Loading...
HomeMy WebLinkAboutCP-21-CR-0002875-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CP-21-CR-2875-2009 : CHARGES: (1) UNLAWFUL DELIVERY : MANUFACTURE, POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II V. : CONTROLLED SUBSTANCE : - COCAINE : (2) SELL CONTROLLED SUBSTANCE : WITHOUT LABEL : (3) UNLAWFUL POSSESSION SMALL : AMOUNT OF MARIJUANA : ALBERT M. THOMAS : OTN: L511147-0 : AFFIANT: TRP. ROBERT CLAAR ORDER OF COURT th AND NOW , this 13 day of October, 2010, having considered the testimony and IT IS HEREBY ORDERED AND DIRECTED evidence presented by both parties, that the GRANTED. Defendant’s Motion to Suppress Evidence is By the Court, __________________________ M. L. Ebert, Jr., J. Jamie M. Keating, Esquire First Assistant District Attorney Michael Halkias, Esquire Assistant Public Defender COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CP-21-CR-2875-2009 : CHARGES: (1) UNLAWFUL DELIVERY : MANUFACTURE, POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II V. : CONTROLLED SUBSTANCE : - COCAINE : (2) SELL CONTROLLED SUBSTANCE : WITHOUT LABEL : (3) UNLAWFUL POSSESSION SMALL : AMOUNT OF MARIJUANA : ALBERT M. THOMAS : OTN: L511147-0 : AFFIANT: TRP. ROBERT CLAAR IN RE: SUPPRESSION OF EVIDENCE OPINION and ORDER OF COURT Ebert, J., October 13, 2010 – Albert Matthew Thomas (hereinafter Defendant) is charged with: (1) Unlawful Delivery, 1 Manufacture, Possession with Intent to Deliver a Schedule II Controlled Substance - Cocaine; 2 (2) Sell Controlled Substance Without Label; and (3) Unlawful Possession Small Amount of 3 Marijuana. In this suppression case, Defendant contends: (1) that the consent to search given by Defendant was invalid; and (2) that the evidence obtained from the search of Defendant’s vehicle 4 and the statement made by Defendant was an invalid product of that search. For the reasons set forth within this opinion, this Court finds that the consent to search given by Defendant was invalid and, therefore, the evidence obtained from the impermissible search of Defendant’s vehicle and the statement made by Defendant will be suppressed. 1 35 P.S. Sec. 780-113(a)(30). 2 35 Pa.C.S. Sec. 780-113(a)(18). 3 35 P.S. Sec. 780-113(a)(31)(i). 4 Def. Mot. to Suppress Evidence and Statement. 1 STATEMENT OF FACTS On September 15, 2009, at approximately 5:30 pm Trooper Robert W. Claar (herinafter Trooper Claar) of the Pennsylvania State Police was running radar on the turnpike by milepost 5 No. 222 west in South Middleton Township, Cumberland County. The speed limit at that 6 location was 55 mph. Trooper Claar, using a Falcon radar unit, observed a green Buick Riviera 7 driven by Defendant traveling at a 61 mph. Trooper Claar pulled out behind the vehicle, activated his emergency lights and siren, and proceeded to pull Defendant over at milepost 8 224.4. Trooper Claar then approached the passenger’s side of the vehicle and asked Defendant 9 for his driver’s license, registration, and proof of insurance. Trooper Claar observed that 10 Defendant’s hands were shaking when he provided the information requested. Defendant 11 handed Trooper Claar a pink slip indicating that he had purchased the vehicle the day before. 12 Defendant told Trooper Claar that he was driving to Pittsburgh to visit his mother, however, 13 Trooper Claar observed no luggage present in the vehicle. While speaking to Defendant, 14 Trooper Claar smelled the odor of burnt marijuana coming from inside the vehicle. Trooper Claar returned to his vehicle where he ran the Defendant’s criminal history 1516 information. Trooper Claar learned that Defendant had been arrested numerous times. While running the information, Trooper Claar observed that Defendant was constantly on his cell 5 N.T. at 3-4. 6 N.T. at 4. 7 N.T. at 4-5. 8 N.T. at 5. 9 N.T. at 5. 10 N.T. at 7. 11 N.T. at 8. 12 N.T. at 8. 13 N.T. at 8. 14 N.T. at 6. 15 N.T. at 7-8. 16 N.T. at 9. 2 17 phone. After determining that the Defendant had no active arrest warrants and that his operating privileges were not suspended, Trooper Claar decided to issue the Defendant a written warning. Trooper Claar has two years experience as a drug detection canine handler and has 18 training and experience in drug interdiction. Based on this experience and training, Trooper 19 Claar testified that Defendant’s behavior was typical of a person that was transporting drugs. During his interaction with Defendant, Trooper Claar’s canine was secured in his patrol vehicle 20 and exhibited no threatening behavior toward the Defendant. Corporal Manny DeLeon (hereinafter Corporal DeLeon) arrived on scene while Trooper 21 Claar was running Defendant’s information and completing the written warning. Corporal 22 DeLeon made small talk with Defendant and also smelled the odor of marijuana. Corporal DeLeon asked Defendant to exit the vehicle so that Trooper Claar could explain the written 23 warning to him. Corporal DeLeon may have placed a hand on Defendant as he exited the 24 vehicle, but it was only done as a safety measure to warn him of traffic. 