the absence of a handful of exceptions.⁴Pertinent here is the category of exceptions under which "a warrantless search is allowed when there is compelling need for official action and no time to secure a warrant." Mitchell v. Wisconsin, 588 U.S. 840, 849 (2019) (internal citations omitted) (emphasis added). An exigency exception most often arises in emergencies, such as when police are engaged in pursuit of a fleeing felon, or when they need to take immediate action to prevent the destruction of evidence or alleviate a potential danger to police or others. See Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa. 1994). This court refrains from establishing "a definition of exigency that will apply to all scenarios" under Section 8, because identifying a warrant-excusing exigency is a fact-based consideration that "is not amenable to per se rules[.]" Alexander, 243 A.3d at 208. And while exceptions exist, "[o]btaining a warrant is the default rule." Id.

2 Article I, Section 8 of the Pennsylvania Constitution states:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no 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, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. I, § 8.

3 The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

4 "It is well-established that, in the absence of a warrant or a recognized exception to the warrant requirement, a search or seizure is presumptively unreasonable." Commonwealth v. Romero, 183 A.3d 364, 396 (Pa. 2018).

Beginning with Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court of the United States inverted this default rule for vehicle searches for purposes of the Fourth Amendment. Under the federal automobile exception, warrantless searches of vehicles are permissible based on the presence of probable cause alone.⁵ Despite decades of resisting outright adoption of the federal automobile exception, this Court briefly tarnished Section 8 in an anomalous plurality decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (Opinion Announcing the Judgment of the Court, "OAJC"), which announced that Section 8 provides "no greater protection than the Fourth Amendment" for vehicle searches, thereby adopting the federal automobile exception. Gary, 91 A.3d at 104. The lesser standard under the Fourth Amendment was justified on two pillars, the first grounded in an inherent exigency due to the mobility of a vehicle, and the second grounded in a philosophical assumption about privacy. See South Dakota v. Opperman, 428 U.S. 364, 367 (1976) ("[T]he inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible."); id. ("Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.").

5 See Chambers v. Maroney, 399 U.S. 42, 48 (1970) (observing that, in Carroll, the Supreme Court of the United States "held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize").

In Alexander, we held that Section 8 "affords greater protection to our citizens than the Fourth Amendment" by requiring "both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile." Alexander, 243 A.3d at 181. In doing so, we rejected the diminished expectation of privacy rationale that animated the federal automobile exception. Id. at 204 (stating that Section 8 "requires that we ask whether the violation of privacy interests inherent in allowing widespread warrantless searches is compatible with the Pennsylvania Constitution. We think it is not … [d]ue to the rich history of our charter protecting privacy"). In reaching this conclusion, Alexander adopted then-Justice Todd's robust Edmunds ⁶ analysis in her dissent in Gary. Id. at 202. That analysis found that citizens possess an "objectively reasonable expectation of privacy" in their vehicles in modern society, as the "automobile functions as a veritable storehouse of their intimate personal possessions, i.e., their 'home away from home.'" Gary, 91 A.3d at 152 (Todd, J., dissenting). Justice Todd also found further support for this view in the text of Section 8, observing that "the personal items stored or transported in an automobile constitute the very type of private 'papers and possessions' which are secured against unlawful search and seizure by" Section 8. Id.

6 Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). We apply an Edmunds analysis when considering whether a provision of the Pennsylvania Constitution provides greater protection than that provided by the United States Constitution. Under Edmunds, we consider: "1) [the] text of the Pennsylvania constitutional provision; 2) [the] history of the provision, including Pennsylvania case-law; 3) related case-law from other states; [and] 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence." Alexander, 243 A.3d at 188 (quoting Edmunds, 586 A.2d at 895).

Our decision in Alexander reset our Section 8 jurisprudence to its pre-Gary status. However, what predominated the pre-Gary era was far more conflict than consensus. Prior to Gary, members of this Court attempted with little success to define a "limited automobile exception" under Section 8. Alexander, 243 A.3d at 188.

In overruling Gary in Alexander, we rejected the federal automobile exception because it permitted warrantless searches "even in scenarios where it is beyond question that police officers could have sought a warrant before the vehicle is searched." Id. at 204. That is, we rejected the Fourth Amendment model because it assumes a warrant-excusing exigency by default in all vehicle searches, even when those exigencies are not present in a particular case. By contrast, Section 8 demands a warrant unless police show they possess "both probable cause and exigent circumstances," more closely aligning our jurisprudence governing vehicle searches with home searches. Id. at 207. While Alexander's mandate was clear in this regard, its mandate "to return to the pre-Gary application of our limited automobile exception" left many questions unanswered. Id. Alexander did not explicitly endorse the limited automobile exception, but its mention has proven to be confusing to the bar, as is demonstrated by the parties' arguments in this case, because the limited automobile exception-as it is applied by the lower courts today-is directly at odds with Alexander's core holding.

Limited Automobile Exception

In the wake of Alexander, the Superior Court has relied on the limited automobile exception to avoid Alexander's mandate in vehicle searches precipitated by discovery of contraband in plain view.⁷ This largely stems from the pre-Alexander Superior Court decision in Brown, which defined the limited automobile exception, as now applied in the Superior Court, by stitching together a purported majority holding from the various opinions in McCree, an approach adopted by the Majority today. See Majority Op. at 16-18. This creates a de facto, categorical exception to the warrant requirement at odds with Alexander's core holding that requires a case-by-case, totality-of-the-circumstances analysis of whether an exigency exists to permit a warrantless search once probable cause is established. I think it is time for this Court to put the obsolete and confusing limited automobile exception to rest.

7 See Commonwealth v. McMahon, 280 A.3d 1069, 1074 (Pa. Super. 2022) (holding that when contraband is observed in plain view in a vehicle from a lawful vantage-point, the lack of advance notice and opportunity to obtain a warrant-the limited automobile exception-provides the officers with a lawful right of access to seize the object in question) (applying Commonwealth v. Brown, 23 A.3d 544, 557 (Pa. Super. 2011) (en banc)); Commonwealth v. Smith, 285 A.3d 328, 334 (Pa. Super. 2022) (holding that because the police officer "lacked advance notice and an opportunity to obtain a warrant before commencing [the] search, he had a lawful right of access to the interior of Appellee's vehicle to recover the evidence"); Commonwealth v. Davis, 287 A.3d 467, 473 (Pa. Super. 2022) (applying McMahon and Smith in rejecting a claim that "Alexander requires the Commonwealth to prove exigent circumstances where the officers have lawfully seized an object under the plain view doctrine"). The decision under review applied McMahon in concluding that the warrantless intrusion into Saunders' vehicle to seize a firearm in plain view was lawful. Commonwealth v. Saunders, 290 A.3d 676 (Pa. Super. 2022) (unpublished memorandum).

