Commonwealth v. Alexander, K., Aplt. ( 2020 )

[J-51-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 30 EAP 2019
:
Appellee : Appeal from the Judgment of
: Superior Court entered on March 5,
: 2019 at No. 3246 EDA 2017
v. : affirming the Judgment of Sentence
: entered on September 12, 2017 in
: the Court of Common Pleas,
KEITH ALEXANDER, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0005971-
Appellant : 2016
:
: SUBMITTED: April 28, 2020
OPINION
JUSTICE DONOHUE DECIDED: December 22, 2020
We granted Appellant Keith Alexander (“Alexander”)’s petition for allowance of
appeal asking this Court to overrule or limit Commonwealth v. Gary, 91 A.3d 102 (Pa.
2014) (OAJC), a plurality result announcing that, without limitation, the federal automobile
exception to the warrant requirement of the Fourth Amendment1 to the United States
1 “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S. Const.
amend. IV.
Constitution applies in Pennsylvania.2 The United States Supreme Court’s Fourth
Amendment jurisprudence “recognizes the exception in a categorical manner and the
lawfulness of the search ‘do[es] not require an assessment of whether the policy
justifications underlying the exception, which may include exigency-based
considerations, are implicated in a particular case.’” Missouri v. McNeely, 569 U.S. 141,
150 n.3 (citing California v. Acevedo, 500 U.S. 565, 569–70 (1991)). What Gary did not
settle is whether the federal automobile exception is consistent with Article I, Section 8 of
the Pennsylvania Constitution.3 We have accepted the current appeal to answer that
question. For the reasons discussed in this opinion, we hold that Article I, Section 8
affords greater protection to our citizens than the Fourth Amendment, and reaffirm our
prior decisions: the Pennsylvania Constitution requires both a showing of probable cause
and exigent circumstances to justify a warrantless search of an automobile.
I. Factual and Procedural History
At approximately 2:30 a.m. on May 11, 2016, Philadelphia Police Officer Joshua
Godfrey and his partner stopped a vehicle driven by Alexander. The officers smelled
marijuana, and Alexander stated that he and his female passenger, who owned the
vehicle, had just smoked a blunt. Officer Godfrey arrested Alexander and placed him in
2
Three Justices opined that Article I, Section 8 of our charter offers no greater protections
than the Fourth Amendment. Then-Justice, now Chief Justice, Saylor “join[ed] the lead
Justices in adopting the federal automobile exception,” 91 A.3d at 138 (Saylor, J.,
concurring), but did not join the lead opinion. The concurring opinion provided the critical
fourth vote that bound the lower courts despite the lack of a majority rationale.
3 “The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or to seize any
person or things shall issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by the affiant.” Pa. Const.
art. I, § 8.
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the patrol vehicle, while the passenger was removed from the car. The officers searched
the interior for more marijuana but found only a metal box behind the driver’s seat. The
box opened with a key Alexander had on his keychain and contained bundles of heroin.
Alexander was charged with, inter alia, possession with intent to deliver and filed a
suppression motion challenging the search, which was denied. At a bench trial, he was
convicted of possession with intent to deliver.
The Superior Court affirmed, denying Alexander’s claim that the officers (1) lacked
probable cause to search the vehicle and (2) needed a warrant to search the lockbox.
The Superior Court noted that, under Gary, all that was needed to search a vehicle is
probable cause and the scope of the search extends to any container that may contain
the relevant items. As the lockbox could have contained marijuana, the search was
lawful. Alexander argued that Gary should be overruled, which the Superior Court
observed was done to preserve the issue for this Court’s review. We thereafter accepted
review on the following question:
In this case involving the warrantless search of a locked metal
box in a car following the arrest of the driver, should not this
court decide whether Commonwealth v. Gary, 625 Pa. 183,
91 A.3d 102 (2014), should be overruled or limited as being
inconsistent with privacy protections under Article I, § 8, and
this Court's decisions protecting privacy through the warrant
requirement?
Commonwealth v. Alexander, 218 A.3d 380 (Pa. 2019).
II. Gary and the Automobile Exception
The parties differ on whether the outcome of the suppression motion would have
been different prior to Gary. What is clear is that the federal exception as adopted by
Gary authorized the instant search. See United States v. Ross, 456 U.S. 798, 825 (1982)
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(holding that probable cause to search extends to every part of the vehicle and its
contents that may conceal the object of the search); Wyoming v. Houghton, 526 U.S. 295,
302 (1999) (holding that Ross extends to objects owned by a passenger; “Passengers,
no less than drivers, possess a reduced expectation of privacy with regard to the property
that they transport in cars . . . .”). We now turn to how the federal automobile exception
came to govern claims challenging warrantless automobile searches in Pennsylvania.
1.
In Gary, Justice McCaffrey, joined by then-Chief Justice Castille and Justice Eakin,
traced the development of the automobile exception in federal court and its corresponding
development in our courts. The automobile exception was first recognized in Carroll v.
United States, 267 U.S. 132 (1925), and the justification for upholding the search was
largely based on the impracticability of securing a warrant given that “the vehicle can be
quickly moved out of the locality or jurisdiction . . . .” Id. at 153. While Carroll noted that
“[i]n cases where the securing of a warrant is reasonably practicable” an officer must do
so, id. at 156, over time that limitation gradually disappeared. In Chambers v. Maroney,
399 U.S. 42 (1970), the Court upheld a search under the automobile exception where the
officers transported the vehicle to the police station and searched it there without a
warrant. The Court concluded that if the officers could immediately search the car under
Carroll, then they may also search it later. That holding is at odds with Carroll’s
observation that officers must obtain a warrant when feasible. The Maroney Court
reconciled that inconsistency by declaring that the preference for a magistrate’s judgment
on probable cause is questionable because officers could seize the car until the
magistrate ruled on whether probable cause to search existed. The Maroney Court
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believed it was arguable that seizing the car and its occupants was a greater intrusion
than simply immediately searching the car. “But which is the ‘greater’ and which the
‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety
of circumstances.” Id. at 51-52. The Court found it preferable to declare that either course
is reasonable under the Fourth Amendment.
The high Court also began to justify the automobile exception on the notion that
individuals have reduced expectations of privacy in their automobiles and expect less
privacy in their vehicles due to “the pervasive governmental regulation of, and local law
enforcement's extensive contact with, motor vehicles.” Gary, 91 A.3d at 110. The high
Court used the mobility and diminished privacy rationales together to justify a warrantless
search in California v. Carney, 471 U.S. 386 (1985). “The Carney Court invoked both the
ready mobility and the reduced privacy justifications to hold that a warrantless search,
based on probable cause, of a fully mobile motor home parked in a public lot did not
violate the Fourth Amendment[.]” Gary, 91 A.3d at 111. Once those justifications were
jointly invoked to justify searches it became clear that “application of the automobile
exception to the requirement for a search warrant requires only a finding of probable
cause and not a separate, distinct, or additional finding of exigency.” Id. There is no
question that the combination of the two rationales justifies the federal exception. Collins
v. Virginia, ___ U.S. ___, 138 S. Ct. 1663, 1669–70 (2018) (“The ‘ready mobility’ of
vehicles served as the core justification for the automobile exception for many years.
Later cases then introduced an additional rationale based on the pervasive regulation of
vehicles capable of traveling on the public highways.”) (quotation marks and citations
omitted).
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Turning to Pennsylvania law, Justice McCaffrey’s opinion concluded that “the
unmistakable implication from our cases until the mid–1990s is that this Court considered
the federal and state Constitutions coterminous” regarding the contours of the automobile
exception. Gary, 91 A.3d at 112. Reviewing the Pennsylvania decisions in this area at
length, his opinion observed that some cases before that time did suggest that our own
constitution provided some heightened protections. The writing opined that those cases
were mistakenly following the high Court’s original Carroll rule and failed to keep up with
doctrinal evolvements that embraced considerations beyond the inherent mobility of a
vehicle. “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.” Id. at 120.
The Gary Court did not dispute that our cases eventually broke from the federal
model, and both the lead opinion and the dissent identified the mid-1990s as the relevant
timeframe. The reason for that shift was due, in part, to our seminal decision in
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), which rejected United States v.
Leon, 468 U.S. 897 (1984) (holding that exclusionary rule does not apply if officers acted
in objectively reasonable reliance on a subsequently invalided search warrant) as
inconsistent with Article I, Section 8. “Article I, Section 8 is unshakably linked to a right
of privacy in this Commonwealth,” 586 A.2d at 898, and “[t]he history of Article I, Section
8 . . . indicates that the purpose underlying the exclusionary rule in this Commonwealth
is quite distinct from the purpose underlying the exclusionary rule under the 4th
Amendment, as articulated by the majority in Leon.” Id. at 897. While Edmunds involved
[J-51-2020] - 6
an application of the exclusionary rule, our holding was tethered to the fundamental
concern for privacy within our own constitution, and our decision
reiterated our statement in Commonwealth v. Sell, 504 Pa. 46,
65, 470 A.2d 457, 467 (1983), that “the survival of the
language now employed in Article I, Section 8 through over
200 years of profound change in other areas demonstrates
that the paramount concern for privacy first adopted as part of
our organic law in 1776 continues to enjoy the mandate of the
people of this Commonwealth.
Commonwealth v. Lewis, 636 A.2d 619, 625 (Pa. 1994).
The first post-Edmunds case in this Court to present a claim under Article I, Section
8 seeking suppression of items recovered following a warrantless automobile search was
Commonwealth v. White, 669 A.2d 896 (Pa. 1995), which held that the search at issue
was invalid because the Commonwealth failed to establish any exigent circumstances
beyond the vehicle’s inherent mobility. White was decided within days of two other
automobile search cases: Commonwealth v. Labron, 669 A.2d 917 (Pa. 1995), and
Commonwealth v. Kilgore, 677 A.2d 311 (Pa. 1995). In Labron, the defendant explicitly
raised a claim under Article I, Section 8, while the Kilgore defendant did not. Citing White,
we held in Labron that a warrant was required. In Kilgore, we cited Labron but not White
and likewise held that a warrant was required.
The Commonwealth appealed Labron and Kilgore to the United States Supreme
Court. In a per curiam opinion reversing both cases and remanding for further
proceedings, the high Court criticized those two decisions for “rest[ing] on an incorrect
reading of the automobile exception to the Fourth Amendment's warrant requirement[.]”.
Pennsylvania v. Labron, 518 U.S. 938, 939 (1996) (per curiam). The Court held that it
had jurisdiction because our decisions, while discussing “this Commonwealth’s
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jurisprudence of the automobile exception,” 669 A.2d at 924, and discussing several of
our own cases, did not satisfactorily demonstrate that the holdings constituted an
adequate and independent state judgment not reviewable by the United States Supreme
Court. The per curiam opinion stated that Pennsylvania law “thus appears to us
‘interwoven with the federal law, and . . . the adequacy and independence of any possible
state law ground is not clear from the face of the opinion.’ ” Pennsylvania v. Labron, 518
U.S. at 941 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983)) (ellipsis in
original).
Justice Stevens, joined by Justice Ginsburg, dissented because “the best reading
of Labron’s plain language is that it relied on adequate and independent state grounds.”
