In a decision that found the justices more deeply divided than a 4-2 split might suggest on its face, the Pennsylvania Supreme Court has adopted the federal automobile exception to the search warrant requirement.
The exception allows police officers with probable cause to search a motor vehicle without a warrant even where there are no exigent circumstances.
Finding that Article I, Section 8 of the Pennsylvania Constitution “affords no greater protection” than the Fourth Amendment to the U.S. Constitution, the six-justice court—Justice Correale F. Stevens did not participate—ruled in Commonwealth v. Gary to adopt the federal exception, which requires no additional exigency beyond the inherent mobility of a motor vehicle.
The ruling breaks with prior state Supreme Court case law holding that the state constitution permits warrantless searches of vehicles only where exigent circumstances exist.
Justice Seamus P. McCaffery wrote in a 62-page opinion announcing the judgment of the court that there is “no compelling reason” to interpret the state constitution as affording greater protection than the U.S. Constitution with regard to warrantless motor-vehicle searches.
McCaffery said adopting the federal standard will clear up decades of “fractured jurisprudence” with regard to warrantless vehicle searches and will make it easier for police officers to make tough calls in high-pressure situations.
“The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required,” McCaffery said. “The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field.”
McCaffery was joined by Chief Justice Ronald D. Castille and Justice J. Michael Eakin.
Justice Thomas G. Saylor joined in the result but wrote a concurring opinion to note that he had “some reservations” about doing so.
Saylor said he found “inconsistency in the courts’ rejection of bright-line rules restraining law enforcement as a means of protecting individual rights, while simultaneously embracing such rules when they facilitate law enforcement.”
Saylor cited as an example the state Supreme Court’s 2004 ruling in Commonwealth v. Perez, in which the justices departed from the bright-line rule that pre-arraignment confessions obtained more than six hours after an arrest must be suppressed.
Justice Debra Todd, meanwhile, penned a strongly worded, 43-page dissenting opinion, joined by Justice Max Baer.
Todd said that, by not extending Article I, Section 8′s protection beyond that of the U.S. Constitution, the court “eviscerated the strong privacy protections that amendment affords the people of Pennsylvania in their automobiles.”
“By so doing, our court heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright,” Todd said, noting that the language of Article I, Section 8 has remained basically unchanged since it was established in 1790. “I cannot join our court in this endeavor, as it is so diametrically contrary to the deep historical and legal traditions of our commonwealth.”
In Gary, according to McCaffery, two Philadelphia police officers were on patrol in a marked police car Jan. 15, 2010, when they spotted defendant Sheim Gary driving an SUV with tinted windows they believed were in violation of the state Motor Vehicle Code.
The officers pulled Gary over and, as they approached the vehicle, smelled marijuana coming from the passenger and driver sides of the vehicle, McCaffery said.
When one of the officers asked Gary whether there was anything in the vehicle the officers needed to know about, Gary replied that there was some “‘weed,’” according to McCaffery.
The officers put Gary in their police cruiser and called the canine unit. As a police dog began to walk around the SUV, Gary got out of the police cruiser and tried to run from the scene, McCaffery said.
Gary was apprehended and, after a search of his SUV yielded about two pounds of marijuana, was arrested and charged with possession of a controlled substance and possession with intent to deliver, according to McCaffery.
A Philadelphia Municipal Court judge found that the police officers’ search of Gary’s vehicle was valid because there was probable cause and exigent circumstances and a Philadelphia trial judge agreed, denying Gary’s writ of certiorari.
But the state Superior Court reversed the trial court’s ruling, finding that the circumstances did not constitute exigent circumstances allowing for an exception to the warrant requirement.
McCaffery said the state Supreme Court’s previous rulings that exigent circumstances are necessary to trigger the federal automobile exception appear to have been based on early U.S. Supreme Court precedent.
“However, while the federal automobile exception evolved to require only probable cause to search an automobile, our decisional law did not so evolve, but rather maintained its adherence to the original formulation of the exception,” McCaffery said, explaining that, while some early U.S. Supreme Court cases did suggest that the federal automobile exception is only triggered when an unexpected and unforeseeable development of probable cause arises, its 1982 decision in United States v. Ross heldthat there is no separate exigency requirement.
McCaffery said the Supreme Court has never conducted an independent analysis of the interplay between Article I, Section 8 and the Fourth Amendment, pursuant to its own 1991 ruling in Commonwealth v. Edmunds.
An Edmunds analysis examines four factors—text of the state constitutional provision; the history of the provision, including Pennsylvania case law; other states’ case law; and policy considerations—to determine whether the state constitution affords greater protection than the U.S. Constitution, according to McCaffery.
McCaffery said there is nothing in the text of Article I, Section 8 that suggests it affords greater protection than the Fourth Amendment.
In examining the second Edmunds factor, McCaffery said the state Supreme Court’s 2007 ruling in Commonwealth v. Russo was “highly relevant” to the question raised in Gary.
In Russo, according to McCaffery, the justices adopted the federal Fourth Amendment test—whether the defendant had a subjective expectation of privacy that society would recognize as reasonable and legitimate—for determining the scope of Article I, Section 8 protection.
McCaffery said both the state and U.S. supreme courts have long held, based on the same rationale, that defendants’ Article I, Section 8 and Fourth Amendment protections are diminished with regard to the inside of their vehicle as compared to their residence, office or person.
Addressing the third Edmunds factor, McCaffery said both the Rhode Island Supreme Court and the Wisconsin Supreme Court have adopted the federal automobile exception based on the rationale that, where a state constitution does not mandate otherwise, it’s best to have a single, uniform standard for warrantless vehicle searches applicable in both state and federal court.
McCaffery said he agreed with that reasoning.
As for the fourth prong of the Edmunds test, McCaffery said there are no policy considerations unique to Pennsylvania that call for a state standard for warrantless vehicle searches that differs from the federal standard.
Providing law enforcement with a clear rule for conducting such searches would “provide greater uniformity in the assessment of individual cases and more consistency with regard to the admissibility of the fruits of vehicular searches based on probable cause,” McCaffery said.
Todd, however, said the Supreme Court adopted Pennsylvania Rule of Criminal Procedure 203, which allows law enforcement to use “advanced communication technology” to submit search warrant applications and affidavits, in an attempt to reduce the number of warrantless searches.
“Today, in this commonwealth, as the result of Rule 203, which seeks to maximize the use of advanced communication technology, obtaining a search warrant is quite reasonably practicable; accordingly, as is constitutionally required, it should remain the first choice, unless exigent circumstances foreclose an investigating officer from obtaining it,” Todd said.
Hugh J. Burns Jr. of the Philadelphia District Attorney’s Office said the ruling “makes things clearer for everybody out there.”
Counsel for Gary, Alan J. Tauber of Philadelphia, called the decision “a great disappointment” and “a large step away” from Pennsylvania’s long-held commitment to preserving its citizens’ right to privacy beyond the protections afforded by the U.S. Constitution.
Zack Needles can be contacted at 215-557-2493 or firstname.lastname@example.org. Follow him on Twitter @ZNeedlesTLI.
(Copies of the 107-page opinion in Commonwealth v. Gary, PICS No. 14-0677, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •