Fourth Amendment

Pennsylvania Supreme Court Expands Police Power to Conduct Warrantless Car Searches


In a major victory for state law enforcement, the Pennsylvania Supreme Court on Tuesday broadened the power of the police to conduct warrantless motor vehicle searches.

At issue in Commonwealth of Pennsylvania v. Gary was a 2010 traffic stop in Philadelphia where the officers claimed to detect the smell of marijuana coming from the vehicle. The resulting search turned up two pounds of the drug. According to the suspect, Shiem Gary, his right to be free from unreasonable search and seizure under Article One, Section Eight of the Pennsylvania Constitution, which largely matches the text of the Fourth Amendment to the U.S. Constitution, was violated by this warrantless search of his vehicle.

Pointing to previous state court rulings, Gary argued that while the U.S. Supreme Court does allow for warrantless car searches based only on "probable cause," the Pennsylvania high court has imposed additional restrictions on law enforcement under the state constitution that count in his favor. For example, if Pennsylvania police are going to search a car without a warrant, they need both probable cause and an "exigent circumstance," such as evidence in "plain sight" inside the car, or a threat posed to officers or the public. The U.S. Supreme Court, by contrast, requires only probable cause for warrantless car searches in identical scenarios under the Fourth Amendment.

In its ruling this week, the Pennsylvania Supreme Court agreed that its previous decisions in this area have been a "departure" from the federal standard. But the court did not see that as a good thing. Instead, it rejected what it called the state's "fractured jurisprudence" in order to adopt "the federal automobile exception [to the Fourth Amendment], which requires only a finding of probable cause, and no exigency beyond the inherent mobility of a motor vehicle, to support a warrantless vehicle search."

In effect, Pennsylvania has adopted a narrower standard and will no longer offers its residents and visitors greater protection against warrantless car searches by the police.

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  1. I predict Pennsylvania cops are going to start smelling pot in every car they want to search. I further predict this easy, obvious prediction will somehow be an unforseen, unintended consequence.

    1. How could anyone have known? That’s not what we meant!

    2. Cops do this now, everywhere. Ohio’s state highway patrol routinely tells motorists that they smell marijuana before they request the motorist’s consent to search. I suppose the idea being that most people will consent in order to quell the apparent suspicion cast upon them.

  2. Every marijuana case I have ever seen has at least one of two statements from the cops: “I could detect the smell of marijuana coming from the car” or “I felt a leafy green substance in his pocket.”

    1. The easiest way to get around probable cause requirements is to manufacture it. All a cop has to do is claim one of his five senses detected a victimless crime in progress. And no one of import doubts his unproven word.

  3. In a major victory for state law enforcement…

    And a defeat for judicial rubber stamp makers.

  4. Hmm, probably cause?

    The victim err defendant refused to consent to a search indicating that he had something to hide.

  5. Courts and cops have absolute total contempt of the Fourth Amendment.

    That we pretend it still exists is both laughable and sad.

  6. The sad thing is that these justices will never experience what they just authorized to be done to the peons.

    My guess is that when their plates are queried by a cop on patrol, the fact that they are on the court is communicated to the ossifer, who then treats them with kid gloves.

    1. I’d wager their nieces, nephews, and grandchildren are not in the database of moreequalthanothers citizens.

  7. Is that Rolling Rock I smell?

  8. It’s cute how the courts think that “probable cause” actually means anything any longer. They persist in the myth of the honest cop.

    Cops just manufacture any excuse they can back up with the flimsiest of reasoning, smells, dog hits, leprechauns, and viola, probable cause!

    1. Violas are probable cause now?

      1. Well, if you ask the violinists…

  9. Relevant:

    The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

    To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. –Thomas Jefferson.

    1. I fail to see how removing that power would make us better off.

      The real problem is that the Exec and Legis branches have failed to understand that they DON’T have to wait for the court to decide something is unconstitutional. That alone is enough to vote against something.