Id. at 943 (Stevens, J., dissenting). The dissent viewed our cases as grounded in our
own law, which “is almost perfectly reflected in the dissents to each case that were
penned by Justice Castille. In both instances, Justice Castille recognizes, even more
explicitly than the majority, that the decisions were based on state law.” Id. at 945. Later,
the dissenting opinion stated: “Labron does not rest ‘primarily’ on federal law; as Justice
Castille understood it, as the briefing in White understood it, and as the Commonwealth's
decision to stay out of White demonstrates, every indication is that the rule adopted in
Labron and White rests primarily on state law.” Id. at 947.
On remand, this Court reinstated its prior order that was reversed by the United
States Supreme Court. In an Opinion Announcing the Judgment of the Court authored
by Justice Zappala, we quoted the vacated Labron decision and therefore rejected the
[J-51-2020] - 8
high Court’s view that Labron was not based on an independent state ground.4 Justice
Castille, joined by Justice Newman, dissented based on his original dissenting opinion.
Justice Nigro concurred in the result without explanation. Thus, three Justices adhered
to White’s analysis and refuted the high Court’s assessment. See Florida v. Powell, 559
U.S. 50, 68 n.4 (“The [Labron] Court's analysis proved wrong; on remand, the
Pennsylvania Supreme Court reaffirmed its prior holding . . . .”) (Stevens, J., dissenting).
While the Labron remand was not decided by a majority of this Court, a number of
our decisions garnering clear majorities cited Labron and White for the proposition that
Article I, Section 8 offered greater protections than the Fourth Amendment. In
Commonwealth v. Luv, 735 A.2d 87, 94–95 (Pa. 1999), this Court addressed facts broadly
similar to those in White. Officers obtained a search warrant for Luv’s residence based
upon, inter alia, a controlled drug buy from Luv. On the day that the warrant was to be
served, an informant told police that Luv would be arriving at the residence with drugs in
his vehicle. The informant later stated that Luv was at Luv’s girlfriend’s house and would
be taking the drugs to a nightclub. Officers went to that residence and saw Luv’s car.
While police attempted to obtain a warrant for the vehicle, Luv entered the car and left the
scene. Because the warrant application would take at least an hour, and due to the
information that Luv would sell the drugs in the nightclub, officers stopped and searched
the car.
4 The Atlantic Reporter does not list the participating Justices. However, the Kilgore
decision on remand, which was issued the same day as the Labron remand, lists Justices
Zappala, Cappy, Castille, Nigro, Newman, and Chief Justice Flaherty as the participating
Justices. Because the same Justices would have participated in both cases, Justice
Zappala’s opinion was apparently joined by Justice Cappy and Chief Justice Flaherty.
[J-51-2020] - 9
We favorably cited White for “the general rule that a warrant is required to search
a vehicle,” and found that the warrantless search was proper under the circumstances.
Justice Castille concurred, noting his “belief that the majority continues to construe too
narrowly the automobile exception to the warrant requirements,” and urged the adoption
of a bright-line rule as he had set forth in his White dissent. Id. at 95.
Other cases, which did not produce clear majorities, cited White for our departure
from federal law. In Commonwealth v. Perry, 798 A.2d 697, 700 (Pa. 2002) (OAJC),
Justice Cappy’s opinion cited White for its holding that under Pennsylvania law “for a
warrantless search of a motor vehicle to be valid, there must be a showing of both
probable cause and exigent circumstances.” Justice Castille, joined by Justice Nemwan,
criticized the lead opinion for relying on what he viewed as dicta in White. Accepting
arguendo that “if this Court ever actually examined the issue as a state constitutional
matter” a majority would hold that exigency was required, Justice Castille argued that the
qualifying exigency was simply that “probable cause arose unexpectedly, i.e. in
circumstances that prevented police from securing a warrant before probable cause to
search the vehicle arose.” Id. at 717 (Castille, J., concurring). Then-Justice Saylor
authored a concurring opinion, agreeing with Justice Castille that “the scope of protection
afforded by Article I, Section 8 of the Pennsylvania Constitution in the arena of automobile
searches is a matter less settled than the majority opinion portrays.” Id. at 719 (Saylor,
J., concurring). However, the opinion acknowledged that our cases have “nevertheless
required both probable cause and exigent circumstances to justify a warrantless search,
and, at least in broad overview, it would not appear to have been the Court's intent to
dilute the exigent circumstances requirement by defining it solely in terms related to the
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development of probable cause.” Id. (citation to Luv omitted). Justice Nigro’s dissenting
opinion, joined by Justice Zappala, agreed that Article I, Section 8 requires both probable
cause and exigent circumstances; their disagreement was in the finding that an exigency
existed. “[C]oncluding that exigent circumstances excused the warrantless search of
Appellants’ car in the instant case . . . create[s] what amounts to an overarching warrant
exception based on potential danger to the police.” Id. at 721 (Nigro, J., dissenting).
Thus, while the opinions widely varied, at least four Justices viewed it as settled law that
Article I, Section 8 required some exigency in addition to probable cause.
In Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007) (OAJC), a case involving
an automobile search and application of the plain view exception, this Court described,
for the first time, Pennsylvania law as recognizing a “limited” automobile exception.
Justice Castille authored a concurring opinion in McCree reiterating his view that any
Pennsylvania limitation on the automobile exception was confined to cases in which
probable cause arose unexpectedly.
It is enough to state, for present purposes, that: (1) if this Court
were to squarely face the question of what is demanded by
Article I, Section 8 respecting automobile searches, I remain
inclined to hold that our approach should be coextensive with
the federal approach under the Fourth Amendment; and (2)
failing that square joinder of the issue, it is my view that this
Court's existing Article I, Section 8 holdings in this area (which
do not include a state constitutional analysis under
[Edmunds], at most suggest that, if Article I, Section 8 requires
an exigency to justify a probable cause-based warrantless
entry of a vehicle (probable cause is the only federal
requirement), all that is required is that the probable cause
“arose unexpectedly, i.e., in circumstances that prevented
police from securing a warrant before probable cause to
search the vehicle arose.” Perry, 798 A.2d at 717 (Castille,
J., concurring).
Id. at 635 (Castille, J., concurring) (footnote omitted).
[J-51-2020] - 11
In Commonwealth v. Hernandez, 935 A.2d 1275, 1280 (Pa. 2007), this Court
addressed whether a warrantless search was authorized under this limited automobile
exception. There, a shipping company employee became suspicious after Hernandez
arrived to pick up twenty boxes. Lacking the money owed, Hernandez left. The employee
opened up the packages and saw marijuana. He informed the police, who instructed the
employee to let Hernandez pick up the packages. Hernandez returned, paid for the
packages, and loaded them into a U-Haul truck, which the police stopped shortly
thereafter. An officer who arrived on scene after the initial stop decided to open the rear
rollup door for safety reasons, i.e. the potential presence of other people. He saw an
open box with an object he believed to be consistent with narcotics. Officers obtained a
search warrant for the truck based, in part, on what the officer observed.
Hernandez challenged the warrantless entry into the vehicle’s cargo area. The
majority began by discussing the federal rule: “Under the federal Constitution, law
enforcement personnel may conduct a warrantless search of an automobile as long as
probable cause exists.” Id. at 1280. In comparison, “we have not adopted the full federal
automobile exception.” Id. (quoting McCree, 924 A.2d at 629). Hernandez stated that
the “dual requirement of probable cause plus exigency is an established part of our state
constitutional jurisprudence.” Id. Hernandez settled that “danger to police or the public
indeed satisfies the exigency requirement for warrantless vehicle searches in this
Commonwealth.” Id. at 1281. We took that step because the Superior Court had
interpreted our precedents to mean that the “police danger exception” to the warrant
requirement was a “separate and new ‘exception’ to the warrant requirement for vehicles.”
Id. at 1282. Hernandez clarified that danger to the police or public is simply an example
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of a qualifying exigency that, when paired with probable cause, constitutes a valid
exception to the warrant requirement. We cautioned, however, that just because
“potential for danger to police or the public is enough to constitute exigent circumstances
does not mean that a mere assertion of danger is sufficient. Rather, police must be able
to articulate the danger posed under the specific circumstances of the case.” Id.
Hernandez applied that standard to the facts of the case and concluded that the asserted
danger was insufficient to qualify as an exigent circumstance.5
Justice Castille concurred in the result only, filing an opinion expressing his view
that “the warrantless search of the vehicle was justified under the automobile exception
to the warrant requirement.” Id. at 1285 (Castille, J., concurring). Justice Castille
reiterated his view that this Court had rendered holdings establishing that probable cause
and exigent circumstances must be present, but faulted those holdings for lacking a
sufficient rationale. “[A]lthough there have been state constitutional holdings rendered
under Article I, Section 8 which advert to some exigency beyond the federal requirement,
there has yet to be a candid and responsible Edmunds-style state constitutional analysis
or explanation for that departure from perfectly reasonable federal authority.” Id. at 1286–
87. Justice Castille believed that a qualifying exigency was present, i.e. the mobility of
the vehicle plus the lack of sufficient time to obtain a warrant. Id. at 1288-89. In his view,
the police could not be sure whether Hernandez would even return to the shipping store,
and Hernandez ended up taking possession of the contraband within thirty minutes of the
shipping employee’s information. “In these exigent circumstances, it was not reasonably
5 We ultimately determined that the search warrant was valid notwithstanding the
references to the information gained by the illegal warrantless entry.
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practicable for police to obtain a warrant in advance of the vehicle stop. That is enough
to decide this case.” Id. at 1290. Then-Justice Saylor, joined by Justice Eakin, authored
a concurrence urging adoption of “the federal automobile exception subject to a warrant-
when-practicable requirement[.]” Id. at 1290 (Saylor, J., concurring).
Following McCree and Hernandez, the Superior Court also began referring to the
“limited” nature of Pennsylvania’s automobile exception. In Commonwealth v. Collins,
950 A.2d 1041, 1045 (Pa. Super. 2008) (en banc), reflecting Castille’s minority view in
McCree, the panel observed in a footnote that the “more stringent ‘limited automobile
exception’ . . . grants a lawful right of access without a warrant only in the additional
circumstance that an officer had no advance knowledge notice that the vehicle stopped
or encountered was involved in a crime.” Id. at 1045 n.4.6 In Commonwealth v. Copeland,
955 A.2d 396, 397 (Pa. Super. 2008), the court quoted McCree for the proposition that
Pennsylvania recognizes a limited automobile exception. Id. at 400. However, that court
viewed McCree, without the Castille overlay, as coterminous with White, writing that a
warrantless search is authorized “when there exists probable cause to search and exigent
circumstances necessitating a search.” Id. (quoting Commonwealth v. Casanova, 748
A.2d 207, 211 (Pa. Super. 2000)). In Commonwealth v. Brown, 23 A.3d 544, 553 (Pa.
Super. 2011) (en banc),7 the court explained, “Our Supreme Court has never recognized
the federal automobile exception . . . . Instead, in at least five cases, majorities of our
6 This author dissented in Collins. Regarding the “limited automobile exception,” the
dissenting opinion characterized the majority’s discussion as unnecessary and
represented a “disputable interpretation of the status of the law in Pennsylvania[.]”