25 Defendant exited his vehicle and moved to the rear of his vehicle. There, Trooper Claar 26 explained the written warning to Defendant and returned Defendant’s paperwork. During the 27 interaction Defendant kept his head down and looked at the ground in front of Trooper Claar. 17 N.T. at 9. 18 N.T. at 10. 19 N.T. at 9 20 N.T. at 10. 21 N.T. at 11. 22 N.T. at 43-44. 23 N.T. at 44. 24 N.T. at 44-45. 25 N.T. at 12. 26 N.T. at 12-13. 27 N.T. at 13. 3 28 Trooper Claar then advised Defendant that he was free to leave. Defendant turned his back to 29 Trooper Claar and Corporal DeLeon and began walking back to his vehicle. Trooper Claar then asked Defendant if he could answer a few questions and Defendant turned and walked back 30 to Trooper Claar. 31 Trooper Claar asked Defendant a number of questions. Trooper Claar asked him where 32 he was going to and coming from. Defendant related that he was driving from Steelton to visit 33 his mother in Pittsburgh. Trooper Claar told him that he had detected an odor of marijuana and 34 asked him if there were any drugs in the vehicle. Defendant related that there was no 35 marijuana in the vehicle. During this questioning Defendant’s cell phone was continually 36 ringing. Defendant answered it the first time and then Trooper Claar requested that he not 37 answer the cell phone until they were done with the stop for “officer safety issues.” During the 38 questioning Trooper Claar’s voice remained non-threatening. However, Trooper Claar 39 observed that Defendant was becoming increasingly agitated. 40 Trooper Claar then asked Defendant for permission to search his vehicle. At this point the record becomes somewhat murky. One thing is for certain, the patrol vehicle used by Trooper Claar was equipped with audio and visual taping equipment. In numerous other cases of this type, this Court has found the recordings from this type of equipment to be most probative. The Court can clearly observe exactly what the police did, the demeanor in which they 28 N.T. at 13. 29 N.T. at 13. 30 N.T. at 13. 31 N.T. at 14. 32 N.T. at 14. 33 N.T. at 14. 34 N.T. at 14. 35 N.T. at 14-15. 36 N.T. at 15. 37 N.T. at 15-16. 38 N.T. at 16. 39 N.T. at 16. 40 N.T. at 16. 4 approached the Defendant, the Defendant’s actions and responses. Here, for some unknown 41 reason, Trooper Claar testified that the equipment “malfunctioned.” Accordingly no audio or video recordings of this traffic stop were made. In any regard, at the suppression hearing on direct examination Trooper Claar indicated that initially when he asked the Defendant for permission to search his vehicle the Defendant 42 “didn’t respond one way or the other but just stared at the ground in front of him.” Trooper Claar then asked the Defendant again for permission to search and testified that the Defendant 43 answered “Yes.” However, on cross-examination by defense counsel, Trooper Claar was shown a copy of his sworn testimony at the preliminary hearing before Magisterial District Judge Correal on October 26, 2009. There the Trooper was asked “did he ever say no you couldn’t 44 search the vehicle?” The Trooper responded “Initially yes.” Trooper Claar was then asked at the preliminary hearing “so he told you no, you couldn’t search the car, and you persisted in asking him?” Trooper Claar responded “No. At that point I explained to him that I had a drug detection dog and that I believed that there was something in the vehicle and I was going to run 45 the dog on the exterior of the vehicle.” At the suppression hearing, on cross-examination, Trooper Claar was asked “was there any ambiguity in his answer? Did he say yes or did he seem wishy washy?” Trooper Claar responded “wishy washy.” In truth, the Trooper’s testimony at the preliminary hearing and the suppression hearing is clearly contradictory. While the Trooper stated that his preliminary hearing testimony was “obviously a mistake, a misstatement on my part” this Court finds that a full reading of the Trooper’s testimony clearly establishes that the Defendant’s “consent” was equivocal at best. 41 N.T. at 28. 42 N.T. at 16. 43 N.T. at 17. 44 Defendant’s Ex. No. 1, page 3. 45 Defendant’s Ex. No. 1, page 3. 