1.0 INTRODUCTION
The current paper is premised on the warrant and warrantless searches of
automobiles. The introductory section will comprise several aspects: the general
meaning of searches and seizures and the provisions of the Fourth Amendment on
warrant and warrantless searches. The preceding sections will be critically analysed in
a bid to understand the general topic of searching automobiles.
1.1 Meaning of Search and Seizure Generally
The legal meaning of the terms “search and seizure” is crucial in the current
paper. The term “search” denotes the examination of a person’s home, building,
person, automobile, papers, or effects with the aim of discovering contraband or
some other evidence of guilt for prosecuting criminal action. 1 Moreover, the
United States Supreme Court has established a two-tier test in determining
whether a search was conducted. The first aspect is whether an individual
exhibited actual expectation of privacy and the second is whether such an
expectation was one that society is prepared to recognize as reasonable. 2
Moreover, a search under the authority or purported authority of law implies a
prying by government agents into hidden places for that which is not open to view
or is concealed. It also denotes an invasion with some measure of force or
submission to that force compelled under law, either actual or constructive.
On the other hand, the term “seizure” denotes taking something forcefully. The
force can either be actual or constructive under the purported authority of law or
by the government, its officers, or agents. Individuals have been seized only if
there is an objective reason to believe they are not free to end their interactions
with the police and proceed on their way. 3
However, the United States Supreme Court has noted that virtually all
interactions with law enforcement are to some degree viewed as a show of
authority to which people usually accede. If the only issue were whether the
individual felt free to walk away or to refuse to answer, all police-citizen
encounters would constitute a Fourth Amendment seizure. Thus, “[a]
confrontation is a seizure only if the officer adds to those inherent pressures by
engaging in conduct significantly beyond that accepted in social intercourse.” 4
The reasonableness of seizures that are less intrusive compared to traditional
arrests depends on the three-tier balance test. The court evaluates the gravity of
the concerns of the public subjected to the seizures, the degree to which the
seizure advances public interest and the gravity of the infringement of people’s
privacy. 5
1 Commonwealth v. Cass, 551 Pa. 25, 36, 709 A.2d 350, 355 (1998) (Opinion Announcing the Judgment
of the Court), rev’g 446 Pa.Super. 66, 666 A.2d 313, 104 Ed. Law Rep. 782 (1995); Commonwealth
v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994)
2 Commonwealth v. Blasioli, 454 Pa.Super. 207, 685 A.2d 151 (1996), aff’d 552 Pa. 149, 713 A.2d
1117 (1998), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See
also United States v. Jones, 132 S.Ct. 945, 181 L.Ed.911 (U.S. 2012)
3 Commonwealth v. Hoak, 700 A.2d 1263 (Pa. Super.1997), aff’d 557 Pa. 496, 734 A.2d 1275 (1999),
citing U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Commonwealth v.
Beasley, 761 A.2d 621 (Pa. Super.2000). See also Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017)
; Commonwealth v. Hampton, 2019 PA Super 38, 204 A.3d 452 (2019)
4 Com. v. Mathis, 173 A.3d 699 (Pa. 2017), aff’g 125 A.3d 780 (Pa. Super. 2015), quoting LaFave,
6 Search and Seizure § 9.4(a) (5th ed.). See also § 19:34. Mere encounters, investigatory (Terry)1 stops,
and custodial detentions.
5 U.S. Const. Amend. 4; Pa. Const. Art. 1, § 8. Com. v. Beaman, 583 Pa. 636, 880 A.2d 578, 582 (2005),
2
Other than reasonableness, the Fourth Amendment generally requires the
presence of individualized suspicion to justify a seizure. 6
The factors relevant to determining whether a seizure has occurred include the
existence and nature of any prior seizure; whether there was a clear and expressed
endpoint to any such prior detention; the character of the police presence and
conduct in the encounter under review; geographic, temporal, and environmental
elements associated with the encounter; and the presence or absence of express
advice that the subject was free to decline any request for a consent to search. 7
1.2 Motor Vehicle Searches
The motor vehicle exception is a legal rule in the United States that modifies
the normal warrant requirement of the Fourth Amendment to the United States
Constitution and, when applicable, allows a police officer to search a motor
vehicle without a search warrant.
