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Warrantless Search of Auto in PA Now Permitted

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The Pennsylvania Supreme Court determines that an auto search no longer requires probable cause and warrant or exigent circumstances.  Only probable cause is needed.

By Attorney Elisabeth K.H. Pasqualini, Criminal Defense Attorney, Harrisburg, PA

On April 29, 2013 the Pennsylvania Supreme Court, in Commonwealth v. Gary Shiem, 26 EAP 2012, held that only probable cause is necessary to search an automobile.  This is contrary to the decisional law in PA over the past 225 years, but in line with the laws of several other states and the U.S. Supreme Court decisions.

Facts of Shiem:

In January 2010, Philly police officers pulled Shiem over for overly tinted windows.  Emanating from the car was the strong odor of marijuana.  The police asked Shiem if he had anything "they needed to be concerned about?"  He responded "weed."  The police summoned a drug detection dog to sniff the car and it alerted that marijuana was present.  They arrested Shiem and placed him in the cruiserwhile they searched his car and found two pounds of marijuana under the front hood of his car in a bag next to the air filter.

The Defendant challenged to search alleging it was not based upon probable cause and a warrant or exigent circumstances.  The trial court (municipal court) found that an exigent circumstance existed and denied suppression.  The Superior Court reversed stating that there was no exigency because the Defendant was in custody.  The Supreme Court granted review of the appeal.

What does the U.S. Supreme Court say about Auto Searches?

The U.S. Supreme Court has held that the inherent mobility of the vehicle and the fact that a vehicle is property, not like a house, renders the expectation of privacy in a vehicle lower under the Federal Constitutional standards.  In other words, the inherent mobility of the vehicle is the exigency. 

What is Probable Cause?

Facts and circumstances, in their totality, that would render an average person of the belief that a crime or crimes has, is, or will be committed.

The Rationale:

The court seems to find that its interpretations of Article I, Section 8 of the PA Constitution and its companion 4th Amendment to the U.S. Constitution have grown distinctly similar.  Inherent mobility of the vehicle renders an exigent circusmtance if the police could not immobilize the vehicle until a warrant arrives AND one has a diminished expectation of privacy in a car.

Does this New Rule Apply to situations prior to the decision?

The Pennsylvania Constitution does not mandate or prohibit the retroactive or prospective application of a new rule of law.  At common law in Pennsylvania, a decision announcing a new rule of law was normally considered to be retroactive.  In determining whether to apply a new rule retroactively or prospectively, a court should take into account the purpose to be served by the new rule, the extent of reliance on the old rule, and the effect on the administration of justice by the retroactive application of the new rule.

Here, the Court did not expressly state in the 62 page opinion whether the new rule was to be applied retroactively to cases that may have occurred prior to date or were on appeal as of the date of the decision.  However, chances are that the courts of the Commonwealth will view the decision to apply to current cases.

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