While criminal defense lawyers’ reactions to the Pennsylvania Supreme Court’s recent ruling lowering the standard for warrantless vehicle searches ranged from saying it would have little practical effect to calling it “scary” and “disturbing,” all of them agreed that the decision marked a drastic departure from the court’s precedent.
In an April 29 decision that found the justices more deeply divided than a 4-2 split might suggest on its face, the court 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 when 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 in the case—ruled in Commonwealth v. Gary to adopt the federal exception, which requires no additional exigency beyond the inherent mobility of a motor vehicle.
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 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 said.
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 found “inconsistency in the court’s 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.”
Steven F. Fairlie, a criminal defense attorney at Fairlie & Lippy in North Wales, Pa., said the justices in Gary made a “180-degree turn” away from state Supreme Court precedent.
“It’s a huge change in the law because you used to have greater protection under Pennsylvania law than under the federal constitution and now it’s exactly the same,” Fairlie said. Pennsylvania citizens “have lost that greater protection,” he added.
Kevin V. Mincey, a criminal defense attorney at Mincey & Fitzpatrick in Philadelphia, said it was “mind-boggling” that the court would so radically depart not just from its own previous rulings but from the long-held tenet of Pennsylvania law that the state constitution affords more protection for its citizens’ privacy than the U.S. Constitution does.
Mincey said the court’s decision is “dangerous” in that it gives law enforcement greater deference to decide when it’s necessary to conduct vehicle searches, thus increasing the opportunities for abuse.
By removing the exigent circumstances layer, Mincey said, the only thing that now stands between law enforcement and the inside of a citizen’s vehicle is an officer’s determination of whether probable cause exists.
The Gary ruling “opens up the door for police officers to smell a lot more marijuana in cars and then not find anything,” Mincey said.
Fairlie said he believes the ruling will “definitely” lead to more unnecessary vehicle searches.
“I think the prior system would help to keep rogue officers from searching each and every car they want to,” Fairlie said. “Under this system, [an officer] can say he had probable cause and who’s really going to be able to dispute that?”
At least two justices had a similar view in Gary.
Justice Debra Todd penned a strongly worded, 43-page dissenting opinion, joined by Justice Max Baer, arguing 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.”
Not every defense lawyer said they thought the Supreme Court’s Gary decision would lead to rampant unnecessary vehicle searches, however.
Chester County Public Defender John R. “Jack” Merrick said that in the majority of the vehicle search and seizure cases his office handles, probable cause is not in dispute.
The Gary decision “limits the rights of defendants and broadens the authority of police—there’s no question about that—but many, many car searches have been validated by the courts in suppression hearings under the old rule,” Merrick said.
If anything, Merrick said, the Gary decision is likely to lead to further development of the legal definition of “probable cause” in Pennsylvania.
Still, Merrick said he does believe the adoption of the federal vehicle exception will tip evidence suppression hearings in favor of prosecutors in close-call situations.
“We can expect to win fewer of them,” Merrick said.
But Fairlie said making it easier to search vehicles without warrants could backfire on law enforcement in some cases.
In the past, police were required to get a judge to determine whether probable cause existed before they could obtain a warrant, Fairlie explained.
Post-Gary, however, law enforcement will not have the benefit of a judge’s approval before conducting a search, Fairlie said.
“Now they won’t know any better,” Fairlie said. “They think they have a solid case and then they find out in court they didn’t have probable cause and now there’s no way” to remedy that deficiency.
Law enforcement officials are “going to have to follow the rules,” Merrick added. “They’re going to have to be guided by court decisions. It’s not the subjective whim of a police officer.”
Prosecutors also acknowledged the potential pitfalls Gary has created for law enforcement officials.
Like Fairlie, Susquehanna County District Attorney Jason Legg said that, in light of Gary, law enforcement officials who decide on their own to conduct warrantless searches without a solid probable cause foundation are leaving themselves even more vulnerable to evidence suppression and possibly civil rights suits.
“Now, in the event they’ve made a decision to do a search without a warrant, they no longer have the judicial protection,” Legg said, adding that he doesn’t believe the vehicle exception has led to “unbridled police power” in the federal system so there’s little reason to believe it will at the state level.
Regardless of their opinions regarding the practical effect Gary could have, the defense attorneys interviewed were all in agreement that the ruling was an about-face from previous state Supreme Court decisions on vehicle searches.
Legg also said there is “no doubt” that the Gary ruling was a departure from state jurisprudence.
In the 1995 case Commonwealth v. White, for example, a divided Supreme Court ruled that police must obtain warrants to search suspects’ vehicles, except in extreme circumstances.
In another 1995 case, Commonwealth v. Kilgore, the justices ruled that evidence seized from a suspect’s truck during a drug sting must be suppressed because the police didn’t get a search warrant and exigent circumstances did not exist.
McCaffery addressed these rulings and others in Gary, finding that the state Supreme Court’s previous decisions 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, that court’s 1982 decision in United States v. Ross held that there is no separate exigency requirement.