Section 19 of theThe Fourth Amendment provides for motor vehicle
searches. It expressly provides that every person has the right to be secure and
that such right includes their person, house, effects and papers against any
unreasonable seizures and searches. The section provides that the right shall
not be violated and no warrants shall be issued that could possibly violate the
right.
An individual operating an automobile has an expectation of privacy in the
security of his automobile against unreasonable searches and seizures, but
under the Fourth Amendment that expectation of privacy is diminished by
qualities unique to the automobile. Under Pa.Const. Art. 1, § 8, however, the
protections afforded an automobile are greater.
1.3 Provisions of the Fourth Amendment on:
1.3.1 Warrant Searches
The Fourth Amendment (Amendment IV) to the United States
Constitution is part of the Bill of Rights. Accordingly, it proscribes
unreasonable searches and seizures. In addition, it sets requirements for
issuing warrants. Thus, it requires that warrants must be issued by a judge
or magistrate, justified by probable cause, supported by oath or
affirmation, and must particularly describe the place to be searched and the
persons or things to be seized.
A court grants permission by issuing a writ known as a warrant. A
search or seizure is generally unreasonable and unconstitutional if
conducted without a valid warrant and the police are required to obtain a
warrant whenever practicable. Searches and seizures without a warrant are
not considered unreasonable if one of the specifically established and well-
delineated exceptions to the warrant requirement applies. 8 These
exceptions apply in those exceptional circumstances in which special
needs, beyond the normal need for law enforcement, make the warrant
and/or probable cause requirements impracticable.
1.3.2 Warrantless Seizure
citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
6 Ibid
7 Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), citing Commonwealth v. Strickler,
563 Pa. 47, 757 A.2d 884, 889 (2000). See also Commonwealth v. Dowds, 563 Pa. 377, 761 A.2d
1125 (2000)
8 Flippo v. West Virginia, 528 U.S. 11
3
In the United States, warrantless searches are restricted under the
Fourth Amendment to the United States Constitution, part of the Bill of
Rights. The provision of guarantees the people the right to have their
person, houses, papers and effects secure. It also proscribes the issuance of
warrants that could contravene the right.
2.0 WHAT IS A CAR
2.1. Federal Definitions
Regulations implementing the federal Motor Vehicle Information and Cost Savings
Act define the terms "automobile," "passenger automobile," and "light truck." The primary
purpose of these definitions is for vehicle classification under national requirements for fuel
economy applicable to manufacturers. 9 The terms "passenger car," "truck," and "multipurpose
passenger vehicle" are defined in regulations implementing national motor vehicle safety
standards that cover things like occupant protection, braking systems, lighting, window
glazing, tires, and many other areas. These standards are also applicable to manufacturers. 10
The third significant area of federal regulations are the interstate motor carrier safety
standards in which the terms "commercial motor vehicle" and "truck" are defined. These are
equipment and operational standards that apply to private, contract, and "for-hire" motor
carriers. 11
The term “motor vehicle” is also defined under the Federal Motor Vehicle Safety
Standards. The federal motor vehicle safety standards are the basic requirements that
manufacturers must follow when making motor vehicles. There are more than 50 separate
standards covering things from braking systems and lighting to head restraints and windshield
washing systems. Passenger cars, motorcycles, school buses, trucks, and multipurpose
passengers’ vehicles are all covered by one or more of the standards. Under the regulations, a
passenger car is defined as a motor vehicle, other than a motorcycle, multipurpose passenger
vehicle, or trailer, that is designed to carry up to 10 people. A multipurpose passenger vehicle
is designed to carry up to 10 people, but is constructed on a truck chassis or with special
features for occasional off-road operation. A truck is a motor vehicle designed primarily for
the transportation of property or special purpose equipment.
The Federal Motor Carrier Safety Regulations also define a motor vehicle. These are
regulations that establish the equipment and operating rules for motor vehicles that operate in
interstate commerce transporting goods or people. The regulations define a "commercial
motor vehicle" as any self-propelled or towed vehicle used on a public highway in interstate
commerce to transport passengers or property when the vehicle: has a gross vehicle weight
rating of 10,001 pounds or more; is designed to transport more than 15 passengers, including
the driver; or is used to transport hazardous materials in a quantity that requires placards
under federal hazardous materials regulations. 12
A separate set of federal requirements governing uniform licensing standards for
commercial vehicle drivers uses a slightly modified version of this definition. The difference
in the definition is in the gross weight limits. The licensing standards apply to operators of
vehicles with gross weight ratings of 26,001 pounds or more rather that 10,001 pounds or
more. 13
9 49 CFR § 523
10 49 CFR § 571
11 49 CFR § 571
12 49 CFR § 390.5
4
2.2 Importance of cars in Human Lives
One of the significances of a car in human lives is that it is form of property that a lot
of people take pride in. Buying a car is perhaps considered as one of the most valuable and
biggest investments that you can make in your entire life, second to buying a home. Thus,
your car is not just a car anymore, it is a property. And, in times of need, which can take
place at some point in our life, you can also sell it as well as use the money for buying more
important things. And, in times of success, your car can be easily traded in for a new and
better car that comes with even better benefits. Furthermore, many people use cars to store
personal items in, carry confidential/medical records in, and sometimes to live in.