Collins, 950 A.2d at 1048 n.8 (Donohue, J., dissenting).
7 This author also wrote the opinion in Brown.
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Supreme Court have rejected the federal automobile exception in favor of what the
plurality in McCree dubbed the ‘limited automobile exception.’ ”
2.
Taken together, prior to Gary, this Court’s precedents clearly held that Article I,
Section 8 did offer greater protections than the Fourth Amendment. Pennsylvania
recognized an automobile exception, but unlike its federal counterpart, ours was “limited”
in application. Indeed, even Justice Castille, the perennial critic of White, conceded that
this Court held that Article I, Section 8 did not follow the United States Supreme Court in
lockstep. See Hernandez, 935 A.2d at 1286-87 (“[A]lthough there have been state
constitutional holdings rendered under Article I, Section 8 which advert to some exigency
beyond the federal requirement, there has yet to be a candid and responsible Edmunds-
style state constitutional analysis or explanation for that departure from perfectly
reasonable federal authority.”) (Castille, J., concurring). Chief Justice Saylor, concurring
in Perry, agreed that this Court “has nevertheless required both probable cause and
exigent circumstances to justify a warrantless search[.]” Perry, 798 A.2d at 719 (Saylor,
J., concurring) (emphasis added).
While not explicitly questioning the stare decisis value of those cases Justice
McCaffrey’s opinion, echoing Justice Castille, criticized our precedents for failing to
“conduct[ ] any analysis remotely similar to an Edmunds-style analysis or specifically
address[ing] the requirements of the Pennsylvania Constitution in any way . . . ”. Gary,
91 A.3d at 126 n.14. “The lack of a thorough, state-specific constitutional analysis has
contributed to the confusion and disagreement with regard to the automobile exception
that have continued . . . and indeed persist to this date, as is well-illustrated by
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examination of several cases decided within the past eleven years.” Id. at 120. The three
Justices observed that “this Court has been unable to articulate a consistent, clear, and
readily applicable majority expression of the automobile exception to the warrant
requirement.” Id. at 124.
Disagreement as to the parameters of the limitations on the automobile exception
aside, until Gary a majority of this Court never suggested that Article I, Section 8 is
compatible with the United States Supreme Court’s Fourth Amendment holdings when
analyzing warrantless automobile searches. In other words, what splintered the Court
was just how “limited” our limited exception is and whether particular facts qualified as an
exigency justifying the need to dispense with a magistrate’s judgment. That cannot be
mistaken for a suggestion that the foundation for those disputes--consistent majority
expressions that Article I, Section 8 differs from the Fourth Amendment--was somehow
open to debate. Nevertheless, the Gary plurality deemed it appropriate to apply
Edmunds, and we now turn to its discussion of those factors.
Edmunds suggested to litigants urging adoption of greater protections under the
Pennsylvania Constitution to discuss and develop at a minimum the following four factors:
“1) text of the Pennsylvania constitutional provision; 2) history of the provision, including
Pennsylvania case-law; 3) related case-law from other states; 4) policy considerations,
including unique issues of state and local concern, and applicability within modern
Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 895. The Gary lead opinion
addressed those factors. As to the first factor, the opinion concluded in short order that
“there is nothing in the text of Article I, Section 8 to suggest that it confers greater
protection than does the Fourth Amendment with regard to a warrantless search of a
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motor vehicle.” Id. at 125. For the second consideration, the plurality opinion concluded
that while Article I, Section 8 can provide greater protections than its federal counterpart,
in Commonwealth v. Russo, 934 A.2d 1199, 1205 (Pa. 2007), this Court stated that “the
scope of protection afforded under Article I, Section 8” uses the same two-part test: a
person must demonstrate “(1) a subjective expectation of privacy; and (2) that the
expectation is one that society is prepared to recognize as reasonable and legitimate.”
91 A.3d at 127 (quoting Russo, 934 A.3d at 1211). On this point, the Gary lead opinion
agreed with the United States Supreme Court’s observations regarding the reduced
expectations of privacy in vehicles, particularly the fact that a vehicle’s purpose is
transportation and that they are extensively regulated. Id.
Turning to the third factor, most states have adopted the federal exception, and
several states had formerly issued decisions granting more protections but over time
modified those holdings “to conform to and/or remain consistent with U.S. Supreme Court
jurisprudence in this area, jurisprudence which, as we have discussed above, has
undergone its own modifications over time.” Id. at 131. These Justices identified two
states that have refused to adopt the bright-line federal automobile exception: Montana
and Washington. Their opinion found those interpretations unpersuasive due to textual
differences. Montana’s rejection of the federal exception is “[b]ased on the Montana
Constitution's unique and explicit privacy provision[.]” Id. Washington likewise “explicitly
protects privacy” in its constitution. Id. “Given that the Pennsylvania Constitution has no
provision analogous to Article I, Section 7 of the Washington Constitution, or to Article II,
Section 10 of the Montana Constitution, we conclude that the experience of these states
is unpersuasive.” Id. at 132.
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For the fourth factor, discussing the policies involved and unique issues of concern,
the Gary authors found the benefits of a bright-line rule to be preferable to a case-by-case
examination of whether exigent circumstances existed. A survey of cases “shows how
the determination of exigency—or lack thereof— can turn on small facts in the midst of a
complex, volatile, fast-moving, stressful, and potentially threatening situation in the field.”
Id. at 134. Other discrete facts, such as whether the officer could safely guard a vehicle
or another person might move the vehicle, could matter a great deal. Additionally,
individual jurists naturally weigh the exigencies of a given fact pattern differently
depending on the facts, meaning that officers could not readily ascertain what types of
situations would qualify as an exigency. Thus, a bright-line rule was preferable.
Justice Todd, joined by Justice Baer, dissented. Justice Todd observed that
“Pennsylvania has long been at the constitutional forefront in recognizing the vital
necessity of prior judicial approval of searches conducted by governmental officials,
obtained through the warrant process, in order to maintain the fundamental right of the
people to security from unreasonable searches and seizures.” Id. at 139 (Todd, J.,
dissenting). Justice Todd agreed with the plurality that until the White decision, this Court
“viewed the twin requirements of probable cause and exigent circumstances as mandated
by both the Fourth Amendment to the United States Constitution and Article I, Section 8
of our own Constitution.” Id. at 141. Unlike the plurality, the dissent interpreted White “to
reflect a deliberate choice by our Court to chart an independent course in our
jurisprudence under Article I, Section 8,” as opposed to the federal approach. Id. Thus,
while the plurality characterized their opinion as engaging in the Edmunds analysis in the
first instance, Justice Todd believed that the failure in prior cases to explicitly discuss
[J-51-2020] - 18
those factors did not diminish their precedential effect. Cases subsequent to White
“continu[ed] to insist on both probable cause and exigent circumstances as justification
for a warrantless search of an automobile.” Id. at 141. Accordingly, those precedents
demonstrated that the Court made a deliberate choice not to follow federal law.
Justice Todd proceeded to review the four Edmunds factors. She “regard[ed]
these factors to convincingly compel the rejection of a coterminous approach.” Id. at 143.
For the first factor, the dissent disagreed that nothing in the text suggests greater
protection under Article I, Section 8. This constitutional provision “uses the term
‘possessions,’ which our Court has previously interpreted to mean intimate things about
one's person, and also specifies that no warrant to search ‘any place,’ or to seize ‘any ...
things shall issue without ... probable cause.’” Id. (quotation marks and citations omitted).
The absence of similar language in the Fourth Amendment suggests that Article I, Section
8 “was intended to protect an individual’s privacy interest in all of his or her possessions
or things in any place they may be,” including a vehicle. Id.
Addressing the second factor, regarding the history of the text and how it has been
applied, Justice Todd engaged in a scholarly review of the development of Article I,
Section 8 and the Fourth Amendment to the United States Constitution. Id. at 143-48.
“Based on this rich history, I regard our Constitution's warrant requirement to be one of
singular and distinctive importance to Pennsylvania, in contrast to the later warrant
requirement of the Fourth Amendment to the United States Constitution, which was
based, in part, on this provision.” Id. at 148. Article I, Section 8 recognizes “a robust
individual right of privacy in one’s papers and possessions, and protects that privacy right
through its warrant requirements for searches of ‘any place’ such items may be found.”
[J-51-2020] - 19
Id. The dissent further criticized the United States Supreme Court’s reasons for departing
from the initial rationales expressed in the earliest cases, noting that the Court “has never
fully explained its rationale” in dispensing with a warrant requirement. Id. at 149.
Moving to the privacy interests involved, Justice Todd strenuously disagreed with
the plurality’s diminishment of privacy expectations regarding vehicles. Quoting scholarly
criticism of the high Court’s arguments on that point, Justice Todd concluded that the
plurality’s analysis “disregards the plain fact that today's automobile is not just used to
transport persons, but, also, to store and transport a myriad of their most private
belongings.” Id. at 152. Nor is a car just a car; most Americans view their vehicle “as
something more than just a means of transportation.” Id. at 153.
As to the third factor, Justice Todd found the cases rejecting the federal exception
to be more persuasive in light of the right to privacy imbedded in our charter as recognized
in Edmunds. Finally, regarding the fourth factor’s policy considerations, Pennsylvania
has “purposefully sought to encourage the use of warrants to conduct searches by making
them far easier for police officers to obtain in conducting field investigations.” Id. at 157.
Many of the precedents that found it impracticable for officers to obtain warrants could
not account for later technological developments that have significantly eased that
burden. In fact, warrants took considerably longer to obtain in the 1920s and yet the
Carroll Court even then expressed a preference for warrants. “I consider police officers
eminently capable as trained professionals of making the basic assessment of whether it
is reasonably practicable for them to seek a warrant, under all of the circumstances
existing at the time they wish to search an automobile.” Id. at 159. According to the
[J-51-2020] - 20
dissent, the plurality failed to adequately consider whether technological developments
made that task feasible.
All that analysis would settle nothing other than the case itself if not for a fourth
vote. Now-Chief Justice Saylor filed a concurring opinion, agreeing to adopt a bright-line
rule. Id. at 138 (Saylor, J., concurring). He did so despite the “inconsistency in the courts'
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,” and argued for “some clear and appropriate boundaries operating in both
directions.” Id. (footnote omitted).
As reflected in the lead opinion, this Court has obviously had
difficulty for quite some time in managing the appropriate
contours of the automobile exception to the warrant
requirement. Although I have some reservations, for the sake
of certainty and consistency, I join the lead Justices in
adopting the federal automobile exception.
Id.
Then-Justice Saylor did not join Justice McCaffery’s opinion. As the remaining
Justices split three-to-two on the underlying Article I, Section 8 dispute, there was no
majority opinion expression on the parameters of the protections under our Constitution.