As discussed below, the limited automobile exception has been defined in a variety of ways over the years, lending itself to inconsistent application. In its most expansive form, it would appear to apply in nearly every police-citizen interaction involving a vehicle search where probable cause did not develop long before the warrantless search, such as in this case, where probable cause to search first arose upon the discovery of contraband in plain view during a traffic stop. In other incarnations, that definition is substantially narrowed by consideration of whether, despite the sudden appearance of probable cause during a traffic stop, it was still reasonably practical for police to obtain a warrant before conducting the search. To understand what it is and how to define it, and before its viability post-Alexander can be considered, it is imperative to understand its contentious origins.

This Court consistently rejected adoption of the full federal automobile exception prior to Gary, but it nonetheless found it difficult to precisely define the distinction between Section 8 and the Fourth Amendment in that regard. Out of that chaos emerged various manifestations of the limited automobile exception. Although not subsumed within her Edmunds analysis, Justice Todd explained in her Gary dissent that she agreed with the plurality in Gary that, before Gary was decided, the inherent mobility of a vehicle was never alone a sufficient exigency to justify a warrantless search in Pennsylvania. Id. at 140 (citing, inter alia, Commonwealth v. Cockfield, 246 A.2d 381 (Pa. 1968)). In

Cockfield, this Court stated:

Although it [s]ometimes may be reasonable to search a movable vehicle without a warrant, the movability of the area to be searched is not alone a sufficiently 'exigent circumstance' to justify a warrantless search. Other circumstances, for instance a serious possibility that the movable vehicle may, in fact, be moved before a warrant can be obtained, are necessary.

Id. at 384 (emphasis added). Thus, Cockfield contemplated an exigency concerning the possibility that a vehicle might escape the reach of police unless a search was conducted immediately. Under that framework, there must be some "serious possibility" that the vehicle might be moved, language leaving no room for mere speculation or conjecture about improbable risks that the vehicle would escape before police can secure a warrant. That is, the mere fact that a vehicle could be moved in the abstract was not enough to prove an exigent circumstance under Section 8.

In Commonwealth v. Baker, 541 A.2d 1381 (Pa. 1988), the exigency question was more broadly framed. Baker stated that "certain 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." Id. at 1383 (emphasis added). Baker's framing of the rule clearly captured the Cockfield rule, but also contemplated that exigencies might arise during vehicle stops beyond the vehicle moving while police sought a warrant. The facts of Baker were one such instance. In that case, police developed probable cause in rapidly evolving circumstances. They received a tip that Baker committed an assault with a gun, and police began pursuing his vehicle. When approached, "he suddenly exited from his vehicle, after turning off the ignition, and began walking in circles and verbally abusing police in a loud manner." Id. at 1382. At that point, the Baker Court determined, probable cause had crystalized to believe a gun was in the vehicle, but Baker was still circling his vehicle in an irritated state. While attempting to calm him down, and before physically detaining him, police reached into his vehicle and secured two weapons. In explaining why exigent circumstances justified the warrantless search of the vehicle, the unanimous Baker Court stated:

This is not a case where police knew hours in advance that a particular vehicle carrying evidence of crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather, the instant search was conducted when police stopped a moving vehicle just thirty minutes after a reported crime. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper.

Id. at 1383. This subsidiary rationale, explaining why obtaining a warrant was not reasonably practical, began to take on a life of its own in subsequent decisions.

Soon after Baker, this Court decided Commonwealth v. Rodriguez, 585 A.2d 988 (Pa. 1991). In that case, over the course of two weeks, police repeatedly received information from reliable informants that Rodriguez and her husband would be travelling from New York to Pennsylvania with cocaine in one of several vehicles the pair were known to use. Police stopped them after they left a location where a sale had likely occurred and immediately searched the vehicle without a warrant. Relying on Baker's secondary rationale regarding the prior knowledge of the specifics of the vehicle's make and location and the fact that police were told that the couple intended to rapidly distribute the cocaine upon their arrival, the Rodriguez Court distinguished Baker on the facts in holding that the search was proper.⁸

8 Notably, neither Rodriguez nor her husband was placed under arrest until after the search was conducted. Rodriguez, 585 A.2d at 989. In determining whether police could have obtained a warrant, the Court's focus in Rodriguez was solely on what had occurred before the stop. It is unclear whether Rodriguez ever advanced the argument that police could have obtained a warrant after the stop occurred.

In Commonwealth v. White, 669 A.2d 896 (Pa. 1995), a majority of this Court stated that

police may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e., there are exigent circumstances.

Id. at 900 (emphasis added). This Court found the warrantless search of White's vehicle to be unlawful because police had probable cause to search it long before the warrantless search occurred. Police had earlier secured a warrant to search both White's residence and person yet failed to obtain one for his vehicle despite having information that White planned to transport the drugs in it. As both then-Justice Todd and the plurality in Gary agreed, "White marked a clear break with the United States Supreme Court's caselaw in this area, which, by 1995, had abandoned the requirement that exigent circumstances must exist to excuse the failure to obtain a warrant prior to an automobile search." Gary, 91 A.3d at 141 (Todd, J., dissenting).

In Commonwealth v. Luv, 735 A.2d 87 (Pa. 1999), the police had already secured a warrant to search Luv's home based on his sale of narcotics from that location to an informant and were waiting for him to bring additional drugs back to that location before they executed the search warrant. As they waited, they learned that Luv had changed his plans and had decided to take the drugs to a nightclub for distribution. Although police initially intended to obtain a warrant for his car, the situation changed when they learned that Luv was on his way to the nightclub. Police stopped Luv's car and searched it without a warrant. The Luv Court cited Baker for the applicable standard, stating that "certain exigencies may render the obtaining of a warrant not reasonably practicable under [certain] circumstances, [justifying some] vehicle searches conducted without warrants ... where probable cause was present." Luv, 735 A.2d at 93 (quoting Baker, 541 A.2d at 1383) (emphasis added). Justifying the warrantless search on exigency grounds, the Luv

Court reasoned:

The police had two choices: either stop the vehicle and search it without a warrant, or allow Luv to continue on his way, possibly resulting in the disappearance of the evidence, and in the introduction of a substantial amount of drugs to their community. There was no time to secure a new warrant. These are the exigent circumstances that justify the warrantless search of Luv's vehicle.