      1. TJ’s plan was state nullification of unconstitutional laws. Every state could, and should protect the liberties of it’s residents against the feds.

        1. That was before the 14th empowered the feds to protect citizens rights against the states, which I think is a good thing. The states have a lot more powers (or that’s the idea anyway) and a lot more ways they can violate people’s rights.

          If the federal government only provided a defensive military, whatever border control is necessary, did some proper regulation of actual interstate commerce and kept states from violating people’s civil rights, I’d be OK with that.

          1. I would propose that if the president has the power to veto Congress, and Congress also has the power to override that veto, that if the courts strike down a law that Congress, possibly in combination with the president, should be able to override a court ruling. For example, 2/3 of each house and the president agree that that SCOTUS is full of shit, therefor that court decision is null and void.

    2. I don’t really get that. As long as the court can only invalidate laws and not make up new ones, the power to strike down laws seems like the only way the courts can really have an effective check on the legislature. The legislature clearly doesn’t give a shit if the laws it passes are constitutional. They do whatever they can get away with.

      And in cases like this, there is nothing to stop the legislature from passing a law making the standards for searches stricter again.

      I don’t see how the power to strike down laws makes the court despotic at all. At least from a libertarian perspective. I suppose people who think that democracy is more important than individual rights might see it that way.
      In fact, I think there should be a special court whose job is to seek out and destroy unconstitutional laws without having to wait for someone to bring a specific complaint.

      1. but it seems here that the Pa court rewrote the state constitution, no longer allowing it to be more restrictive on police activity than the federal constitution.

        They ruled that it was good to have uniformity and to reduce the number of motions filed. That all sounds legislative to me, and says nothing about whether the existing procedures were unconstitutional rather than just inconvenient to the government.

    3. ballot box, cartridge box, soap box, jury box.

      1. One of those things is not like the other!

  10. Pennsylvania used to offer broader protection for freedom in this area than did the SCOTUS. That was bad, so the obvious solution was to reduce the protection in PA to the bare minimum that the state supreme court could get away with.

    Some people say that Ayn Rand went overboard in characterizing her villains. I think she didn’t go far enough.

  11. Out of curosity, is the scope of their search limited to the context of the probable cause? In other words, they claim to smell marijuana, they search the car without Joe Iron City Sixpack’s permission or a warrant, they find cocaine. Can they arrest for cocaine possession? Or must the crime pertain to why they started searching without permission/warrant in the first place?

    1. I don’t think it matters.

      1. I’m not a law talking guy, but I don’t think it matters either. If they search your car because they claim they smell pot, but instead find a bunch of body parts in your trunk, they’re not going to tip their hats and allow you to go about your business.

        1. “Clearly you dismembered a bunch of pot smoking hippies.”

    2. Under many circumstances improperly obtained evidence can still be used. The exclusionary rule applies only when it can be argued that the evidence itself is unreliable because of how it was obtained, and even then it’s up to a judge’s discretion whether or not it should be excluded. Now that discretion can be challenged in appeals and retrials, but it’s still up to the presiding judge.

  12. Hey, but the good news is, we still have state-controlled liquor and wine sales!


    Our Supreme Court is as useless as our governor. One of them was recently removed and convicted of corruption. After the legislature unpassed an unpopular pay raise for themselves and the judiciary, the Supremes ruled that they wouldn’t give it back because of the constitution, so there.

    1. I remember something like that happening like 10 years ago in PA. Did it happen again?

      1. Yeah that shit was 2005-06

  13. You’ve got a fiend in Pennsylvania.

    1. Michigan on the Susquehanna.

  14. Seems to me that the major problem here is prohibition. With real crimes, people will report things to the police. The only reason to do stupid roadside searches like this is to find “crimes” without victims because no one (except some asshole busybodies who can’t mind their own business and buy the drugwar bullshit) is going to call the cops because someone is transporting some drugs. Government getting into the business of protecting people from their own decisions and desires ruined any hope of having respectable law enforcement. Prohibition requires massive invasions of privacy.