5 Trooper Claar indicates that he showed the Defendant Commonwealth’s Exhibit Number 2, which is the Pennsylvania State Police Waiver of Rights and Consent to Search form, and went over the entire form with him. The Defendant did not fill in any of the data requested on 46 the form and stated that he “did not want to sign any form.” Again, this Court finds that this response under these circumstances reinforces Defendant’s non-consent. Trooper Claar then asked Defendant to move to the rear of his patrol vehicle so that he 47 could deploy his canine. Corporal DeLeon walked in front of Defendant, escorting him to the 48 rear of Trooper Claar’s patrol vehicle. Defendant began walking towards the rear of the patrol 49 vehicle but he stopped at the passenger side rear door. Trooper Claar explained to Defendant that Defendant needed to move to the rear of the vehicle because he would be getting the canine 50 out of that door. Defendant turned to go back to the rear of the patrol vehicle, but then spun 51 around and began walking back to his vehicle where he stopped near the trunk. Trooper Claar 52 directed Defendant to the back of his patrol vehicle. Once Defendant complied with Trooper Claar’s directive, Trooper Claar deployed his canine and performed a fast pass with the canine in which the trooper walked the canine around 5354 the exterior of the vehicle. The canine alerted at the trunk of the vehicle. Trooper Claar then 55 began a detailed search of the vehicle by placing the canine inside of Defendant’s vehicle. The 56 canine alerted and indicated at the center console of Defendant’s vehicle. Then Trooper Claar 46 N.T. at 18-19, Comm. Ex. 2. 47 N.T. at 18-19. 48 N.T. at 49. 49 N.T. at 19. 50 N.T. at 19. 51 N.T. at 19. 52 N.T. at 19. 53 N.T. at 19-20. 54 N.T. at 20. 55 N.T. at 20. 56 N.T. at 20. 6 placed the canine in the trunk of the vehicle and the canine alerted on a black duffel bag that was 57 inside the trunk of the vehicle. After completing the canine search but before beginning the hand search, Defendant 58 admitted to Trooper Claar that there was a marijuana blunt in the center console. Trooper 59 Claar did find a marijuana blunt in the center console. Then Trooper Claar searched the black duffel and found three clear plastic bags containing chalky material that field tested positive for 60 cocaine. 61 At approximately 6:05 pm Defendant was placed under arrest. Two and a half hours later, after giving Defendant his Miranda warnings and explaining his Constitutional rights, 62 Trooper Claar interviewed Defendant and took his statement. DISCUSSION I. Trooper Claar’s initial detention of Defendant “[W]hen an officer has reasonable suspicion a violation of the Vehicle Code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” 75 Pa.C.S. § 6308(b); Com. v. Chase, 960 A.2d 108, 112 (Pa. 2008). Under the Motor Vehicle Code, where the lawfully posted speed limit is 55 mph, “no person shall drive a vehicle at a speed in excess of … [that] maximum limit[].” 75 Pa.C.S.A. § 3362 (a)(2). Trooper Claar’s radar gun read that Defendant was traveling 61 mph in a 55 mph zone; therefore, Trooper Claar had reasonable suspicion that Defendant was speeding in violation of the Motor Vehicle Code. 57 N.T. at 20-21. 58 N.T. at 21. 59 N.T. at 21. 60 N.T. at 21. 61 N.T. at 21. 62 N.T. at 22. 7 Accordingly, “[p]olice can initiate an investigatory stop when they have reasonable suspicion of a MVC violation. Neither the federal nor the state constitution prevents ‘police from stopping and questioning motorists when [the police] witness or suspect a violation of traffic laws, even if it is a minor offense.’” Com. v. Muhammed, 992 A.2d 897, 900 (Pa. Super. 2010) (citing Com. v. Chase, 960 A.2d at 120, 113). Therefore, having reasonable suspicion of a Motor Vehicle Code violation, Trooper Claar lawfully stopped Defendant. II. The second interaction between Trooper Claar and Defendant Trooper Claar’s initial detention of Defendant for the speeding violation concluded when he issued Defendant a written warning and advised that he was free to leave. At this point in time a second interaction between Trooper Claar and Defendant began. In Com. v. Freeman, 757 A.2d 903, 906-07 (Pa. 2000), the Pennsylvania Supreme Court “defined multiple relevant circumstances on the basis of which we may recognize the end of a traffic stop and the commencement of another interaction. The Court enumerated the following circumstances: the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example-the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors [sic] stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search.” Com. v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002)(citations omitted). It is clear that the traffic stop for the speeding violation had concluded. Trooper Claar expressed a clear endpoint to this detention when he explained the written warning to Defendant, returned Defendant’s paperwork, and then advised Defendant that he was free to leave. Defendant turned and began 8 walking back to his vehicle. Therefore, a new interaction commenced when Trooper Claar asked Defendant if he could ask him a few questions. In Com. v. Kemp, the Court held that facts gathered during a valid traffic stop can be utilized to justify an investigatory detention occurring after a police officer has indicated that a Defendant is free to leave. Com. v. Kemp, 961 A.2d 1247, 1260 (Pa. Super. 