Luv, 735 A.2d at 94.⁹

9 But common sense tells us that was a false dichotomy. Police also could have stopped Luv's vehicle and secured him while they obtained a warrant to search his vehicle. As was the case in Rodriguez, there is no indication in Luv that the Court had ever considered this third option.

The Luv Court also distinguished White on the grounds that the police had initially believed Luv would be in possession of the drugs at his residence for distribution, a circumstance that changed rapidly after they had already secured a warrant for the home. Id. Justice Castille concurred in Luv, expressing his belief that Pennsylvania should adopt the federal automobile exception wholesale, a position he previously articulated in his dissent in White. Id. at 95 (Castille, J., concurring); see also White, 669 A.2d at 909 (Castille, J., dissenting) (stating "that the automobile exception to the warrant requirements of this Commonwealth should be a per se rule regardless of how much time police may have to obtain a warrant").

Justice Castille's position started to gain additional supporters following Luv. Three years later, in Commonwealth v. Perry, 798 A.2d 697 (Pa. 2002), a plurality of this Court affirmed the denial of suppression where there was a warrantless search of an automobile for firearms despite that the occupants had already been taken into custody. But Perry produced four separate opinions on a six-member court. The lead opinion, authored by Justice Cappy, was not joined by any other justices. In his view, the search was justified by officer and public safety concerns, because if the defendants' vehicle was not immediately searched, police would have had to "organize an immediate search of the entire route that the defendant had traveled while fleeing through the city to recover the weapons." Id. at 702 (Cappy, J., OAJC). Additionally, he believed it was "of critical import" that the targeted vehicle "was in the middle of a lane of traffic with its engine running" when the search was conducted. Id. at 703.

Justice Castille concurred in the result because he would have reached the same disposition applying the federal automobile exception. He described the limited automobile exception that he rejected as permitting a warrantless search when police did not have the opportunity "to secure a search warrant before probable cause to search the vehicle arose unexpectedly[.]" Id. at 706 (Castille, J., concurring). He was joined by Justice Newman.

Justice Saylor wrote a separate concurrence, agreeing with Justice Cappy that this Court must apply a fact-specific analysis of exigency. Id. at 719 (Saylor, J., concurring).

He rejected Justice Castille's framing of the limited automobile exception as being defined "solely in terms related to the development of probable cause." Id. Instead, he identified the relevant exception to the warrant requirement under Section 8 as arising only when it is "not reasonably practicable for the police to obtain a warrant." Id. (citing Baker). He noted that this framing of the exception made sense because it was more closely tied to the origins of the federal automobile exception long before it became a per se rule. Id. at 720 n.3 (citing Carroll). Justice Saylor then concluded that the limited automobile exception was satisfied on those terms based on the safety rationale set forth in Justice Cappy's OAJC.

Justice Nigro, joined by then-Chief Justice Zappala, would have found the search unconstitutional. He seemed to accept Justice Saylor's framing of the limited automobile exception as turning on a fact-specific analysis of whether it was practicable to obtain a warrant under the circumstances, but rejected that the standard was met given, inter alia, that the defendants had already been arrested when the vehicle was searched. Id. at 722 (Nigro, J., dissenting).¹⁰

10 He also rejected the importance of the status of the car as running and in a traffic lane, suggesting that a limited intrusion to turn off the car may have been justified, but that the search for weapons was not. Perry, 798 A.2d at 723 (Nigro, J., dissenting). Even if police had to move the car, he rejected the OAJC's rationale that the presence of the firearm inside the car was a significant risk to police. Id.

Five years later, in McCree, this Court again failed to come to an official consensus on the meaning and/or applicability of the limited automobile exception. McCree is nonetheless important because, although a plurality ruling like Perry, it was the last decision by this Court concerning the limited automobile exception before Gary. According to the Superior Court in Brown, McCree established how the limited automobile exception applied in Pennsylvania just before Gary was decided. See Brown, 23 A.3d at 557. The Majority regrettably follows suit today. Majority Op. at 25 (holding "we are bound by the common holding of a majority of this Court in McCree that the unexpected development of probable cause establishes a lawful right of access to seize an item in a car under the third prong of the plain view doctrine").

In McCree, a plain view case, an undercover police officer convinced a man named Boyer to purchase drugs for him. The disguised officer gave him money and Boyer returned with several pills. The officer subsequently gave more money to Boyer and followed him, observing that Boyer appeared to be purchasing more pills from inside McCree's vehicle. When police approached the vehicle, McCree shoved a pill bottle beneath his seat. After McCree voluntarily exited the vehicle, police reached in and seized the pill bottle and two additional pill bottles found in the driver's door pocket. McCree, 924 A.2d at 623-24.

This Court remained divided into several factions when addressing the seizure in McCree. Justice Eakin wrote the lead plurality opinion, joined by Justices Saylor and Fitzgerald. He first recognized that under the plain view doctrine, police may seize an item in plain view without a warrant if (1) they observe the contraband from a lawful vantage-point; (2) the incriminating character of the object is immediately apparent; and (3) the police have a lawful right of access to the object. Id. at 625 (Eakin, J., OAJC).¹¹After resolving confusion over application of the plain view doctrine, Justice Eakin then considered whether an exception to the warrant requirement applied to satisfy the lawful access prong.

11 At the time McCree was decided, the lower courts had begun to disregard the third element of the plain view test. McCree reaffirmed the importance of the lawful access prong, noting that it required proof of an independent exception to the warrant requirement and, as such, calling the plain view doctrine an exception to the warrant requirement was somewhat of a misnomer, because observing an object in plain view did not give police the lawful authority to access the space in which it was observed. See McCree, 924 A.2d at 627 (applying Horton v. California, 496 U.S. 128 (1990)). This aspect of the McCree decision was unanimous. See McCree, 924 A.2d at 632 (Cappy, C.J., concurring); 634 (Castille, J., concurring).

Justice Eakin maintained that a "limited automobile exception" applied in Pennsylvania because of 1) the inherent mobility of a vehicle, and 2) a diminished expectation of privacy in the vehicle. Id. at 630 (Eakin, J., OAJC). In other words, he cited the justifications for the federal automobile exception. Within that framework, he stated:

We have allowed warrantless seizures "where police do not have advance knowledge that 'a particular vehicle carrying evidence of crime would be parked in a particular locale, ... the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search [without a warrant] proper.'" Commonwealth v. Rodriguez, 585 A.2d 988, 991 (Pa. 1991) (citing Baker, [541 A.2d] at 1383).

Id.