  15. As a young-ish person (25), stories like this just reinforce something I’ve observed for some years now: I don’t know anyone my age who spends any time dwelling on the possibility of being the victim of criminals. Unless you live in the worst part of an inner-city area, it’s just too remote a possibility to think too much about.

    But everybody fears becoming a victim of the cops.

    1. I think you will find that a lot these days. There are still plenty of people who think that the cops are great and on your side. But more and more people of all walks of life are starting to see things differently. I hope it makes some difference eventually. I think that the biggest problem is that people are afraid to make too much stink about it for fear of what cops can do to them in reprisal. They really are fucking gangsters.

    2. Would anyone you know call the cops if they were a victim of a crime?

      1. For something really extreme like a murder attempt or kidnapping, yeah, probably, even I would.

        But I assume you’re referring to more mundane crimes like getting your car broken into or getting mugged on the street, in which case no, almost surely not.

        It’s pretty widely assumed the cops will just make you file a report, throw it in a filing cabinet somewhere, and never look into it, so why bother?

        1. Last time I called the cops they weren’t the slightest bit interested in the broken window and forced entry into my apartment. They were interested in finding an excuse to arrest me. First they ran me for warrants, then when that didn’t work they asked like ten times for my consent for them to search for drugs. I wouldn’t give it to them, so they left. Didn’t even file a report. The only possible reason I could see for calling the cops would be a dead body, and that’s only if I didn’t think I could dispose of it myself. I’ve got a swamp out back, and as long as the EPA exists, no one will ever develop the land since wetlands are sacred. I’m sure I could figure something out.

          1. The only possible reason I could see for calling the cops would be a dead body, and that’s only if I didn’t think I could dispose of it myself. I’ve got a swamp out back, and as long as the EPA exists, no one will ever develop the land since wetlands are sacred. I’m sure I could figure something out.

            To start with you might consider running a VPN so your plan of action can not be inferred from your web history years from now when you’re a person of interest and they’re doing a warrantless search.

        2. It’s pretty widely assumed the cops will just make you file a report, throw it in a filing cabinet somewhere, and never look into it, so why bother?

          If I was filing an insurance claim, such reports are substantiation of your claim of a theft loss. Other than that, no I would absolutely not involve the cops. Those bastards don’t even know where I live and I want to keep it that way. So if there’s ever a desire to kick in my door and shoot my dogs and terrorize my family, I find out when they kick in the door of my official residence.

      2. I’m sure I know plenty of people who would. I probably would if it were something violent where I still had reason to fear, but if it involved police coming to my house at all, I’d give it a lot of thought.

  16. What else is new? They keep on taking one right after another. Already one can’t even have thoughts. Pity

  17. I smell a rat.

  18. Doesn’t surprise me in the least. Pennsylvania Judges have a long notorious history of corruption, fraud, and criminal racketeering.

    Supreme Court Justice Joan Orie Melvin has resigned from the bench following her criminal conviction stemming from her use of state resources to further her judicial campaign.

    The FBI is investigating Pennsylvania Supreme Court Justice Seamus P. McCaffery over fees his wife received for referring clients to personal-injury law firms, The Inquirer has learned.

    Two former Luzerne County judges are serving lengthy prison terms in connection with the “kids for cash” scandal. Prosecutors say children were locked away in the facilities, often for minor offenses, by judges who took illegal payments from the facilities’ builder and co-owner. Former Luzerne County judge Mark A. Ciavarella Jr. was sentenced to 28 years in prison after he was convicted of racketeering and conspiracy. His former colleague Michael Conahan pleaded guilty to a racketeering charge and was sentenced to more than 17 years.

    The governor signed a bill into law that puts the kibosh on the scandal-plagued Philadelphia Traffic Court, which has long been viewed as a bastion of corruption to court reformers.

    Pennsylvania’s Supreme Court in recent years has been plagued by corruption. In the 1990s, state Supreme Court Judge Rolf Larsen was impeached.

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