2008). The requirements for an investigative detention as follows: Prior to subjecting a citizen to an investigatory detention, the police must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. The question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity. Thus, to establish grounds for reasonable suspicion, the officer whose impressions formed the basis for the stop must articulate specific facts which, in conjunction with reasonable inferences derived from those facts, led him reasonably to conclude, in light of his experience, that criminal activity, was afoot. Com. v. Daniels, 999 A.2d 590, 597 (Pa. Super. 2010). Trooper Claar articulated the following specific facts that he gathered during the valid traffic stop: (1) the odor of burnt marijuana coming from inside the vehicle; (2) Defendant’s arrest record; (3) Defendant’s constant cell phone use; (4) documentation indicating that Defendant had purchased his vehicle the day before; (5) Defendant was traveling on the turnpike from Steelton to a source city, Pittsburgh; and, (6) Defendant’s lack of visible luggage for the trip. Trooper Claar has two years experience as a drug detection canine handler with training and experience in drug interdiction. Trooper Claar testified that Defendant’s behavior were indicia of drug trafficking. Based on these specific articulated facts observed during a valid traffic stop and in conjunction with the reasonable inferences derived from those facts, Trooper Claar was led to reasonably conclude, in light of his experience, that criminal activity was afoot and that Defendant was involved in that 9 activity. Having established the grounds for reasonable suspicion, Trooper Claar was justified in subjecting Defendant to a second investigatory detention. III. Defendant’s consent is invalid The underlying encounter between Trooper Claar and Defendant was lawful and so the only question remaining before this Court is whether Defendant’s consent to a vehicle search was voluntarily given. The Pennsylvania Supreme Court has stated that: [t]he Fourth Amendment protects against unreasonable searches and seizures, including those entailing only a brief detention. A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies. One such exception is consent, voluntarily given. The central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent; and, ultimately, the voluntariness of consent. Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Com. v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000)(internal citations omitted). Despite the underlying encounter being lawful, it is the belief of this Court that Defendant’s consent was not voluntarily given and therefore the search conducted without a warrant was unreasonable and constitutionally impermissible. To establish a voluntary consensual search, the Commonwealth must prove “that a consent is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances.” Id. at 901. “[T]he courts will indulge every reasonable presumption against such waiver. Com. v. Baskerville, 419 A.2d 575, 577 (Pa. Super. 1980). In this case, the choice was not free nor was it unconstrained but rather we see an individual whose will was overborne-under the totality of the circumstances. 10 In order for the consent to search to be valid it must be unequivocal, specific, and voluntary. Com. v. Powell, 994 A.2d 1096, 1102 (Pa. Super. 2010)(citing Com. v. Stapinski, 431 A.2d 260 (1981)). The test for voluntariness “centrally entail[s] an examination of the objective circumstances surrounding the police/citizen encounter to determine whether there was a show of authority that would impact upon a reasonable citizen-subject's perspective.” Id. The following factors allow this Court to examine the objective circumstances surrounding the second investigatory detention and are pertinent to the determination of whether consent to search was voluntarily given: 1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including the degree of coerciveness; 8) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search. Id. at 1101(citing Com. v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008)). Using the above factors to weigh all the evidence, the Court in Com. v. Powell, decided that