Justice Eakin determined that the pill bottles were lawfully seized, believing that probable cause arose suddenly when police observed McCree hiding the first bottle. The limited automobile exception applied, he wrote, because the officer had "no advanced warning that appellant or his Pontiac would be the target of a police investigation." Id. at 631. He provided no explanation of why there was inadequate time and opportunity to obtain a warrant, despite having recited that standard. However, I note the OAJC in McCree gives the impression that McCree voluntarily stepped out of the vehicle and had not yet been arrested when the seizure occurred. Id. at 624. Additionally, Boyer was still in the passenger seat. Id. at 632 (Cappy, C. J., concurring).

Then-Chief Justice Cappy concurred, disagreeing with the OAJC's treatment of the limited automobile exception as having satisfied the third prong of the plain view test. He stated that the limited automobile exception remained in flux due to disagreements on the Court, and he noted the OAJC's failure to acknowledge or discuss the controversy. Id. at 633-34. Chief Justice Cappy found that it was unnecessary to invoke the limited automobile exception, instead concluding that the pill bottles had been seized pursuant to the search-incident-to-arrest exception to the warrant requirement. Under that rubric, he determined that McCree was under arrest when he was removed from the vehicle, allowing police to search the area within McCree's immediate control, which is where the pill bottles were found. Justices Baer and Baldwin joined Chief Justice Cappy's concurrence.

Justice Castille, champion of the federal automobile exception, also concurred. Writing only for himself, he reiterated his belief that Section 8 "should be coextensive with" the Fourth Amendment and should therefore recognize the federal automobile exception. Id. at 635 (Castille, J., concurring). However, in an alternative analysis, he argued that the circumstances in McCree justified a warrantless search under the limited automobile exception, which he defined as probable cause arising unexpectedly, "in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose." Id. (citation omitted). Applying that standard, he opined:

In this case, probable cause respecting the vehicle did arise unexpectedly as police were engaged in an investigation of an unfolding retail illegal drug operation. Moreover, in such circumstances, it was not reasonably practicable to expect police to secure a warrant prior to searching the vehicle. And, moreover, there is no reason to believe that police manipulated the circumstances in order to subvert the warrant requirement.

Id.

This Court only meaningfully addressed McCree once before Gary was decided, in Commonwealth v. Hernandez, 935 A.2d 1275 (Pa 2007).¹² Hernandez was a vehicle search case. It cited McCree for the proposition that under Section 8, a warrantless vehicle search requires both probable cause and exigency, where the exigency must involve more than a vehicle's mobility. Hernandez, 935 A.2d at 1280. Hernandez then proceeded to determine whether "the possibility of danger can rise to the level of exigent circumstances in the context of a vehicle search[.]" Id. at 1281. As to the limited automobile exception, the Hernandez Court stated only that while "the discussion regarding the requirements for warrantless vehicle searches in McCree was not necessarily crucial to the resolution of the matter, the various expressions in that case illustrate the differing, current viewpoints held by members of this Court." Id. at 1281 n.1. In other words, Hernandez did not observe an obvious consensus that could be cobbled together from the various opinions in McCree regarding the limited automobile exception beyond the requirement that Section 8 requires both probable cause and an exigency beyond the mobility of a vehicle.

12 McCree was cited two other times, in Commonwealth v. Chase, 960 A.2d at 108 (Pa. 2008), and Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010). In Chase, we cited McCree solely for the proposition that there is a lesser expectation of privacy in vehicles, a position that cannot survive Alexander. Jones did not involve a vehicle search, and only cited McCree for its definition of the plain view doctrine.

In that regard, the importance of Hernandez was two-fold. First, it established that a potential danger to police can establish a warrant-excusing exigency. Id. at 1282 ("We hold today, without equivocation, that where there is potential danger to police or others in the context of a vehicle stop, exigency has been established for purposes of a warrantless search."). Second, Hernandez held that whether a potential danger to police exists is a fact-specific inquiry that is not satisfied by a mere claim of danger. Id. ("The fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case.") (emphasis added). Applying that standard, the Hernandez Court sustained the suppression order in that case because the officer who conducted the search had invoked the notion of safety to justify his failure to obtain a warrant, but he did not "attempt to explain why he was concerned for his safety." Id.

Although Hernandez did not find a consensus in McCree as to the limited automobile exception, the Superior Court endeavored to find one in Brown, a decision I authored. This Court has only cited Brown one time-in Alexander-and only for the proposition that this Court had consistently rejected the federal automobile exception in favor of a limited automobile exception. In Brown, the defendant robbed two individuals at an ATM machine and then fled in a minivan. Police pulled the minivan over and tried to maintain the status quo as other officers interviewed the victims at the scene of the crime. Once it was clear that Brown matched the victims' description of the perpetrator, the police decided to arrest him. While they attempted to effectuate the arrest, Brown pulled away and fled. He was quickly detained nearby. Police observed what turned out to be a toy gun in plain view in the minivan, entered the vehicle to seize the gun and, in the process, discovered additional evidence implicating Brown in the robbery. See Brown, 23 A.3d at 547-48.

The Superior Court in Brown was forced to decide the contours of the limited automobile exception as the Commonwealth did not suggest a safety concern existed to justify the warrantless search of Brown's minivan. Instead, the Commonwealth advanced the notion that McCree created a de facto majority decision on the limited automobile exception by reading together McCree's OAJC with Justice Castille's concurrence. Id. at 551. The Brown court agreed, although it acknowledged that the OAJC in McCree did not hold precedential value. Id. at 556. The Brown court also acknowledged that Justice Castille's concurrence in McCree did not contain any language expressly agreeing with the OAJC. Id. Nonetheless, the court looked to "the substance of the concurrence to determine the extent to which it provides precedential value to points of agreement." Id.

Conducting that analysis, the Brown court concluded:

Justice Castille's concurrence in McCree narrowly inures the plurality's OAJC with precedential value regarding automobile searches and seizures in the following limited respect: where

police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage-point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access to seize the object in question.

Id. at 557 (emphasis added).

In my view, in hindsight, the opinion of the en banc Superior Court panel in Brown on the limited automobile exception was wrong but, regardless, even if it was correct at the time, it did not survive Alexander. The Majority today repeats and aggravates the error of Brown. Justice Castille's concurrence in McCree was first and foremost a reiteration of his belief that the federal automobile exception should have applied, under which there is no consideration of whether an actual exigency existed to excuse the warrant requirement, including the ostensible exigency involving the sudden development of probable cause. Moreover, in beginning his concurrence, Justice Castille specifically rejected the "status and contours" of the limited automobile exception as defined by the OAJC, and only concurred in the result. Id. at 634. I believe today that the Brown Court should not have read any further into Justice Castille's opinion, and nor should this Court today.

