Don’t Let The Police Search Your Car – Make Them Get A Warrant!
By: Pete Kratsa
In the context of law enforcement searches of automobiles, the Pennsylvania Supreme Court, in Commonwealth v. Alexander (No. 30 EAP 2019), recognized and restored the enhanced privacy interests of the citizens of our Commonwealth by relying upon our Commonwealth’s Constitution as opposed to the United States Constitution. This was long overdue and a victory for the residents of our state.
The federal standard for warrantless motor vehicle searches under the Fourth Amendment to the United States Constitution requires only probable cause. “Exigency,” examples of which are time-sensitive/evidence-dissipation or police safety concerns, are not required under the federal standard as the “inherent mobility” of an automobile relieves law enforcement of justifying the warrantless search on exigent circumstances.
For decades, the Commonwealth of Pennsylvania differed from the federal standard as to motor vehicle searches due to heightened privacy interests protected by Pennsylvania Constitution Article I, Section 8, as recognized in Commonwealth v. Edmunds, 586 A.2d 87 (Pa. 1991) and applied specifically to motor vehicle searches four years later in Commonwealth v. White, 669 A.2d 896 (Pa. 1995). The reasoning supporting this distinction was that while the federal constitution was focused on preventing law enforcement overreaching, Pennsylvania’s focus was the privacy interests of its citizens.
Unfortunately, in a regrettable decision, a divided Pennsylvania Supreme Court reverted to the federal standard in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). The effect of this: any time a police officer pulled someone over in Pennsylvania and could later convince a judge that probable cause existed at the time of the warrantless search, say the odor or marijuana or the fact that a pipe was in plain view, they had carte blanche to search the car.
The Alexander court rejected the Gary approach in re-affirming that the Pennsylvania Constitution affords greater protection to its citizens than does the Fourth Amendment to the United States Constitution. Police now require probable cause and exigent circumstances to justify a warrantless search of a car.
What does this mean in practical terms? It’s simple: if asked by the police whether they have your permission to search your car, politely decline and make them convince a judge that there is probable cause for a search warrant or proceed to search your car and later have to convince a judge that exigent circumstances existed justifying the search. That’s when lawyers, like yours truly, get to work in a courtroom as, if a judge agrees with our “Suppression” argument that the warrantless search was illegal under the Pennsylvania Constitution, the prosecutor is not permitted to use any evidence derived from the unlawful search. That bag of marijuana they found in your trunk? They can’t use it and your case is dismissed.
Of course, by not consenting to the search, the police may recognize they don’t have probable cause and let you go, avoiding court and lawyers like me altogether!