III. Parties’ Arguments
Alexander
Alexander criticizes the United States Supreme Court’s development of the federal
automobile exception as unmoored from its original rationale. The original formulation
set forth in Carroll focused on “the need for quick action made necessary by reason of
the inherent mobility of a car.” Alexander’s Brief at 9. He identifies five categories of
cases in which the United States Supreme Court has approved warrantless vehicle
[J-51-2020] - 21
searches even though the need for quick action did not justify the searches: (1) where
police have advance notice that a car will be carrying contraband; (2) where police have
sufficient time to secure a warrant before searching parked vehicles; (3) where the
suspect and vehicle are in police custody or otherwise secure; (4) searches of packages
and containers within a vehicle on-site; and (5) searches of packages and containers that
are removed from the vehicle and searched days later. Alexander argues that the result
in Gary captures the warrantless searches in this array of situations despite the absence
of any exigency.
Alexander further argues that these results are inconsistent with Article I, Section
8 under Edmunds. His brief proceeds to discuss each Edmunds factor, and his
arguments largely track Justice Todd’s dissenting opinion in Gary. Alexander adds that
the plurality opinion “failed to acknowledge that this Court has consistently applied the
warrant requirement in interpreting Article I, Section 8” in other contexts, and criticized
the opinion for omitting detailed discussion of other areas where Pennsylvania affords
greater protection. Id. at 15. See, e.g., Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001)
(departing from Fourth Amendment and holding that Article I, Section 8 requires warrant
for release of blood alcohol test administrated by hospital); Commonwealth v. Melilli, 555
A.2d 1254, 1257 (Pa. 1989) (recognizing a privacy interest in telephone numbers
accessible by telephone company and holding that Article I, Section 8 requires warrant
for installation of pen register device); Commonwealth v. Grossman, 555 A.2d 896, 899
(Pa. 1989) (declaring that warrant authorizing seizure of “all files” was unconstitutionally
overbroad under Article I, Section 8; the requirement for describing items to be seized
pursuant to a warrant under Article I, Section 8 is more stringent than the Fourth
[J-51-2020] - 22
Amendment). He argues that the Gary plurality erroneously asked whether enhanced
privacy protections should be extended to vehicles instead of asking whether the warrant
requirement of Article I, Section 8 should apply as a constitutional norm.
Alexander acknowledges that the majority of states apply the federal automobile
exception, but he insists that this factor may not be analyzed merely by making a tally of
the number of states adopting each position and accepting the resulting majority view.
As Justice Todd’s dissent developed, the courts adopting the federal exception “do not
share our Commonwealth's robust historical commitment to the protection of the right of
privacy, . . . thus being of little guidance for the purposes of Edmunds." Gary, 91 A.3d at
154 (Todd, J., dissenting).
For the fourth factor, Alexander adds a number of policy considerations in support
of overruling Gary, with the primary consideration being the number of other exceptions
to the warrant requirement often present in automobile cases that remain available,
including voluntary consent, exigent circumstances that make it too difficult to obtain a
warrant, and plain view.
Additionally, Alexander submits that Justice Todd more accurately captured the
nature of the privacy interest in a vehicle. The dissent agreed with commentary arguing
that most Americans have used their cars for storage at one time or another and that
Americans view their vehicle as more than a means of transportation. Furthermore, the
fact that cars are heavily regulated means only that the authorities have an interest in
securing compliance with safety and traffic regulations and cannot support a wholesale
loss of privacy in the entire vehicle. Id. at 150-51 (Todd, J, dissenting) (discussing 3
Wayne R. LaFave, Search & Seizure § 7.2(b) (5th ed. 2019)). Justice Todd found those
[J-51-2020] - 23
criticisms “to have substantial merit” and criticized the contrary view as “disregard[ing] the
plain fact that today's automobile is not just used to transport persons, but, also, to store
and transport a myriad of their most private belongings.” Id. at 152. Vehicles contain a
variety of features that let users store items away from public view such as trunks, glove
boxes, and internal storage compartments. A vehicle is not just a method of
transportation, as drivers frequently take long drives and many Americans opt for driving
to work instead of taking public transportation precisely because of the privacy afforded
by vehicles. As Justice Todd summarized the point, a vehicle functions as a “home away
from home.” Id. at 152.
Further, Alexander argues that technological advances decrease the timeframe for
procuring a warrant. In Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court
rejected a bright-line rule permitting warrantless blood draws in DUI cases as a per se
exigency, with the high Court recognizing “technological developments that enable police
officers to secure warrants more quickly, and do so without undermining the neutral
magistrate judge's essential role as a check on police discretion, are relevant to an
assessment of exigency.” Id. at 155. Alexander submits that the same logic should apply
in the warrantless vehicular search context. See also Commonwealth v. Romero, 183
A.3d 364, 402 (Pa. 2018) (“It bears noting that Steagald [v. United States, 451 U.S. 204(1981)] was decided in 1981; since then, the pervasiveness and efficiency of
communication technology has grown exponentially.”). Also, the law permits stops for
the enforcement of vehicle code violations which are often a pretext for purposes other
than a desire to enforce the traffic laws. The United States Supreme Court is “unwilling
to entertain Fourth Amendment challenges based on the actual motivations of individual
[J-51-2020] - 24
officers,” Whren v. United States, 517 U.S. 806, 813 (1996), and thus, “outside the context
of inventory search or administrative inspection,” ulterior motives cannot invalidate a
vehicular stop. Id. at 812. Alexander cites statistical data recognized by other courts that
minority drivers are disproportionately targeted by pretextual stops. Thus, requiring a
detached magistrate to make the probable cause determination will generally safeguard
privacy rights and specifically deter the disproportionate impact of warrantless searches
on minority motorists. Addressing the issue of whether it is a greater or lesser intrusion
to subject citizens to lengthy detentions while awaiting a search warrant, Alexander
deems that a false dilemma. A citizen is free to put law enforcement to the test by
requiring a warrant, and if the citizen wishes to give up that right they can simply consent.
Finally, Alexander criticizes the Gary plurality for failing to discuss stare decisis
principles. For more than twenty years, this Court consistently indicated that Article I,
Section 8 is part of our constitutional jurisprudence and Gary did not provide sufficient
reasons to depart from those holdings.
The Commonwealth
The Commonwealth first argues that Alexander’s issue has been waived pursuant
to our recent decision in Commonwealth v. Bishop, 217 A.3d 833 (Pa. 2019), wherein this
Court held that a defendant waived a claim that the Pennsylvania Constitution offers
greater protection than the United States Constitution regarding the right against self-
incrimination. In litigating a suppression motion, Bishop failed to argue that the
protections provided by the constitutions differed, and this Court concluded that he waived
his claim by failing to develop it before the trial court. The Commonwealth argues that
the same result should obtain here because while Alexander referred to the Pennsylvania
[J-51-2020] - 25
Constitution in generic terms, the references “bore no meaningful connection to his
current claims.” Commonwealth’s Brief at 10. His actual argument was limited to a lack
of reasonable suspicion and/or probable cause “to detain, stop, frisk, search or question”
Alexander. Thus, according to the Commonwealth, Alexander challenged only the stop
and the lack of Miranda warnings, and not the application of Gary. The Commonwealth
acknowledges that Alexander cited a case from this Court holding that luggage removed
from a vehicle could not be searched without a warrant, but that case was based on the
Fourth Amendment, and, in any event, the federal case cited therein as support was itself
later overruled. The Commonwealth complains that the failure to apprise the government
of the nature of his suppression claim prevented the Commonwealth from developing an
evidentiary record to respond to the assertion that a search warrant could have easily
been sought through remote technology.8
As to the merits, the Commonwealth first emphasizes stare decisis and stresses
that this Court is not writing on a blank slate. Alexander’s arguments that this
Commonwealth should recognize greater protections under Edmunds were made by
Justice Todd in Gary and the Court rejected them then. As a result, the Gary result should
still control. “Stare decisis serves an important role by promoting the evenhanded,
8 We find that Alexander sufficiently preserved the issue. The motion to suppress used
a pre-printed check box form where he challenged, among other things, the failure to
obtain a warrant before the search. At the evidentiary hearing, counsel stated that the
motion was "based on the fact that the police lacked reasonable suspicion and probable
cause to detain, stop, frisk, search or question my client in anyway. This motion is based
on the United States Constitution, 4th, 5th and 14th Amendments and the broader
protections of Pennsylvania Constitution, Article One Section Eight.” N.T., 6/5/2017,
at 3 (emphasis added). While the actual argument to the court did not touch on an
argument that Gary should be overruled, counsel remarked at the end of the hearing,
“This vehicle -- they could have gotten a search warrant.” Id. at 22.
[J-51-2020] - 26
predictable, and consistent development of legal principles, fostering reliance on judicial
decisions, and contributing to the actual and perceived integrity of the judicial process.”
Commonwealth’s Brief at 15 (citation omitted). Acknowledging that stare decisis is not
an absolute rule, the Commonwealth asserts that none of the traditional reasons to revisit
precedent exist in this case. If anything, the Commonwealth believes that affirming Gary
is particularly appropriate because a bright-line rule produces predictable and consistent
outcomes. The decisions discussed in Gary illustrated that this Court failed to reach a
consensus on the law in this area. While those disagreements were due to “sincere
philosophical differences among members of this Court,” id. at 17, the law was in flux and
only a clear rule could promote stability. Furthermore, officers have since relied on the
bright-line rule announced in Gary and overruling it would “tend to breed cynicism and
create uncertainty as to whether this Court’s decisions can be relied upon to provide
lasting guidance.” Id. at 18. The Commonwealth argues that Alexander has presented
nothing in the six years since Gary that has changed, other than the membership of this
Court. The Commonwealth claims that the rule of law is threatened by decisions that
appear to be based only on personal views of its members and overruling Gary “would
ultimately detract from efforts to establish a stable and enduring body of state
constitutional law.” Id. at 23.
The Commonwealth adds its belief that even under pre-Gary law, Alexander would
not be entitled to relief because the probable cause to search arose unexpectedly due to
a chance encounter; Alexander was not alone; the passenger owned the vehicle; and the
incident occurred at 2:30 a.m. To this end, the Commonwealth adds that Justice Todd’s
[J-51-2020] - 27
dissent criticized cases that were applying the federal rule in circumstances other than
vehicular stops on a roadway. Commonwealth’s Brief at 21, n.11.
In the event stare decisis is not sufficient reason to refuse Alexander’s request, the
Commonwealth disagrees with Alexander’s view of the four Edmunds factors. Just as
Alexander relies on Justice Todd’s analysis of Edmunds, the Commonwealth points to
the Gary plurality’s analysis. The government argues that the first factor, constitutional
text, does not weigh in Alexander’s favor because he fails to explain how the term
“possessions” meaningfully differs from “effects.” More importantly, Alexander’s
argument that Article I, Section 8 provides greater protections on the basis of
constitutional norms, i.e. a preference for a warrant, is unconvincing because the warrant
preference does not answer the question of whether an exception should apply. Thus,
nothing in the text of Article I, Section 8 suggests it is any different than the Fourth
Amendment.
Turning to the second factor and the history of this Court’s interpretation, the
Commonwealth concedes that Article I, Section 8 is occasionally interpreted in a broader
manner. But this Court has frequently rejected greater protection, too. See, e.g.,
Commonwealth v. Turpin, 216 A.3d 1055, 1066-69 (Pa. 2019) (rejecting claim that
separate warrant was necessary under Article I, Section 8 to search private bedroom of
third party located within shared multi-bedroom residence); Commonwealth v. Duncan,
817 A.2d 455, 465 (Pa. 2003) (rejecting claim that Article I, Section 8 requires warrant to
obtain name and address information associated with ATM card).