Only in his alternative analysis in McCree-i.e., the dicta contained within a concurrence to a plurality opinion-did Justice Castille attempt to state a definition for the limited automobile exception (that he did not believe even existed), and his application of that standard was internally inconsistent. On one hand, he stated that the standard was that the limited automobile exception applied when police were prevented from securing a warrant before probable cause arose unexpectedly, but in applying the standard in his dicta, he later stated that it applied because it was not practical for police to get a warrant before the search occurred. See McCree, 924 A.2d at 635 (Castille, J., concurring).¹³These statements do not articulate the same standard.

13 The Brown decision did not explain which version of the standard it was adopting, stating only that "the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access[.]" Brown, 23 A.3d at 557.

The Majority applies the Marks rule to reconcile these disjointed dicta with the OAJC in McCree. Majority Op. at 16-18 (applying Marks v. United States, 430 U.S. 188 (1977)). As the Majority correctly observes, where fragmented decisions decide a case and "no single rationale" can explain the ruling, the holding "may be viewed as that position taken by those Members who concurred in the judgment[] on the narrowest grounds." Id. (quoting Marks, 430 U.S. at 193) (emphasis added). The Majority also is correct that "a majority of the Court must be in agreement on the concept which is to be deemed the holding." Id. at 16-17 (quoting In re Avery, 286 A.3d 1217, 1228 (Pa. 2022) (quoting Pap's A.M. v. City of Erie, 719 A.2d 273, 278 (Pa. 1998), rev'd, 529 U.S. 277 (2000)). However, "[t]he mere finding that one Justice expressed a narrower belief than others does not dispense with the requirement that a majority of the Court need agree on a concept before that concept can be treated as binding precedent." Pap's A.M., 719 A.2d at 278.

There was no "agreement on a concept" in McCree to be discerned from the OAJC and Justice Castille's concurrence. The Majority gives too little credence to a majority of the Court's nearly contemporaneous statements in Hernandez that McCree had not provided a consensus understanding of the limited automobile exception. See Hernandez, 935 A.2d at 1281 ("While the discussion regarding the requirements for warrantless vehicle searches in McCree was not necessarily crucial to the resolution of the matter, the various expressions in that case illustrate the differing, current viewpoints held by members of this Court.") Even Justice Castille, whose dicta in his concurrence

McCree drives the Majority's decision today, agreed in Hernandez that "no majority expression emerged from McCree" on "the contours of the Pennsylvania automobile exception." Id. at 1287 (Castille, J., concurring). The Majority today simply ignores that the very same members of the Court who decided McCree stated, just six months later, that they had not reached any consensus on the meaning of the limited automobile exception in McCree. There was no overlap on the concept of the limited automobile exception between the OAJC and Justice Castille's concurrence in McCree that can support application of the Marks rule. Moreover, read through the lens of Alexander, I believe this Court must expressly abandon any notion that there is a free-standing, limited automobile exception to the warrant requirement for the following reasons.

Implicit in our constitutional scheme is the principle that the needs of law enforcement, although important, do not automatically trump individual rights enshrined in Section 8. In interpreting the Fourth Amendment, the United States Supreme Court balances these often-competing concerns through the lens of "reasonableness,"¹⁴ but this Court "has struck a different balance" under Section 8, giving "greater deference" to the privacy rights enshrined in Section 8 than those "inherent in the Fourth Amendment." White, 669 A.2d at 902. Consequently, when balancing the needs of law enforcement against Section 8's warrant requirement, the Commonwealth must show more than a mere hypothetical exigency; accepting anything less would elevate the needs of law enforcement over the rights of the citizens they are entrusted to protect. See Alexander, 243 A.3d at 204 ("If the United States Constitution tips the scale towards law enforcement needs in analyzing Fourth Amendment questions, our own charter does not when addressing Article I, Section 8."); see also Hernandez, 935 A.2d 1283 (requiring proof of more than a mere claim of danger to justify the warrantless search of a vehicle on safety grounds).

14 "[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. 648, 654 (1979).

The limited automobile exception was never clearly defined by this Court as the law of Pennsylvania. As discussed above, members of this Court vacillated for decades in trying to define it in relation to the federal automobile exception. In that regard, Alexander may have confused the matter by suggesting a "return" to that doctrine, although it is clear enough that one version of the doctrine was enforced by the Superior Court between the time of Brown and Gary, and subsequently resurrected following Alexander in cases such as McMahon and Davis. However, this Court did not review the limited automobile exception in Alexander, we reviewed Gary's adoption of the federal automobile exception. Thus, Alexander's references to the limited automobile exception must be read in that context.

Furthermore, the limited automobile exception stands in direct conflict with Alexander's mandate that courts must decide "whether exigent circumstances justif[y] warrantless searches in discrete scenarios, with a focus on the particular facts." Alexander, 243 A.3d at 208. Applying Brown, the lower courts are employing the limited automobile exception in all circumstances when 1) probable cause arises suddenly, in 2) circumstances where there is no prior opportunity for police to obtain a warrant.¹⁵ The Majority takes an even more extreme view today, totally disregarding the prior-opportunity-to-obtain-a-warrant condition, and thereby adopting a standard that this Court never applied before Gary.

15 Brown, 23 A.3d at 557 (stating "where police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage-point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access to seize the object in question) (emphasis added).

The first component of the limited automobile exception according to Brown- which the Majority perplexingly establishes today as the only component of the exception-is absurd for its banality in relation to the warrant requirement. It is axiomatic that probable cause must always exist before a warrant can be obtained, and so there is nothing remotely unique about probable cause developing before police can obtain a warrant. That is how warrants work-the development of probable cause is a necessary prerequisite for police to obtain a warrant. In no circumstances can the issuance of a warrant precede a finding of probable cause.

The other temporal aspect of the first component of the Brown standard ostensibly gives credence to the notion that dispensation with the warrant requirement is dependent on how much time elapses after the development of probable cause. But when police obtain a warrant, our temporal concern about probable cause has traditionally revolved around the staleness of information, not its recentness. See Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018) (explaining that information that might otherwise support a warrant can become stale if too old, such that "probable cause may no longer exist") (citation omitted). The idea that information supporting probable cause is too fresh to require a warrant is nonsensical-to the contrary, it is the ideal type of information for purposes of establishing probable cause in a warrant application.