despite what the Trooper’s perception may have been, the Defendant did not give an unequivocal, specific consent to search his vehicle and therefore, all evidence seized as a result of that search was suppressed. Id. at 1103. In that case, the Trooper asked the defendant for permission to search Defendant’s vehicle. Id at 1102. After reviewing the video tape, the Defendant’s response was unclear to the Court. Id. However, the Trooper testified that Defendant said “nah” and motioned to his car. Id. The Trooper wrote in his police report that the Defendant said “yeah or something to that effect.” Id. For a second time, the Trooper then asked, “Is it okay to search it.” Id. The Court heard no response from the Defendant in the audio recording and the officer did not testify as to any response. Id. Thereafter, the Defendant again made a small gesture with his right hand 11 toward the vehicle and walked to the driver's door. Id. at 1103. Another Trooper stopped him when he reached the door. Id. The Court found that the Defendant’s “nah” response to the Trooper’s request to search his car was not an unequivocal, specific consent. Id. Furthermore, the Court found that even if the Defendant had said “yeah or something to that effect,” then they still wouldn’t have known exactly what he said and it would not have been an unequivocal, specific consent. Id. No verbal response could be heard from the Defendant to the second request to search by the Trooper. Id. Finally, the Court found that the Defendant's conduct in making another gesture with his hand toward the vehicle and walking to the driver's door, only to be stopped by another Trooper, was inconsistent with his having just unequivocally consented to the search of the vehicle. Id. In the case before this Court, rather than a “nah” response from Defendant which the Court in Com. v. Powell found not to be an unequivocal, specific consent, Trooper Claar testified under oath at the preliminary hearing as follows: Defense Counsel: Did he ever say no, you couldn’t search the vehicle? Trooper Claar: Initially yes. Defense Counsel: Did you have a camera? Trooper Claar: Yes. Defense Counsel: Was it on? Trooper Claar: It was on but it malfunctioned… Defense Counsel: So he told you no, you couldn’t search the car and you persisted in asking him? Trooper Claar: No. At that point I explained to him that I had a drug detection dog and that I believed there was something in the vehicle and I was going to run the dog on the exterior 63 of the vehicle. 63 Defendant’s Ex. No. 1, page 3. 12 This Court finds that this last statement was made to influence the Defendant’s decision. After telling Defendant this, Trooper Claar asked Defendant a second time for permission to search his vehicle. It was clear from Defendant’s first answer that he did not wish to give consent, but because his first answer was met with Trooper Claar’s challenge regarding the use of the canine, Defendant did not feel that he had the ability to decline the second time. As in Com. v. Powell, Trooper Claar received a response from Defendant that was not an unequivocal, specific consent but instead even Trooper Claar characterized the response as “wishy-washy.” Like the Trooper in Com. v. Powell, Trooper Claar chose to perceive this “wishy-washy” response as a “yes” consent. Defendant then refused to fill out or sign the pre-printed consent form to search the vehicle which is inconsistent with his having just unequivocally consented to the search of the vehicle. Like the Defendant in Com. v. Powell, Defendant’s movement following this inquiry by Trooper Claar was inconsistent with the grant of a consensual search. Directed by Trooper Claar and escorted by Corporal DeLeon, Defendant began moving towards the rear of Trooper Claar’s patrol vehicle when he stopped at the passenger side rear door. Despite being instructed a second time to move to the rear of the patrol vehicle, Defendant spun around and began walking back to his vehicle where he stopped near the trunk. Trooper Claar then directed Defendant to the back of his patrol vehicle and the Defendant complied. In the instant case, the totality of the circumstances indicates that Defendant’s consent was obtained as a product of some coercion and duress, not “the product of an essentially free and unconstrained choice” as required by Pennsylvania law for valid consent. Com. v. Strickler, 757 A.2d at 901. The Commonwealth has the burden of proving the Defendant’s consent. Here, the malfunctioning audio and video recording equipment along with the inconsistent testimony 13 given by the Trooper at the preliminary hearing, vis-à-vis the suppression hearing, dictates that this Court find that the Commonwealth has