Third, the Commonwealth points out that post-Gary cases have confirmed that the
majority of states apply federal law. The Iowa Supreme Court in State v. Storm, 898
[J-51-2020] - 28
N.W.2d 140 (Ia. 2017), surveyed the country and found five states, apart from
Pennsylvania, that previously rejected the automobile exception but now follow it.
Commonwealth’s Brief at 29-30.
The final factor, policy justifications, should, according to the Commonwealth,
balance in its favor because no matter what our Constitution demands, the federal
exception would remain the law of the land. The Commonwealth believes that this would
encourage forum shopping in that more prosecutions will occur in federal court where the
federal rules would apply. The Commonwealth also emphasizes the high degree of
factual pattern variance involving vehicular cases, which can involve, inter alia, various
persons coming to the scene and potentially removing evidence; multiple passengers;
and stops at times of the day when a magistrate may not be readily available. It also
argues that the status of automobiles has not changed materially over the years since
Gary, and people have less of an expectation of privacy in their vehicles versus other
spaces like the home. And it points out that lengthy seizures will occur if police are
required to obtain warrants in the absence of exigency, which is arguably a greater
intrusion than simply searching the vehicle on scene.
The Commonwealth also disputes that search warrants are easily obtainable
through technological means. Because Pennsylvania does not recognize the good faith
exception to the exclusionary rule, the Commonwealth fears that errors in preparing
warrants via remote technology will lead to unwarranted suppressions. Relying on the
policy that warrant applications in Philadelphia must be approved by the district attorney’s
office before presentation to the issuing authority, the Commonwealth argues that the
procedure poses a challenge in a case like this, where the stop occurred at 2:30 a.m.
[J-51-2020] - 29
IV. Analysis
Turning to the core argument raised by Alexander that Gary is inconsistent with
Article I, Section 8, we address first the Commonwealth’s argument that Gary should not
be revisited under stare decisis principles.
1.
Stare decisis is “a principle as old as the common law itself.” Morrison Informatics,
Inc. v. Members 1st Fed. Credit Union, 139 A.3d 1241, 1249 (Pa. 2016) (Wecht, J.,
concurring). The phrase “derives from the Latin maxim ‘stare decisis et non quieta
movere,’ which means to stand by the thing decided and not disturb the calm.” Ramos v.
Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in
part). “Without stare decisis, there would be no stability in our system of jurisprudence.”
Flagiello v. Pennsylvania Hosp., 208 A.2d 193, 205 (Pa. 1965). It is therefore preferable
“for the sake of certainty,” Commonwealth v. Tilghman, 673 A.2d 898, 903 n.9 (Pa. 1996),
to follow even questionable decisions because stare decisis “promotes the evenhanded,
predictable, and consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citation omitted). As the United States
Supreme Court recently stated, “To reverse a decision, we demand a special justification,
over and above the belief that the precedent was wrongly decided.” Allen v. Cooper, ___
U.S. ___, 2020 WL 1325815, at *6 (U.S. Mar. 23, 2020) (quotation marks and citation
omitted). The Commonwealth believes that the only justification offered here for revisiting
[J-51-2020] - 30
Gary is a change in court composition and warns that overruling Gary threatens judicial
integrity.9
Of course, as with virtually all legal rules, there are exceptions. No one would
seriously maintain that stare decisis demands absolute fidelity to what came before. As
Justice Kavanaugh remarked in Ramos, “Nobody on the Court believes in absolute stare
decisis.” Ramos, 140 S. Ct. at 1411 (2020) (Kavanaugh, J., concurring in part) (quoting
Baude, Precedent and Discretion, 2020 S. Ct. Rev. 1, 4 (forthcoming)). In fact, precedent
may be so questionable as to warrant overruling even when the parties have not raised
the point. Freed v. Geisinger Med. Ctr., 5 A.3d 212, 215 (Pa. 2010) (“We begin by noting
there have been numerous occasions in which this Court has sua sponte reconsidered
and overruled prior precedent.”) (collecting cases). Ultimately, “whether it is appropriate
for this Court to overrule prior precedent depends on a number of factors, all of which are
implicated under the doctrine of stare decisis.” Id. at 216.
The Commonwealth does not list these factors, but instead points to situations in
which overruling precedent would be “manifestly appropriate, such as where prior
decisions have proved unworkable, engendered widespread confusion, or been
9 The Commonwealth’s argument is both myopic and cynical. In 2007, a majority of this
Court held to the view that Article I, Section 8 required probable cause and exigent
circumstances to support a search of an automobile. See Hernandez and McCree. The
composition of the Court changed between then and 2014 when Gary was decided.
Following the Commonwealth’s thinking, the abandonment of earlier Article I, Section 8
jurisprudence was solely a result of Justice McCaffery’s addition to the Court and the
departure of former Chief Justice Cappy, among others. Of course, the extensive
analysis of the Gary lead opinion should not be denigrated by suggesting that it was solely
a result of “a change in the composition of the Court.” The attack by the Commonwealth
in the context of this appeal is equally misplaced.
[J-51-2020] - 31
undermined by subsequent changes in society.” Commonwealth’s Brief at 16. In its view,
none of those apply to Gary.
Our inquiry, however, is not so limited. The high Court has “identified several
factors to consider in deciding whether to overrule a past decision, including ‘the quality
of [its] reasoning, the workability of the rule it established, its consistency with other
related decisions, . . . and reliance on the decision.” Knick v. Twp. of Scott, Pennsylvania,
___ U.S. ___, 139 S. Ct. 2162, 2177–78 (2019) (quoting Janus v. State, County, and
Municipal Employees, 585 U.S. ––––, 138 S.Ct. 2448, 2478 (2018)) (bracketing and
ellipsis in original). The age of the challenged decision is also a relevant factor. “[T]he
strength of the case for adhering to such decisions grows in proportion to their ‘antiquity.’”
Gamble v. United States, ___ U.S. ___, 139 S. Ct. 1960, 1969 (2019) (quoting Montejo
v. Louisiana, 556 U.S. 778, 792 (2009)). Cases with a long lineage tend to have multiple
precedents to overcome, id. (“Gamble’s historical arguments must overcome numerous
‘major decisions of this Court’ spanning 170 years,”), which is not an issue in Gary. In
fact, as set forth at length supra, Gary itself had numerous precedents to overcome.
Additionally, Gary is a constitutional case, and stare decisis “is at its weakest when
we interpret the Constitution because our interpretation can be altered only by
constitutional amendment or by overruling our prior decisions.” Agostini v. Felton, 521
U.S. 203, 235 (1997) (citations omitted).
2.
We begin our analysis by observing again that Gary was not a majority decision
but rather an opinion announcing the judgment of the court See 210 Pa. Code §
63.4(B)(3) (“An opinion shall be designated as the ‘Opinion Announcing the Judgment of
[J-51-2020] - 32
the Court’ when it reflects only the mandate, and not the rationale, of a majority of
Justices.”). Now-Chief Justice Saylor’s concurring opinion provided the crucial fourth vote
that allowed Gary to constitute a binding holding as opposed to establishing only a case-
specific result limited to Gary alone. The United States Supreme Court announced in
Marks v. United States, 430 U.S. 188 (1977), that when it “decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds . . . .” Id. at 193 (quotation marks and citation omitted). We
apply the Marks rule. See Commonwealth v. McClelland, 233 A.3d 717, 731 (Pa. 2020)
(applying Marks).
The rationale explaining Gary’s result from the perspective of three Justices was
clear: Article I, Section 8 offers no greater protection than the Fourth Amendment in this
area. Therefore, adopting the United States Supreme Court’s case law posed no obstacle
because the provisions were interpreted to be coterminous. Conversely, Justices Todd
and Baer dissented from that conclusion. The rationale for the Chief Justice’s opinion
was not based on an analysis of Article I, Section 8. We reproduce the opinion in its
entirety:
As reflected in the lead opinion, this Court has obviously had
difficulty for quite some time in managing the appropriate
contours of the automobile exception to the warrant
requirement. Although I have some reservations, for the sake
of certainty and consistency, I join the lead Justices in
adopting the federal automobile exception.
I do wish to observe, however, that I find inconsistency in the
courts' rejection of bright-line rules restraining law
enforcement as a means of protecting individual rights,1 while
simultaneously embracing such rules when they facilitate law
enforcement, see OAJC, at 124, 136–37. For my own part, I
[J-51-2020] - 33
believe there would be benefit in maintaining some clear and
appropriate boundaries operating in both directions. Accord
Perez, 577 Pa. at 381–82, 845 A.2d at 792 (Saylor, J.,
concurring and dissenting) (concurring in the abandonment of
one such bright-line rule protective of defendants' rights only
because it had been consistently undermined by exceptions).
91 A.3d at 138–39 (Saylor, J., concurring).
Then-Justice Saylor’s opinion therefore did not address the competing views of
whether the federal automobile exception was compatible with Article I, Section 8. We
believe that the concurring opinion, while certainly reflecting a carefully considered view
based on this Court’s difficulties in applying the exception does nothing more than
establish the narrowest rationale for the result in Gary: the bright-line federal exception
provides certainty and consistency in application.10
10 Justices Dougherty and Mundy both object to this conclusion. Justice Mundy maintains
that “then-Justice Saylor’s concurrence espoused the prevailing viewpoint offered by the
three other Justices.” Dissenting Op. at 2 (Mundy, J., dissenting). Justice Dougherty
agrees. Dissenting Op. at 3 n.1 (Dougherty, J.). Justice Dougherty observes that the
Chief Justice must have fully joined the three-Justice opinion because to say otherwise
represents a conclusion that the Chief Justice joined an opinion “even though he actually
believed it violated our state charter[.]” Id. at 3 n.1. None of this overcomes Gary’s
designation as an Opinion Announcing the Judgment of the Court and an examination of
its votes, which readily dispels the notion that then-Justice Saylor somehow joined the
three-Justice plurality’s analysis of the Article I, Section 8 issue. See Gary, 91 A.3d at
138 (“Chief Justice CASTILLE and Justice EAKIN join the opinion.”).
There is no doubt that four Justices in Gary shared the view that this Court should adopt
the federal automobile exception. But there is also no doubt that the Court did not reach
a majority consensus justifying that result. We reject the notion that the views of three
Justices can be given stare decisis effect or that we should enshrine an interpretation of
Article I, Section 8 that a majority of the Court, both now and before Gary was decided,
has rejected and one which even Justice Dougherty cannot champion. See Dissenting
Op. at 3 (Dougherty, J.). See also Concurring Op. at 2 (Baer, J.) (“In my view, it would
indeed be ironic to conclude that stare decisis demands adherence to a decision that is
premised upon a breach of that doctrine.”)
Our learned colleagues apparently view the “Opinion Announcing the Judgment of the
Court” designation as an administrative oversight, unnoticed by the Court and then-
[J-51-2020] - 34
The Commonwealth emphasizes the “certainty and consistency” that resulted from
the concurring opinion, informing the Court at length that Gary produced a workable rule
not only for the courts but the police, who “have systematically relied on Gary in
determining when it is necessary to secure a warrant.” Commonwealth’s Brief at 18. The
Commonwealth attributes the difficulty in applying something other than a bright-line rule
to an “inability to anticipate the endless variety of circumstances in which probable cause
to search an automobile may arise,” which produced unpredictable applications of
whether a given case qualified as a true exigency.