The sudden development of probable cause simply does not define an exigency that would justify dispensation of the warrant requirement. It runs directly contrary to our mandate in Alexander, operating as a per se exigency exception, because it will arise in every traffic stop where police discover evidence of contraband in plain view, regardless of whether police have ample time to obtain a warrant, and regardless of the presence of an actual emergency that compels an immediate action to assuage that emergency. Indeed, if the only emergency is the sudden development of probable cause, the immediate seizure of the contraband does exactly nothing to alleviate that emergency. Probable cause does not retroactively develop less suddenly because police seize the contraband without a warrant. By contrast, if there is a legitimate safety issue affecting the officers or the public arising out of contraband such as a firearm remaining in plain view, the immediate seizure of the firearm actually alleviates the attendant risk.

Moreover, reliance on the sudden-development-of-probable-cause rationale renders the third element of the plain view test wholly superfluous when the object in plain view is in a vehicle. We would certainly reject such per se exigency if a court attempted to apply it when police saw contraband through the window of a home.¹⁶ Something more must be required to pierce the warrant requirement than the timing of the onset of probable cause.

16 In her concurrence, Chief Justice Todd rationalizes the seizure in this case based on her view that, because the contraband is in plain view, "citizens' privacy interests are at their lowest point[.]" Concurring Op. at 3 (Todd, C.J., concurring). We are left to wonder whether she would apply the same logic to contraband observed through a window in plain view in an individual's home and, if not, what the distinction would be. As I explain below, the focus on privacy here is utterly misplaced, as the possessory interest in both the car and the home are not at all diminished by observations of contraband in plain view. Privacy concerns arise under the first two prongs of the plain view doctrine, both of which were conceded here by Saunders, whereas the lawful access prong does not concern privacy at all.

Justice Saylor, commenting in Perry about prior decisions stating that Section 8 requires a showing of both probable cause and exigency in every case, cogently remarked that it did not "appear to have been the Court's intent to dilute the exigent circumstances requirement by defining it solely in terms related to the development of probable cause." Perry, 798 A.2d at 719 (Saylor, J., concurring). I agree. The sudden-development-of-probable-cause rationale is a form of bootstrapping that focuses too much on probable cause and too little on any actual emergency or analogous circumstance that impedes police in their ability to procure of a warrant. As we clearly stated in Alexander, "the Gary approach is antithetical to Article I, Section 8 because it permits warrantless searches even in scenarios where it is beyond question that police officers could have sought a warrant before the vehicle is searched." Alexander, 243 A.3d at 204 (emphasis added). The same must be true of this aspect of the limited automobile exception. As such the sudden-development-of-probable-cause rationale cannot survive Alexander. Because freshly-developed probable cause is ideal for purposes of obtaining a warrant, it should never be used to justify an exception to the warrant requirement. The Majority errs today by concluding otherwise.¹⁷

17 The second component of the Brown standard concerns whether it is reasonable for police to get a warrant before the search occurs. The Majority has abandoned this component of the Brown standard without a clear explanation. I believe that component merely articulates the exigency exception potentially applicable to all warrantless searches. See Commonwealth v. Trahey, 228 A.3d 520, 530 (Pa. 2020) (stating that an exception to the warrant requirement exists when, coupled with probable cause, "the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable") (quoting Missouri v. McNeely, 569 U.S. 141, 149 (2013); id. ("Although an exigency may present itself in a variety of contexts, its defining trait is a "compelling need for official action and no time to secure a warrant.") (emphasis added) (quoting McNeely, 569 U.S. at 149).

The Plain View Doctrine

The plain view doctrine is an analytical framework that we often use to determine if a warrantless seizure is justified. Under the plain view doctrine, police may seize contraband without a warrant if 1) from a lawful vantage point, an officer observes the item in plain view; 2) the incriminating nature of the object is immediately apparent; and 3) the officer has a lawful right of access to the object. Commonwealth v. McCullum, 602 A.2d 313, 320 (Pa. 1992) (citing Horton, 496 U.S. at 136-37). The Majority's decision today misconstrues or misapprehends the nature of the doctrine by conflating the purposes of the third prong with the first two.

Unfortunately, our statement of the issue in our order granting allowance of appeal,¹⁸and the Majority's decision today, perpetuate the common mistake of calling this doctrine the plain view "exception" to the warrant requirement, an oft-repeated misnomer. The doctrine is not an exception, it

18 See n.1 supra.

provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment. "Plain view" is perhaps better

understood, therefore, not as an independent "exception" to the warrant clause, but simply as an extension of whatever the prior justification for an officer's "access to an object" may be. Texas v. Brown, 460 U.S. 730, 738-39 (1983) (footnote and quotation marks omitted) (emphasis added).

The Horton Court further explained that

[t]he "plain-view" doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner's possessory interest. If "plain view" justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.

Horton, 496 U.S. at 133-34 (footnotes and citations omitted) (emphasis added).¹⁹

19 As noted in Coolidge v. New Hampshire, 403 U.S. 443 (1971), "it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure." Id. at 465. Thus, seeing an incriminating object in plain view is the not the legal justification for a seizure, and the plain view doctrine does not supply the legal justification by itself. More is always required.

In practical terms, the first two elements of the plain view doctrine speak to the lawfulness of the initial observation and whether probable cause exists-the search elements. Neither of those elements are implicated in this case; Saunders does not dispute the incriminating nature of the firearm or the fact that it was initially observed in plain view from a lawful vantage point. He contests only the Commonwealth's satisfaction of the third prong of the plain view doctrine-the seizure element-contending that Officer Ibbotson did not have lawful access to the firearm when he seized it.

Here, the majority acknowledges Saunders' assertion that a plain view seizure cannot be justified if it "is effectuated by unlawful trespass." Majority Op. at 23 (quoting Saunders' Brief at 10). But the Majority then wholly ignores the distinction between the plain view search and the subsequent seizure that occurred, rationalizing that the warrantless trespass was justified because it did not invade a space obscured from plain view, e.g., the glove box, trunk, or other closed storage compartments inside the vehicle. Id. But this ignores the obvious: Officer Ibbotson invaded the interior of the car itself without a warrant, based solely on the operation of the first two prongs of the plain view test. He committed a trespass only permitted by a warrant or an exception thereto. The use of the first two prongs of the plain view doctrine to fully satisfy the third renders the third prong meaningless (and, as explained above, the sudden development of probable cause is not an exigency that provides an exception to the warrant requirement).

