Police Warrantless Searches are once again illegal in Pennsylvania

The shock and awe of 2020 continues and there is still a week to go! While the COVID shutdown and economic disaster it has caused will continue into 2021, so will the legal fight regarding warrantless searches in Pennsylvania.    

What happened in Commonwealth v. Alexander?  The Pennsylvania Constitution once again offers greater protections against warrantless searches than the United States Constitution.     

In a huge opinion (Commonwealth v. Alexander) that will send shockwaves throughout criminal courts in Pennsylvania, on Tuesday, December 22, 2020, the PA Supreme Court ruled that police can no longer search cars without a warrant unless there is both probable cause and emergency circumstances that require immediate action.  This decision overrules and reverses the previous 2014 opinion in the case Commonwealth v. Gary 

Prior to Gary and now once again with the Alexander decision the search and seizure provision of our Commonwealth’s Constitution provides a person with greater protection against illegal searches and seizures than the U.S. Constitution. Pennsylvania through Article 1, Section 8, specifically prohibited a warrantless search of a motor vehicle unless police or law enforcement could provide evidence of exigent circumstances beyond the mere mobility of the vehicle.  Criminal defense lawyers can now make that argument again during a motion to Suppress evidence.    

This is major issue in all criminal defense cases but especially those involving illegal guns, drugs, narcotics, controlled substance, Drunk Driving and DWI.

Pennsylvania, with respect to these warrantless searches of vehicles didn’t follow the federal standard or the U.S. Constitution under the Fourth Amendment to the U.S. Constitution. This was a very important distinction between Pennsylvania and federal law, which remained in place until April, 2014, when the Pennsylvania Supreme Court decided the case of Commonwealth v. Gary.

What happened in Commonwealth v. Gary?

There the court held specifically held that the Pennsylvania Constitution does not provide any greater protection than the U.S. Constitution. In that case, the defendant, Gary, was stopped in Philadelphia for a window tint violation. During the police investigation, the officers smelled marijuana and asked Gary “if there was anything in the vehicle that they needed to know about”. When Gary admitted that there was “weed” in the car, the officers removed and placed him in a police vehicle while calling for a canine unit.

When the dog arrived, Gary attempted to flee and police apprehended him. The police then searched the car without a warrant and found two pounds of marijuana underneath the front hood in a bag lodged near the air filter. Gary’s trial attorney filed a motion to suppress the illegal search under the Pennsylvania Constitution, which the Philadelphia Municipal Court and the Court of Common Pleas denied. The Pennsylvania Superior Court reversed the decision and an appeal was made to the Pennsylvania Supreme Court.

In Gary, the Pennsylvania Supreme Court noted that the Pennsylvania Constitution can provide greater protections, it found that those protections only apply when there is independent state constitutional analysis that would indicate that a standard should be applied. The Court in Gary specifically found that the mobility of the car alone didn’t necessarily invalidate a warrantless search of a vehicle and the expectation of privacy with respect to one’s automobile is significantly less than one’s home or office.

The Court specifically found that Article 1, Section 8 doesn’t confer any increased privacy protection than the U.S. Constitution and therefore a person’s expectation of privacy is no different. It further found that the U.S. Constitution and the Pennsylvania Constitution employ the same two part test to determine an illegal search and seizure: (1) an evaluation of the person’s subjective expectation of privacy; and (2) is the expectation of privacy one that society is prepared to recognize as reasonable and legitimate. This case represented a substantial departure from previous Pennsylvania case law regarding illegal searches and seizures.

Now through the Alexander decision, Pennsylvania is back to the Pre-Gary days which change the game for many defendants facing illegal gun and drug charges following a vehicle search.  Once again The Pennsylvania Constitution offers greater protections against warrantless searches than the United States Constitution.  Remember a State Constitution can offer more protection than the US Constitution but it can’t offer less.

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