We disagree with the attempt to insulate Gary from review solely because it
produced a workable outcome. The Commonwealth sounds the alarm that “overruling
Gary would have a broad impact. It would impair the ability to enforce the law without
any proportionate corresponding benefit.” Commonwealth’s Brief at 47-48 (footnote
omitted). This presumes that we are free to ignore the Pennsylvania Constitution simply
because it makes law enforcement more difficult, or, worse, that we are to determine the
law based on what we think is good for law and order in society. We are not a policy
branch, and we cannot ignore constitutional commands even if they make the work of
police or prosecutors harder. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 325
(2009) (“The Confrontation Clause may make the prosecution of criminals more
burdensome, but that is equally true of the right to trial by jury and the privilege against
Justice Saylor. If our fidelity to the votes and insistence that the phrase “Opinion
Announcing the Judgment of the Court” does not mean the same thing as an “Opinion”
constitutes a “hair-splitting analysis,” Dissenting Op. at 2 (Mundy, J.), we embrace the
criticism.
[J-51-2020] - 35
self-incrimination. The Confrontation Clause—like those other constitutional provisions—
is binding, and we may not disregard it at our convenience.”).
It is undeniable that Gary did not produce a majority holding on what our
constitution means. “When considering whether to reexamine a prior erroneous holding,
we must balance the importance of having constitutional questions decided against the
importance of having them decided right.” Citizens United v. Fed. Election Comm'n, 558
U.S. 310, 378 (2010) (Roberts, C.J., concurring). The Commonwealth asks us to
enshrine a precedent that simply did not decide the Article I, Section 8 question at all. To
modify Chief Justice Roberts’ observation, there is surely an importance of having
constitutional questions actually decided. The Commonwealth maintains that respect for
the law will be threatened if Gary is overruled, but we think that the graver danger is
permitting three Justices’ views of Article I, Section 8 to be given the same precedential
weight as a clear majority simply because the opinion gained a fourth vote that did not
address the constitutional issue raised by Alexander in this case. Gary came last but that
is no reason to give it the last word. “[S]tare decisis is a principle of policy and not a
mechanical formula of adherence to the latest decision, however recent and
questionable.” Helvering v. Hallock, 309 U.S. 106, 119 (1940).
Gary is questionable precisely because it did not decide the Article I, Section 8
question. The role of this Court is to interpret the Constitution and to say what it means.
Gary did not do so. The fact that it made things less difficult for law enforcement is
irrelevant. In Arizona v. Gant, 556 U.S. 332 (2009), the United States Supreme Court
examined the State’s argument that Belton v. New York, 453 U.S. 454 (1981), announced
a bright-line rule regarding a police officer’s authority to search the interior of a vehicle as
[J-51-2020] - 36
a search incident to arrest, per the search incident to arrest rationale set forth in Chimel
v. California, 395 U.S. 752 (1969).11 Those searches were authorized generally on the
grounds that an arrestee might gain access to the vehicle and destroy evidence or obtain
a weapon. The argument that Belton established a bright-line rule rested on the notion
that such a rule was needed to protect officer safety and provide a workable rule. Of
course, as with this Court’s experience with the limited automobile exception, the
justifications animating that rule could not plausibly be said to apply to many situations in
which courts interpreted Belton to authorize the search. Gant was such a case; the
arrestee was handcuffed and locked in the patrol car. The Gant Court rejected application
of Belton, stating: “To read Belton as authorizing a vehicle search incident to every recent
occupant's arrest would thus untether the rule from the justifications underlying the Chimel
exception.” 556 U.S. at 343. Addressing stare decisis concerns and the need for a
workable rule, the Court responded:
Although it appears that the State's reading of Belton has
been widely taught in police academies and that law
enforcement officers have relied on the rule in conducting
vehicle searches during the past 28 years, many of these
searches were not justified by the reasons underlying the
Chimel exception. Countless individuals guilty of nothing more
serious than a traffic violation have had their constitutional
right to the security of their private effects violated as a result.
The fact that the law enforcement community may view the
State's version of the Belton rule as an entitlement does not
establish the sort of reliance interest that could outweigh the
countervailing interest that all individuals share in having their
constitutional rights fully protected. If it is clear that a
practice is unlawful, individuals' interest in its
discontinuance clearly outweighs any law enforcement
‘entitlement’ to its persistence.
11 This Court in White rejected Belton as inconsistent with Article I, Section 8.
[J-51-2020] - 37
Id. at 349 (emphasis added, footnotes omitted). Gary did not produce a majority as to
whether the practice of warrantless searches based on probable cause alone is unlawful,
and the Commonwealth is clearly not entitled to the persistence of an illegal practice.
Thus, this Court is obligated to answer the question that Gary left open.
3.
The foregoing would constitute a sufficient reason to revisit Gary, but there are
additional justifications. Gary itself served to effectively overturn decades of cases
decided by majorities which held that Article I, Section 8 does in fact differ from federal
law. True, the cases could not agree on how those differences applied. The plurality
Justices clearly believed that the post-1995 departures from federal law starting with
White rested on unsupported and inadequate foundations. But it bears mentioning again
as demonstrated in the prior discussion of our pre-Gary jurisprudence that this was hardly
a novel criticism. The charge that departures from federal law were not justified was
leveled from inception. Notwithstanding, those precedents themselves became part of
our body of law over the ensuing decades and generated their own reliance interests, and
neither the Commonwealth nor the Gary plurality explain why those decisions, even if
wrongly decided, did not warrant the deference that the Commonwealth now demands of
Gary.
And while the Commonwealth is correct that the Gary plurality could have accepted
Justice Todd’s cogent analysis of the Edmunds factors, the decisions criticized by Gary
likewise presented many opportunities to consider all the criticisms lodged by the Gary
plurality. The Courts issuing the precedents that Gary limited were obviously aware of
the argument that the Article I, Section 8 analysis was not adequately supported given
[J-51-2020] - 38
that concurring or dissenting opinions in those same cases raised that very point. See
White, 669 A.2d at 903-04 (Montemuro, J., concurring) (“In the instant case, the Majority
has failed to employ the Edmunds analysis in deciding that Article I, Section 8 of the
Pennsylvania Constitution provides more protections than the Fourth Amendment of the
United States Constitution . . . .”); id. at 910 (Castille, J., dissenting) (“I agree with Mr.
Justice Montemuro that in providing Pennsylvania citizens broader protections under the
Pennsylvania Constitution than are provided under analogous provisions of the federal
constitution, as the majority purports to do, the four-prong test set forth by this Court in
[Edmunds] should be applied.”); Luv, 735 A.2d at 95 (Castille, J. concurring) (“I would
further note my belief that the majority continues to construe too narrowly the automobile
exception to the warrant requirements. In my dissent in White, I proposed the adoption
of a bright line rule . . . .”).
Thus, White and its progeny created its own reliance interests. Until Gary was
issued, a majority of this Court never suggested that Article I, Section 8 is compatible with
the United States Supreme Court’s bright-line rule for determining the lawfulness of a
warrantless automobile search. Nor has Gary become entrenched or adopted by later
majorities of this Court. Only five decisions from this Court have cited Gary, three of
which involved citing Gary for propositions of law other than the one at issue here.
Commonwealth v. Livingstone, 174 A.3d 609, 618 (Pa. 2017) (quoting Gary’s recitation
of the standard of review of claims regarding denial of a suppression motion);
Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (same); Commonwealth v. Jacoby,
170 A.3d 1065, 1081 (Pa. 2017) (citing Gary for general discussion of when search
warrants may issue). The remaining two cases likewise did not demonstrate any
[J-51-2020] - 39
additional affirmation of Gary. In Commonwealth v. Valdivia, 195 A.3d 855 (Pa. 2018),
we noted that the Commonwealth did not suggest that the police officers had probable
cause to suspect the vehicle contained drugs and stated “there is no cause for discussion
of the automobile exception to the warrant requirement as an alternative basis to support
the search.” Id. at 865 n.11 (citing Gary for its adoption of the federal automobile
exception). Lastly, in Commonwealth v. Loughnane, 173 A.3d 733, 735 n. 1 (Pa. 2017),
a case decided on other grounds, we reviewed the Superior Court’s application of Gary
and the federal exception. In so doing, we questioned the precedential value of Gary. Id.at 735 n.1 (“The lead opinion in Gary was designated as an ‘Opinion Announcing the
Judgment of the Court’ . . . because while a majority of the Court supported the adoption
of the federal automobile exception, only a plurality joined in the rationale behind it.”).
In other words, the idea that White and its progeny failed to adequately address
Article I, Section 8 was not a new theory that became clear only with the benefit of time
and further development of the law, which is, among others, a reason to overturn
precedent. United States v. Gaudin, 515 U.S. 506, 521 (1995) (“And we think stare
decisis cannot possibly be controlling when, in addition to [other] factors, the decision in
question has been proved manifestly erroneous, and its underpinnings eroded, by
subsequent decisions of this Court.”). The Gary plurality’s analysis did not identify any
manifest error or erosion of the challenged precedents. All the Gary plurality established
was a fervent belief that the criticisms of White should have carried the day.
4.
Taking into account all of the foregoing factors—the recency of Gary, the lack of a
controlling rationale that enjoyed majority support, the absence of reliance interests, and
[J-51-2020] - 40
the importance of having constitutional questions decided—stare decisis does not
demand adhering to the views of three Justices on the critical question of what the
Pennsylvania Constitution means. Nor does it require giving conclusive effect to the
fourth vote, which decided only that the time had come to follow the federal model due to
perceived difficulties in deciding the contours of Article I, Section 8 as applied to
automobile searches.
The Gary result is impossible to uphold if Article I, Section 8 and its unshakable
link to privacy requires greater protections when an automobile search is at issue. The
federal bright-line rule must be consistent with Pennsylvania norms and standards and
must account for our constitutional text and precedents interpreting it. It does not serve
to simply point to the federal model, which weighs, as we shall explain, the cost and
benefits of police action versus citizens’ rights differently.
V. Edmunds and Article I, Section 8
Normally, the party asking to overturn a precedent will invariably win if the case is
overruled. Gary, as explained at length supra, did not actually decide the impact of Article
I, Section 8 on automobile searches. Overruling the result in Gary simply means that this
Court will decide what the Pennsylvania Constitution requires in this domain.12
12 Justice Dougherty’s Dissenting Opinion argues that we do not offer any “meaningful
weighing of the traditional factors this Court should consider when making the difficult
decision whether to cast aside one of our precedents.” Dissenting Op. at 5 (Dougherty,
J.). If the preceding pages do not qualify as meaningful, then any response to our learned
colleague will surely be deemed equally unsatisfactory. Nevertheless, we observe that
Justice Dougherty appears to find our analysis wanting largely because we do not accept
the fiction that now-Chief Justice Saylor’s critical fourth vote, concurring in the result in
Gary, was really no different than a full joinder. See supra n.10. Had this Court definitively
settled whether Article I, Section 8 is compatible with the federal automobile exception,
Justice Dougherty’s Dissent aptly explains why that hypothetical decision, even if we
[J-51-2020] - 41
We conclude that Justice Todd’s Edmunds analysis thoroughly and convincingly
established the heightened protocols of Article I, Section 8 and see no need to tread that
same ground. The scholarly analysis thoroughly discussed the four Edmunds factors,
and we adopt Justice Todd’s compelling analysis as our own. We briefly address some
additional points.