In some circumstances, police will have already established lawful access to the contraband when it is observed, such as when contraband is discovered in plain view during the execution of a valid warrant,²⁰ or when police are lawfully in a protected space for another reason, e.g., by consent. This is not one of those cases. It is not claimed by the Commonwealth, nor do the facts of this case suggest, that Officer Ibottson had authority to enter the vehicle before he observed the firearm. Rather, this case involves whether an exception to the warrant requirement provided Officer Ibbotson with lawful access. For the reasons discussed above, the limited automobile exception is not an exigency that satisfies the lawful access requirement. The fact that probable cause arose suddenly informs only the probable cause prong of the plain view test in any event, and there has never been a dispute in this case regarding the existence of probable cause.

20 This circumstance arose in Horton, where police were already inside Horton's hom pursuant to a valid warrant when they observed evidence of a crime in plain view.

The Majority's assertion that Officer's Ibbotson's intrusion into the physical space of Saunders' vehicle in this case was "decidedly minimal" is irrelevant for purposes of the third prong of the plain view doctrine.²¹ The Majority focuses entirely on Saunders' privacy interests regarding the search of his vehicle, an error of analysis that undermines the core principles of the plain view doctrine itself. See Majority Op. at 23-24. Horton is directly relevant here and contradicts the Majority's analysis in this regard. While the fact that the firearm was in plain view renders minimal Saunders' privacy interest in the location where it was found, that is not what is at issue when a seizure occurs pursuant to the plain view doctrine. Horton teaches that the third prong of the plain view doctrine - the only prong at issue in this case - implicates Saunders' possessory interest with regard to the seizure that occurred. Horton, 496 U.S. at 133-34. A seizure is a seizure and a violation of Saunders' possessory interest cannot be minimized simply because his privacy interest was negligible; these are not interchangeable concepts. The Majority and the Chief Justice's concurrence conflate the interests at stake here by declaring Officer Ibbotson's warrantless seizure to be trivial based on a privacy-based rationale.

21 The factual representation that Officer Ibbotson only reached his hand slightly inside the vehicle is belied by the record in this case. After seizing the weapon and placing it in the police car, Officer Ibbotson returned to Saunders' car and rummaged through it for several minutes. See Ibbotson's Body Cam Video, at minutes 5:30-6:30; 7:30-8:30. However, because Saunders did not challenge the seizure of anything but the firearm, I will focus on Officer Ibbotson's actions before that seizure occurred.

The Majority minimizes Saunders' possessory interest in the seized firearm by relying on inapposite federal caselaw.²² More to the point, the Majority's reliance on federal caselaw is misguided for reasons based on our own jurisprudence from our Charter. Pursuant to Article 1, Section 8 of the Pennsylvania Constitution, this Court has long accorded automatic standing "with no preliminary showing of a proprietary or possessory interest by the defendant ... where possession at the time of the contested search and seizure is an essential element of the prosecution's case." Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998). When we adopted our automatic standing rule in Commonwealth v. Sell, 470 A.2d 457, 468 (Pa. 1983), we agreed with Justice Marshall's dissent in United States v. Salvucci, 448 U.S. 83 (1980) (rejecting an automatic standing rule in federal courts), where he reasoned that a possessory charge "itself alleges a[ possessory] interest sufficient to support a Fourth Amendment claim" and that to hold otherwise allows the prosecution to take diametrically opposed positions during the prosecution of the same criminal offense. Salvucci, 448 U.S. at 97 (Marshall, J., dissenting). Although this is not a case about standing, the same rationale applies. The Majority would allow the Commonwealth to place Saunders in prison for a decade based on his possessory interest in the seized firearm while simultaneously holding that the very same possessory interest is not sufficient to require the Commonwealth to obtain a warrant. This inconsistency is both legally and morally untenable.

22 The Majority plucks a quote out of context from United States v. Place, 462 U.S. 696 (1983), for the proposition that the "intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent." Majority Op. at 24 n.11 (quoting Place, 462 U.S. at 705). However, in that case that did not involve the plain view doctrine, police seized the defendant's luggage based only on reasonable suspicion, in order to have it later examined by drug-sniffing dogs. Place, 462 U.S. at 699. The Place Court ultimately held that the seizure was unconstitutional. Id. at 710. In discussing the scope of the intrusion on the defendant's possessory interest in the luggage, the Place Court observed than an intrusion upon possessory interests can vary in "nature and extent." Id. at 705. But the Supreme Court then immediately compared a hypothetical scenario where a seizure is made "after the owner has relinquished control of the property to a third party" to the facts in Place, where a seizure occurred "from the immediate custody and control of the owner." Id. There is no analogy to be drawn to the facts of this case from the hypothetical scenario discussed in Place. Place provides no authority for the Majority to disregard Saunders' possessory interest. The other cases cited by the Majority are not controlling, and do not provide persuasive authority. In United States v. Williams, 592 F.3d 511, 523 (4th Cir. 2010), the Fourth Circuit stated that the seizure of child pornography on a computer did not "interfere with Williams' possessory interests" because "once their nature as contraband became apparent, Williams' possessory interests were forfeited." Williams did not provide any citation to support the legal conclusion that one cannot maintain a possessory interest in contraband, and it only made that statement in an alternative analysis. Williams, 592 F.3d at 521 (stating that even if the court "were to conclude that the warrant did not authorize a search for child pornography," it would reach the same conclusion under the plain view doctrine). Thus, the quote cited by the Majority is plainly dicta that was not essential to the holding in Williams. The Majority also barks up the wrong tree by citing United States v. Reed, 141 F.3d 644 (6th Cir. 1998). Suspecting a burglar was present, Reed consented to have police release a dog to search inside his apartment. While the dog did not discover a burglar, it did alert to Reed's narcotics. When the canine officer's handler subsequently went inside with Reed's consent, the officer discovered narcotics in plain view that were revealed by the dog's search. Reed argued on appeal that the dog had exceeded the scope of consent to search the apartment, and that the evidence was not in plain view if the dog had dislodged it from a hidden location. The court rejected those arguments, concluding that no Fourth Amendment search had occurred because the officer and the dog were both "legally present at their vantage when their respective senses are aroused by obviously incriminating evidence[.]" Reed, 141 F.3d at 649. Thus, unlike here, the plain view seizure in Reed occurred while the officer already had lawful access to the contraband. The Reed Court then remarked, without citation and after the lawful access question had been decided, that "there is no possessory interest in contraband." Id. at 650.