not met its burden in proving the Defendant’s unequivocal consent. Therefore, this Court does not find Defendant’s consent to be valid and must suppress the evidence from the resulting search. IV. Without consent a fast pass of the canine was permissible Trooper Claar in reality did not need the Defendant’s consent to deploy his canine. He could have had the dog do a fast pass of the exterior of Defendant’s vehicle. The US Supreme Court has ruled that a drug dog sniff is not a search within the meaning of the Fourth Amendment. U.S. v. Place, 462 U.S. 696, 706-07 (1983). However, in order to perform the sniff, there must be a seizure of the vehicle and, therefore, the person, requiring either consent to be detained or reasonable suspicion. U.S. v. McFarley, 991 F.2d 1188, 1191 (4th Cir.1993). In this case Trooper Claar clearly had the requisite reasonable suspicion to perform the canine sniff of the exterior of the vehicle. “[T]he law is clear that once a canine sniff of a vehicle's exterior triggers a positive indication, reasonable suspicion of contraband in the vehicle ripens into probable cause.” Com. v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007). The canine sniff of the exterior of Defendant’s vehicle produced a positive indication of contraband in the trunk. Pursuant to the protections extended by the Fourth Amendment to the United States Constitution, “before a police officer may conduct a search, he must generally obtain a warrant that is supported by probable cause and authorizes the search.” Com. v. Acosta, 815 A.2d 1078, 1082 -1083 (Pa. Super. 2003)(citing Com. v. Reid, 811 A.2d 530, 544 (Pa. 2002)). Given the positive indication by a canine sniff, along with all the other indicators previously recited, Trooper Claar had the probable cause 14 necessary to support the issuance of a search warrant. Trooper Claar chose not to obtain a search warrant but rather rely on what this Court has determined to be the Defendant’s invalid consent. V. A warrant was necessary to conduct the search of Defendant’s vehicle Trooper Claar should have obtained a search warrant to conduct the search of Defendant’s vehicle. Under the Pennsylvania Constitution, there is no per se automobile exception to the warrant requirement; in order to search automobile without warrant, police must still show the existence of both probable cause and exigent circumstances. Com. v. Haskins, 677 A.2d 328 (Pa. Super. 1996). The “general rule is that, under Article 1, Section 8 [of the Pennsylvania Constitution], ‘a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause.’” Com. v. Rosenfelt, 662 A.2d 1131, 1143 (Pa. Super.1995)(quoting Com. v. Kohl, 615 A.2d 308, 315 (1992). Trooper Claar did not establish exigent circumstances that would excuse him from obtaining a warrant to search the interior of the automobile nor is the search permissible as a search incident to arrest as Defendant was not under arrest at the time. As the PA Supreme Court has stated: We are mindful that government has a compelling interest in eliminating the flow of illegal drugs into our society, and we do not seek to frustrate the effort to rid society of this scourge. But all things are not permissible even in the pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government's interest is compelling. Com. v. Martin, 626 A.2d 556, 561 (1993). This Court fully recognizes the value of “interstate highway drug interdiction.” But it also recognizes that there are no shortcuts. Video and audio recording systems must be operational, and police cannot loose sight of the fact that while “consent searches” are easier and less time consuming, sometimes the law dictates that a search warrant must be obtained. Here, on total, there was probable cause to get a search warrant after 15 the dog alerted to the Defendant’s car. There were adequate police personnel available to detain the vehicle until a search warrant could be obtained. The police chose not to get a search warrant. CONCLUSION In light of the testimony and evidence presented, this Court finds that Defendant’s consent to search was invalid. Therefore, the evidence obtained from the search of Defendant’s vehicle and the statement made by Defendant was the product of legally invalid search and will be suppressed. Accordingly the following order is entered: ORDER OF COURT th AND NOW , this 13 day of October, 2010, having considered the testimony and IT IS HEREBY ORDERED AND DIRECTED evidence presented by both parties, that the GRANTED. Defendant’s Motion to Suppress Evidence is By the Court, __________________________ M. L. Ebert, Jr., J. Jamie M. Keating, Esquire First Assistant District Attorney Michael Halkias, Esquire Assistant Public Defender 16