First, we are highly persuaded by Justice Todd’s analysis of the relevant textual
provision. The three-Justice opinion in Gary concluded without elaboration that “Article I,
Section 8 . . . is very similar to the text of the Fourth Amendment.” Gary, 91 A.3d at 124(citations omitted). The opinion then observed that “there is nothing in the text of Article
I, Section 8 to suggest that it confers greater protection than does the Fourth Amendment
with regard to a warrantless search of a motor vehicle.” Id.The lead opinion in Gary on this point paints too broadly because it does not
recognize that possessory and privacy interests can be different with respect to the
vehicle itself versus items within that vehicle. See e.g. 3 Wayne R. LaFave, Search &
Seizure § 7.2(a) (5th ed. 2019) (“[T]wo privacy interests are present in a Chambers-type
situation: (i) the possessory interest in maintaining control over the vehicle; and (ii) the
secrecy interest with respect to the contents of the car.”). The Gary three-Justice opinion
overlooked that point by declaring that the Fourth Amendment and Article I, Section 8 are
textually similar. Justice Todd aptly explained why that is incorrect.
The plurality finds “nothing in the text of Article I, Section 8 to
suggest that it confers greater protection than does the Fourth
Amendment with regard to a warrantless search of a motor
believed it to be wrong, should remain on the books. Relatedly, while Justice Dougherty
notes that in this case, Chief Justice Saylor opposes overruling Gary, Dissenting Op. at
3 (Dougherty, J.), we note that the Chief Justice does not take umbrage with our stare
decisis analysis.
[J-51-2020] - 42
vehicle.” I respectfully disagree. Unlike the Fourth
Amendment, Article I, Section 8 uses the term “possessions,”
which our Court has previously interpreted to mean “intimate
things about one's person,” Commonwealth v. Russo, 594 Pa.
119, 934 A.2d 1199, 1214–15 (2007), and also specifies that
no warrant to search “any place,” or to seize “any ... things
shall issue without ... probable cause.” Pa. Const. art. I, § 8
(emphasis added). Inasmuch as these expansive terms are
absent from the Fourth Amendment, this difference in
language suggests that the warrant requirement of Article I,
Section 8 was intended to protect an individual's privacy
interest in all of his or her possessions or things in any place
they may be, which would include, by necessity, when they
are located inside of an automobile. I would, therefore,
conclude that these textual differences support an
interpretation of Article I, Section 8 broader than its federal
counterpart in regard to the expectation of privacy owners and
occupants of automobiles enjoy with respect to their personal
possessions transported therein.
Id. at 143 (internal citation omitted).
We also add that Edmunds itself, in rejecting the “good faith” exception to the
exclusionary rule, calibrated the interests of society in securing criminal convictions and
law enforcement needs versus privacy protections quite differently than does the United
States Supreme Court. The basis for that different balancing, i.e. Article I, Section 8’s
link to privacy protections as advanced by the warrant requirement, cannot be ignored in
this context inasmuch as weighing the same interests tends to dominate debates
surrounding the wisdom of following the federal automobile exceptions. Addressing the
then-forthcoming decision in United States v. Ross, 456 U.S. 798 (1982), a commentator
observed:
The decision in Ross will be shaped by the struggle between
two philosophies which have heretofore mustered almost
equal support within the Court. One view proposes that
exceptions to the warrant clause be narrowly drawn to
emphasize the judicial preference for a warrant. The opposing
[J-51-2020] - 43
rationale supports broadening the exceptions to the warrant
clause to promote effective law enforcement.
3 Wayne R. LaFave, Search & Seizure § 7.2(d) (5th ed. 2019) (quoting Katz, Automobile
Searches and Diminished Expectations in the Warrant Clause, 19 Am.Crim.L.Rev. 557,
601–02 (1982)).
That neatly encapsulates the debate between the Commonwealth and Alexander.
Likewise, promoting effective law enforcement is the driving force explaining the United
States Supreme Court’s applications of the exclusionary rule. “[T]he deterrent effect of
suppression must be substantial and outweigh any harm to the justice system . . . the
criminal should not ‘go free because the constable has blundered.’ ” Herring, 555 U.S. at
147-48 (quotation marks and citation omitted). In Edmunds, we “consider[ed] the
appropriateness of a ‘good faith’ exception to the exclusionary rule in the Pennsylvania
constitutional scheme.” Edmunds, 586 A.2d at 896. Edmunds rejected that exception as
inconsistent with Article I, Section 8, stating that “[t]he history of Article I, Section 8 . . .
indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite
distinct from the purpose underlying the exclusionary rule under the 4th Amendment, as
articulated by the majority in Leon.” Id. at 897. “[B]eginning in 1973 . . . this Court began
to forge its own path under Article I, Section 8 of the Pennsylvania Constitution, declaring
with increasing frequency that Article I, Section 8 of the Pennsylvania Constitution
embodied a strong notion of privacy, notwithstanding federal cases to the contrary.” Id.
at 898. Deterrence is not the focus in determining remedies for violations of Article I,
Section 8. “Citizens in this Commonwealth possess such rights, even where a police
officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or
circumvents the strictures of probable cause.” Id. at 899.
[J-51-2020] - 44
The Gary lead opinion, as well as the minority criticisms of White and its progeny
over the years, were premised on concerns for effective law enforcement and the specter
of unwarranted suppressions stemming from reasonable police conduct employed in
sometimes tense and unpredictable situations. Justice Castille’s concurrence in Luv
urged adoption of a bright-line rule “to prevent police officers from having to make a choice
whether, on the one hand, to take the time to obtain a warrant and thereby risk flight of
the automobile or, on the other hand, not to obtain a warrant and risk suppression of the
evidence[.]” Luv, 735 A.2d at 95. His Perry concurrence argued that the exception as
set forth in White “is unjustifiably hostile to perfectly reasonable police conduct.” Perry,
798 A.2d at 708 (Castille, J., concurring). The Gary lead opinion likewise asserted that
the bright-line rule was needed to ensure uniformity, in large part because “the
determination of exigency—or lack thereof—can turn on small facts in the midst of a
complex, volatile, fast-moving, stressful, and potentially threatening situation in the field.”
Gary, 91 A.3d at 134.
We think that Edmunds itself mandates that we cannot reflexively cede our
citizens’ constitutional rights to privacy to the needs of law enforcement and the concern
that evidence may be suppressed. Contrary to the view that suppressing evidence
represents an implicit hostility to police conduct, this Court in Edmunds viewed the matter
quite differently:
We have no reason to believe that police officers or district
justices in the Commonwealth of Pennsylvania do not engage
in “good faith” in carrying out their duties. What is significant,
however, is that our Constitution has historically been
interpreted to incorporate a strong right of privacy, and an
equally strong adherence to the requirement of probable
cause under Article 1, Section 8. Citizens in this
Commonwealth possess such rights, even where a police
[J-51-2020] - 45
officer in “good faith” carrying out his or her duties
inadvertently invades the privacy or circumvents the strictures
of probable cause. To adopt a “good faith” exception to the
exclusionary rule, we believe, would virtually emasculate
those clear safeguards which have been carefully developed
under the Pennsylvania Constitution over the past 200 years.
Edmunds, 586 A.2d at 899.
Similarly, a finding in a case that an officer’s warrantless search was not justified
by an exigency does not reflect hostility to his or her actions. It means only that our
constitution places greater emphasis on the violations of privacy occasioned by an
unreasonable search. The question of whether the federal automobile exception “virtually
emasculate[s] those clear safeguards” was not addressed by Gary. If the United States
Constitution tips the scale towards law enforcement needs in analyzing Fourth
Amendment questions, our own charter does not when addressing Article I, Section 8.
See White, 669 A.2d at 902 (“[T]his court has increasingly emphasized the privacy
interests inherent in Article I, Section 8 of the Pennsylvania Constitution. By contrast, the
United States Supreme Court has deemphasized the privacy interests inherent in the
Fourth Amendment.”) (citation omitted). The Gary approach is antithetical to Article I,
Section 8 because it permits warrantless searches even in scenarios where it is beyond
question that police officers could have sought a warrant before the vehicle is searched.
Article I, Section 8 requires that we ask whether the violation of privacy interests inherent
in allowing widespread warrantless searches is compatible with the Pennsylvania
Constitution. We think it is not. Due to the rich history of our charter protecting privacy
as established in Edmunds and explained by Justice Todd in Gary, our constitution
prioritizes the protection of privacy rights caused by the unreasonable search above the
need to present incriminating evidence in court and to assist law enforcement efforts.
[J-51-2020] - 46
Additionally, the Gary plurality was troubled by inconsistent applications and
thought that the bright-line rule was warranted to encourage uniformity. Respectfully, we
think that its case for inconsistent applications is overstated, with the plurality succumbing
to a selection bias on two distinct levels. First, suppression cases only arise when
incriminating evidence is found. By definition, courts will rarely encounter the countless
number of cases in which an officer unjustifiably concludes that probable case was
present, but the search turns up nothing. To the extent that overruling Gary will
encourage police officers to obtain a warrant whenever practicable, that outcome adheres
to what we said in Edmunds regarding the preference for a warrant.
Second, the host of citations to cases from this Court grappling with discrete
applications of our automobile exception jurisprudence is somewhat misleading. Absent
a death penalty case, every automobile exception case decided by this Court will involve
our exercise of discretionary review. It would be surprising if the cases we selected for
review did not involve difficult applications. There is little reason to think that the bulk of
the cases involving automobile searches decided by the trial court or Superior Court
involved the same degree of difficulty. And, of course, we retain the option to grant
discretionary review and offer continued guidance to the bench and bar consistent with
what Article I, Section 8 demands.
Finally, overruling Gary corrects the anomaly that the protections of Article I,
Section 8 of our constitution and the privacy interests it envelops evaporate when a citizen
enters her automobile.
[J-51-2020] - 47
VI. Response to the Chief Justice’s Dissent
In dissent, Chief Justice Saylor disagrees with our Edmunds analysis by focusing
on the textual similarities between Article I, Section 8 and the Fourth Amendment. The
Dissent applies an originalist approach, arguing that the similarities reflect no difference
regarding “the protections intended by the respective framers[.]” Dissenting Op. at 2.
Respectfully, the Dissent’s comparison of the relevant textual provisions gives short shrift
to this Court’s pronouncement that Article I, Section 8 “is meant to embody a strong notion
of privacy, carefully safeguarded in this Commonwealth for the past two centuries.”
Edmunds, 586 A.2d at 897.
Gary, like the Dissent, broadly acknowledged this aspect of our jurisprudence but
diminished its significance by citing “this Court’s adoption of the federal Fourth
Amendment test to determine the scope of protection afforded under Article I, Section
8[.]” Gary, 91 A.3d at 127 (quoting Commonwealth v. Russo, 934 A.2d 1199, 1211 (Pa.