Exigency Analysis ²³

23 The Commonwealth did not argue for the Majority's interpretation of McCree on the limited automobile exception. See Commonwealth's Brief at 14 (stating the Commonwealth agrees "that McCree should not be viewed as embodying a per se rule that the police are never obliged to seek a warrant before removing contraband in plain view from a vehicle."). The Commonwealth interpreted McCree to mean that it still had the burden of showing some exigency to bypass the warrant requirement beyond the fact that probable cause arose suddenly. Id. ("Under some circumstances, a warrant may well be required, even where police observe what is obviously incriminating evidence without advance warning."). Saunders argued that no exigency justified the warrantless seizure that occurred. Accordingly, I will address whether an exigency existed that would satisfy the lawful access prong of the plain view doctrine, having determined that the limited automobile exception cannot do so.

The facts of this case are quite simple and undisputed by the parties, in large part because the at-issue police-citizen interaction was recorded on two body cameras worn by Officer Ibbotson and his partner. Officer Ibbotson lawfully stopped Saunders for a minor traffic infraction in Philadelphia after dark in November of 2020. While Saunders searched for documents, Officer Ibbotson observed him secreting a firearm under his seat after Saunders had denied having a weapon. Officer Ibbotson signaled his concern to his partner and asked Saunders to exit the vehicle. Saunders complied, was swiftly detained, and placed in the back of the officers' police car in handcuffs. Approximately 90 seconds later, Officer Ibbotson returned to Saunders' vehicle, reached inside through the still-open drivers' side door, and seized the firearm.²⁴ He removed the loaded magazine from the firearm and placed both it and the firearm on the drivers' side seat of his patrol car, in which his partner and Saunders were both located. Officer Ibbotson then returned to Saunders vehicle and began rummaging through the interior of the vehicle on two additional occasions before the footage from the bodycams ends.

24 Ibbotson's Body Cam Video, at minute 4:15.

Due to the Majority's resolution of this case on the limited automobile exception,²⁵it did not address the Commonwealth's assertion that the presence of a firearm created an exigency. I strongly believe that police officers should not be expected to take unnecessary risks when firearms are involved in a citizen interaction, but we are also compelled to not conjure up scenarios not supported by the record when deciding cases. See Hernandez, 935 A.2d at 1282 ("The fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient."). Here, there is no more than a mere assertion of danger by the Commonwealth, based on a vague claim of "officer safety" by Officer Ibbotson, which he asserted was the reason why he handcuffed Saunders and locked him in the police car. N.T., 5/20/2024, at 23. He did not assert that he subsequently seized the firearm for officer safety. This is plainly not enough under Hernandez to invoke a safety exception, which rejected the sufficiency of "a mere assertion of danger[.]" Hernandez, 935 A.2d at 1282. Rather, police must "be able to articulate the danger posed under the specific circumstances of the case." Id. Here, Officer Ibbotson did not even assert that he seized the firearm for officer safety concerns; the risk that concerned him had abated once Saunders was safely secured in the police car.²⁶

25 The Majority surprisingly claims it is "not adopting or applying" the limited automobile exception, immediately after resurrecting a version of it from the ashes of McCree, which it does to fulfill the requirements of the lawful access prong of the plain view doctrine. Majority Op. at 21 n.9. But the Majority further insists that it is only applying "plain view exception." Id. If this sounds confusing, it is, because the Majority is sowing confusion. As discussed above, there is no plain view "exception," and continuing to construe the plain view doctrine as an stand-alone exception to the warrant requirement contravenes controlling case law. See Texas v. Brown, 460 U.S. at 738-39; Horton, 496 U.S. at 133- 34. The McCree plurality understood this when it applied the plain view doctrine, and Justice Castille joined the OAJC in that respect. See McCree, 924 A.2d at 627-28 (OAJC) (citing both Texas v. Brown and Horton to define the plain view doctrine); id. at 631 (holding "the limited automobile exception under Article I, § 8 may ... serve as the basis of the lawful right to access an object seen in plain view inside a vehicle."); see also id. at 634 (Castille, J, concurring) (joining the OAJC except for its discussion of the contours of the limited automobile exception). There is no "plain view exception" and no party argued otherwise. The plain view doctrine has long been understood to require the application of an independent exception to the warrant requirement to satisfy the lawful access prong. It the Majority intends to rewrite well-settled law sua sponte, it should at least provide a rationale for doing so. The Majority further asserts that it has not crafted a per se exigency exception that runs afoul of Alexander, see Majority Op. at 21 n.9, but this is belied by common sense. It is the essential nature of plain view doctrine cases that probable cause arises suddenly when contraband is observed in plain view.

26 It is highly probable that Officer Ibbotson seized the firearm believing he was permitted to do so pursuant to the then-applicable federal automobile exception.

Not only did Officer Ibbotson not claim that he seized the firearm for officer safety concerns, but his subsequent actions refute any inference that he acted pursuant to such a concern. As shown on his body cam video, immediately after he seized the firearm, Officer Ibbotson removed the loaded magazine and placed both parts on the front seat of the police car then housing Saunders, far closer to Saunders than the firearm had been seconds beforehand. See Ibbotson's Body Cam Video, at 5:00. The implication is clear. Officer Ibbotson, quite rationally as an objective matter, had no concern whatsoever that Saunders would escape the back seat of the cruiser while handcuffed. Nothing in the record supports that he seized the firearm due to a continued threat to officer safety because Saunders was secured in the police vehicle, handcuffed. The Commonwealth's ex post facto construct of a dangerous scenario requiring a warrantless seizure of the firearm is belied by the videographic record of this encounter and detention.²⁷ After seizing the gun, the officer placed it in the front seat of the same vehicle in which Saunders was detained, dispelling any notion that officer safety was a concern.

27 Indeed, the record supports the fact that the officers could have locked the vehicle while they awaited a warrant. See N.T., 5/20/2021, at 23 (Officer Ibbotson's stating that he took Saunders' keys before the seizure). Additionally, none of the fears regarding other individuals' ability to access the firearm were articulated by Officer Ibbotson. Hernandez clearly rejected the use of bald claims of danger to escape the warrant requirement.

Conclusion

I would hold that there was no precedential articulation of the limited automobile exception in McCree, and that such an exception is not viable after Alexander in any event. Thus, I would explicitly reject Brown, as well as other Superior Court cases such as McMahon and Davis that have applied Brown following Alexander. Additionally, applying Alexander's totality-of-the-circumstances exigency analysis, I would conclude that no exigency existed under the specific facts of this case to support the warrantless seizure of the firearm from Saunders' vehicle under the lawful access prong of the plain view doctrine. Accordingly, I respectfully dissent.

Justice Wecht joins this dissenting opinion.