Court relaxes restrictions on Pa. car searches

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Police officers in Pennsylvania will now have an easier time searching your car without a warrant following a state Supreme Court decision that generated controversy along predictable lines between law enforcement and privacy advocates.

The change, lambasted by the American Civil Liberties Union and defense attorneys, dials back the more stringent privacy standard that had been established by the court in a 1995 case involving Pittsburgh police.

At its essence, the court ruled that police in Pennsylvania now have to meet only one legal burden -- probable cause -- instead of two before searching a car without a warrant.

The second legal hurdle had been the need for exigent circumstances to be present, or a dire need for swift police action.

"From a defense attorney's perspective it's very concerning," veteran Pittsburgh lawyer Lee Rothman said Friday. "It has limited the rights of citizens of Pennsylvania."

Law enforcement is thrilled with last week's decision, stemming from a 2010 traffic stop and warrantless vehicle search in Philadelphia that led to a marijuana seizure after officers smelled pot and the driver admitted to having some "weed."

Prosecutors claimed the new ruling will benefit both police and taxpayers and noted that it aligns Pennsylvania law with federal law, which has long held a less-stringent standard than the commonwealth.

"That's a huge win for us," said David J. Freed, district attorney for Cumberland County and head of the Pennsylvania District Attorneys Association. "The thing to focus on here is not that the court says warrantless searches are suddenly kosher. It's that they're bringing this in line with federal law."

Privacy advocates argued that the court has eroded the state's long history of protecting individual property rights.

"We are disappointed in the decision. We support a search warrant requirement before vehicle searches. I think we're wary of anything that gives police officers greater discretion and authority but requires less accountability," said Reggie Shuford, executive director of the ACLU of Pennsylvania.

He also suggested that the elimination of the need for exigent circumstances to search a vehicle without a warrant could lead to police abuse, a notion at which Mr. Freed scoffed.

David Harris, a law professor at the University of Pittsburgh, said the upshot is simple for Pennsylvanians.

"It reduces their protections," Mr. Harris said.

But, he added, he does not foresee any major impact.

"It's hard for me to believe that the police were handicapped by Pennsylvania laws," Mr. Harris said. "If that had been the case, we would have had this done away with a long time ago."

Since 1925, the U.S. Supreme Court has recognized that when it comes to cars, there is some wiggle room in the Fourth Amendment's protections against unreasonable search and seizure.

That interpretation stemmed from a case in which Prohibition-era federal agents lacking a warrant pulled over a car carrying suspected bootleggers in Michigan and found gin and whiskey.

The high court determined that if it was not practical to get a warrant and there was probable cause, law enforcement could search a car.

Over the decades, the court's rulings shifted. Where law enforcement once needed both probable cause and exigent circumstances to perform a warrantless search, the U.S. Supreme Court eventually did away with the latter requirement.

Why? Because cars can easily and quickly be driven away, the court reasoned.

So, for example, if a police officer is busy trying to get a warrant, someone can drive away and remove the evidence of a crime. In other words, there was exigency simply because of the "inherent ready mobility of a motor vehicle."

Also, the court stated, because cars are so heavily regulated by government, people should have a diminished expectation of privacy in them.

But even when the U.S. Supreme Court made it easier for warrantless searches to be conducted, Pennsylvania stood its ground.

Although the state constitution's language guarding against unreasonable search and seizure is similar to that found in the U.S. Constitution, the state Supreme Court had afforded Pennsylvanians more protections than federal law allowed. Other states have done the same.

In its 1995 decision concerning the warrantless search five years earlier by Pittsburgh police of a suspected drug dealer's vehicle, the court wrote:

"The sole issue raised in this case is whether the police may conduct a warrantless search of an automobile, absent exigent circumstances, after its occupants have been arrested and are outside the automobile in police custody. For the reasons that follow, we hold that such a search is illegal and that evidence seized as a result must be suppressed."

Problems arose in Pennsylvania, though, with courts offering decisions -- the court termed it "fractured jurisprudence" -- that created a hodge-podge of law, leading to confusion for prosecutors and police.

With the state Supreme Court's recent decision, Pennsylvanians are back to having the same level of protection as most other citizens.

"We were right all along," said Kevin McCarthy, an assistant district attorney in the appellate unit of the Allegheny County district attorney's office, who was working there during the court's 1995 ruling.

"It's beneficial to the public in multiple ways. First, it allows for the police to act quickly in situations where they have probable cause without putting the additional burden on them of seeking a warrant, which would require them to secure the vehicle which will be searched," Mr. McCarthy said. "It relieves the overtaxing of police resources."

Defendants who disagree with the search can always battle it at trial, Mr. McCarthy said.

He added that the key question is whether a judge should be involved in analyzing the legality of a search before it happens -- through granting a search warrant -- or after it is completed, through a suppression hearing.

"Is that an advantage? Is that a benefit to society, to have that done first as opposed to a check later after the search has occurred?" Mr. McCarthy said. "There's a societal cost to that. And that is the additional cost and burden to taxpayers."

It's not clear how often warrantless searches of motor vehicles occur in the commonwealth since neither the Pennsylvania State Police nor the Pennsylvania District Attorneys Association keeps that statistic.

But it is certain that vehicle stops are the most common way police interact with citizens -- by a factor of 10, said Mr. Harris, the Pitt professor.

None of those interviewed for this story could say with certainty why the court decided to change the standard now.

"There really was no pressing need to do it. The law was fine as it was," Mr. Shuford of the ACLU said.

But both Mr. Shuford and Mr. McCarthy indicated that the composition of the bench might have had an impact.

The justices favoring the change included an ex-Philadelphia police officer, a former Philadelphia district attorney, a former Cumberland County district attorney, and a onetime prosecutor with the state attorney general's office.

Veteran Pittsburgh defense attorney Caroline Roberto was not pleased with the court's ruling.

"I think the decision is an anachronism. The court is out of step with Pennsylvania citizens," who want more privacy rather than less, Ms. Roberto said.

Justice Debra McCloskey Todd, who wrote the dissenting opinion that was joined by Justice Max Baer, said her colleagues "eviscerated" privacy protections for people in their cars.

"By so doing, our court heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright," Justice McCloskey wrote.


Jonathan D. Silver: jsilver@post-gazette.com, 412-263-1962 or on Twitter @jsilverpg.

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