2007) (citations omitted)). That test requires a person to demonstrate “(1) a subjective
expectation of privacy; and (2) that the expectation is one that society is prepared to
recognize as reasonable and legitimate.” Id.But there is no inconsistency in applying the foregoing test as a guiding principle
while incorporating Pennsylvania-specific considerations regarding enhanced privacy
interests. See White, 669 A.2d at 902 (“[T]his court has increasingly emphasized the
privacy interests inherent in Article I, Section 8 of the Pennsylvania Constitution. By
contrast, the United States Supreme Court has deemphasized the privacy interests
inherent in the Fourth Amendment.”) (citation omitted). As one example of an enhanced
privacy right, in Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979), we held that a
[J-51-2020] - 48
depositor has standing to challenge the seizure of his or her bank records, rejecting the
United States Supreme Court’s decision in United States v. Miller, 425 U.S. 435 (1976).
We elected to follow a California decision interpreting the California Constitution, which
specifically includes a right to privacy. The Commonwealth argued that the California
decision should not be followed “since the Pennsylvania Constitution contains no explicit
provision pertaining to the right to privacy[.]” Id. at 1291. We disagreed, noting that Article
I, Section 8 “is tied into the implicit right to privacy in this Commonwealth.” Id. (citing
Griswold v. Connecticut, 381 U.S. 479 (1965) and In re B, 394 A.2d 419, 425 (Pa. 1978)).
Thus, the principles applied by the United States Supreme Court to define the
expectations that society is prepared to recognize as reasonable under the Fourth
Amendment are not the same as the ones we apply to determine what our constitution
would recognize as reasonable and legitimate.
Commonwealth v. Shaw, 770 A.2d 295, 296 (Pa. 2001), further demonstrates the
point that, contrary to the Gary plurality’s assertions, the scope of protection under Article
I, Section 8 is distinct for reasons that extend beyond the text of Article I, Section 8. In
Shaw, we held that Article I, Section 8 protects the results of a blood alcohol test
performed by a hospital for medical purposes where the Fourth Amendment does not.
This conclusion was based on privacy considerations. Significantly, we did not rely solely
on the text of Article I, Section 8 in reaching that conclusion. We looked to precedents
applying Article I, Section 1, which states: “All men are born equally free and independent,
and have certain inherent and indefeasible rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing and protecting property and reputation,
and of pursuing their own happiness.” Pa. Const. art. I, § 1. To establish that “[t]he right
[J-51-2020] - 49
to privacy extends to medical records of patients,” 770 A.2d at 299, we cited In re June
1979 Allegheny Cty. Investigating Grand Jury, 415 A.2d 73 (Pa. 1980), and Denoncourt
v. Com., State Ethics Comm'n, 470 A.2d 945 (Pa. 1983). The In re June 1979 Court
stated, “Clearly, the privacy interest of the patients which is implicated under the instant
set of facts is the interest in avoiding disclosure of personal matters. This privacy interest
finds explicit protection in the Pennsylvania Constitution, Art. 1, § 1[.]” 415 A.2d at 77.
And the citation to Denoncourt was to the portion of the opinion wherein a plurality stated,
“This Court has recognized the existence of a constitutionally guaranteed right of privacy
based on Article 1, § 1 of the Pennsylvania Constitution. . . .” Denoncourt, 470 A.2d at947–48 (Flaherty, J., joined by McDermott and Zappala, JJ.).13 Thus, our cases hold that
the privacy expectations involved in addressing an Article I, Section 8 claim extend
beyond textual similarities (or dissimilarities, as the case may be). We must consider our
charter as a whole in terms of establishing a set of normative values that limits the
government’s authority to search without a warrant, as opposed to the Dissent’s view,
which attempts to divine the framers’ intent based solely on a textual comparison of Article
I, Section 8 and the Fourth Amendment.
That Article I, Section 8 must be read in conjunction with more abstract
considerations of how far the government may encroach on the rights of citizens is not a
new theory. In Pap's A.M. v. City of Erie, 812 A.2d 591, 603 (Pa. 2002), wherein we
13 These citations did not escape the notice of the dissenting Justices. Justice Castille,
joined by then-Justice Saylor, filed a dissenting opinion criticizing the Shaw majority for
relying on cases that did not interpret Article I, Section 8. See Shaw, 770 A.2d at 305-06
(Castille, J., dissenting) (noting that the majority cited a plurality portion of Denoncourt
that “lacks precedential value,” while In re June 1979 “never so much as cited Article I, §
8.”).
[J-51-2020] - 50
declined to follow the high Court’s interpretation of the First Amendment in interpreting
our analogous Article I, Section 7 provision, we cited Article I, Section 1 as forming a
component of our Edmunds analysis. We observed that “[t]he very first Article of the
Pennsylvania Constitution consists of the Pennsylvania Declaration of Rights, and the
first section of that Article affirms, among other things, that all citizens have certain
inherent and indefeasible rights.” Id. at 603 (quotation marks omitted). We stated that
the specific rights under Article I are “[a]mong those inherent rights[.]” Id.
City of Erie is not directly on point because there the question was whether our
charter would recognize a right that the federal constitution does not; here, there is no
dispute that an automobile is protected. Yet that case, like Shaw, confirms that the degree
of protection enjoyed by a Pennsylvania citizen rests on something more than the mere
text of Article I, Section 8. As Justice Todd catalogued in her Gary dissent, “the federal
approach discounts the vital individual privacy interests historically protected in this
Commonwealth by Article I, Section 8.” Gary, 91 A.3d at 140 (Todd, J., dissenting).
In sum, the Dissent’s textual analysis of Article I, Section 8 versus the Fourth
Amendment does not acknowledge any broader privacy interests protected by our
constitution. The criticism goes beyond the dispute about whether Gary is reconcilable
with Edmunds and Pennsylvania-specific constitutional holdings. It calls for overruling
Edmunds itself and expresses a desire to give “greater significance . . . to the absence of
any textual delineation of an exclusionary precept in the Pennsylvania Constitution, as
well as this Court’s non-recognition of a state-level exclusionary rule throughout 200 years
of its history.” Dissenting Op. at 2-3 (Saylor, C.J.). However, both parties accepted the
continuing vitality of Edmunds, and the briefing in this matter has addressed whether Gary
[J-51-2020] - 51
is compatible with our Article I, Section 8 jurisprudence. That analysis includes, of course,
Edmunds.
By criticizing the foundations upon which our holding is built, the Dissent does not
address that a “steady line of case-law has evolved under the Pennsylvania Constitution,
making clear that Article I, Section 8 is unshakably linked to a right of privacy in this
Commonwealth.” Edmunds, 586 A.2d at 898. It would hold that the unshakable links
forged by our cases should never have been formed. But fortunately, the links have been
established. We must follow the chain and acknowledge the greater privacy protections
established by the Pennsylvania Constitution and our precedents.
VII. Conclusion and Mandate
As a result of today’s decision, we return to the pre-Gary application of our limited
automobile exception under Article I, Section 8 of our Constitution, pursuant to which
warrantless vehicle searches require both probable cause and exigent circumstances;
“one without the other is insufficient.” Luv, 735 A.2d at 93. “This dual requirement of
probable cause and exigency is an established part of our state constitutional
jurisprudence.” Hernandez, 935 A.2d at 1280. As to the renewed application of this
principle, we share the confidence expressed by Justice Todd in her dissenting opinion
in Gary, specifically that police officers are “eminently capable as trained professionals of
making the basic assessment of whether it is reasonably practicable for them to seek a
warrant, under all of the circumstances existing at the time they wish to search an
automobile.” Gary, 91 A.3d at 159 (Todd, J., dissenting).
We are mindful, however, that in some future cases we may have to say that a
police officer’s warrantless search was not justified by exigent circumstances. Difficulties
[J-51-2020] - 52
in clarifying the scope of the exigency requirement will lead to debates about what exactly
the Pennsylvania Constitution demands in a given situation. But so what? The long
history of Article I, Section 8 and its heightened privacy protections do not permit us to
carry forward a bright-line rule that gives short shrift to citizens’ privacy rights. In Ramos
v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1411 (2020), the high Court overruled cases
holding that the United States Constitution does not demand unanimous verdicts for
felonies. Responding to concerns that stare decisis counseled against overruling, the
Court responded:
In the end, the best anyone can seem to muster against Mr.
Ramos is that, if we dared to admit in his case what we all
know to be true about the Sixth Amendment, we might have
to say the same in some others. But where is the justice in
that? Every judge must learn to live with the fact he or she will
make some mistakes; it comes with the territory. But it is
something else entirely to perpetuate something we all know
to be wrong only because we fear the consequences of being
right.
Id. at 1408.
We cannot offer a definition of exigency that will apply to all scenarios. No case
law suggest that the exigency requirement in other scenarios is subject to precise
definition. The basic formulation of exigencies recognizes that in some circumstances
“the exigencies of the situation make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey
v. Arizona, 437 U.S. 385, 393–94 (1978) (internal quotation marks omitted). That inquiry
is not amenable to per se rules and requires a consideration of the totality of the
circumstances. See, e.g., Commonwealth v. Davido, 106 A.3d 611, 623 (Pa. 2014) (“We
do not suggest that domestic abuse cases create a per se exigent need for warrantless
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entry; rather, a reviewing court must assess the totality of the circumstances presented
to the officer before the entry in order to determine if exigent circumstances relieved the
officer of the duty to secure a warrant.”).
Obtaining a warrant is the default rule. If an officer proceeds to conduct a
warrantless search, a reviewing court will be required to determine whether exigent
circumstances existed to justify the officer’s judgment that obtaining a warrant was not
reasonably practicable. That the universe of qualifying “exigent circumstances” is
impossible to define with precision does not justify adopting the federal automobile
exception any more than the inability to supply an objective definition of whether an
expectation of privacy is “reasonable” justifies jettisoning the Fourth Amendment. See
Oliver v. United States, 466 U.S. 170 (1984) (“No single factor determines whether an
individual legitimately may claim under the Fourth Amendment that a place should be free
of government intrusion not authorized by warrant.”). Courts will have to decide, just as
they did pre-Gary, whether exigent circumstances justified warrantless searches in
discrete scenarios, with a focus on the particular facts.
The remaining question is whether the instant search was authorized under that
standard, and the answer requires further development. The Commonwealth claims that
the litigation herein “prevented the Commonwealth from placing evidence on the record
that advanced communications technology is not used for search warrants by the local
judiciary in Philadelphia – a matter relevant to defendant’s claim on appeal that the
automobile exception is supposedly no longer necessary.” Commonwealth’s Brief at 12
n.5. Additionally, the testimony was not particularly directed at the exigencies of the
[J-51-2020] - 54
situation. We therefore reverse the order of the Superior Court, with directions to remand
the matter to the trial court for further proceedings consistent with this opinion.
Order reversed. Jurisdiction relinquished.
Justices Baer, Todd and Wecht join the opinion.
Justice Baer files a concurring opinion.
Chief Justice Saylor and Justices Dougherty and Mundy file dissenting opinions.
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