Personal cars also serve as an easy form of transport from one place to another.
Getting from location A to B has actually never been easier and more convenient than ever
before. As a matter of fact, if one has a car of their own, one does not necessarily need to rely
on other public means of transportation anymore for daily commutes. Further, one can easily
enjoy the independence, liberty, and comfort that comes with a personal car.
2.3. Is a mobile home a car?
If a manufactured or mobile home has wheels and/or other equipment used for
mobility, it is considered to be a vehicle, and therefore personal property, and should
accordingly be titled through the Virginia Department of Motor Vehicles. For example, a
Virginia real estate license does not authorize the licensee to assist clients in
buying/selling/leasing manufactured or mobile homes as personal property. 14
A manufactured or mobile home is considered to be real estate if its wheels and/or
other equipment used for mobility have been removed; it has been attached to real estate; and
the vehicle title has been cancelled via surrender to the relevant Department of Motor
Vehicles. 15 Further, pursuant to Virginia Code §46.2-653, once the manufactured or mobile
home has been converted to real estate, then it can only be sold as real estate is sold. 16 As
Virginia real estate agents are licensed to assist clients in buying/selling/leasing real estate,
they are therefore able to assist clients with buying/selling/leasing manufactured or mobile
homes that have effectively been converted from personal property to real property.
In addition to determining whether the structure is a vehicle or real estate, it is also
important for the agent to determine if the underlying land is owned by the owner of the
manufactured [mobile] home, or if it is leased from the landowner. If the owner of a
manufactured [mobile] home which has been effectively converted to real estate also owns
the underlying land, then that owner may list the land and improvements for lease/sale just as
they would any other improved real estate. If the owner of a manufactured [mobile] home
which has been effectively converted to real estate does not own the underlying land, then
that owner only has the right to sell the structure, and would only be able to negotiate a
transfer of the lease of the underlying land as allowed by the home owners specific lease
agreement.
Accordingly, if a manufactured or mobile home is a vehicle with wheels and/or other
equipment used for mobility intact, it may be transferred only as a vehicle, which is personal
property, and which may not be listed for sale/lease through the MLS. If a manufactured or
13 49 CFR § 383.5
14 § 54.1-2103 Code of Virginia
15 Department of Motor Vehicle Guidelines
16 Virginia Code §46.2-653
5
mobile home has been effectively converted to real property, it may be listed for sale/lease
through the MLS. Note that the listing agent will need to be clear in the listing whether the
underlying land is included in the sale/lease.
Moreover, the United States Supreme Court acknowledged that a motor home "possessed
some, if not many of the attributes of a home." However, when a vehicle is being used on the
highway, or if it is readily capable of such use and is found stationary in a place not regularly
used for residential purposes — temporary or otherwise — the two justifications for the
vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of
an ignition key, if not actually moving. Second, there is a reduced expectation of privacy
stemming from its use as a licensed motor vehicle subject to a range of police regulation
inapplicable to a fixed dwelling. 17
3.0. CONFLICT BETWEEN AN INDIVIDUAL’S PRIVACY AND LAW
ENFORCEMENT
3.1. The Right to Privacy including Warrantless Searches by Police
Officers.
The fourth amendment to the United States Constitution provides that: 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.’ 18 This amendment guarantees to all citizens a
personal right of privacy, free from unreasonable governmental searches and
invasions.
The fourth amendment does not prohibit all searches, only those that are
unreasonable’. When a search is unreasonable as a matter of law, the
exclusionary rule, which precludes the use of illegally obtained evidence, is
activated. However, not all unreasonable searches result in exclusion. For
example, a search may be unreasonable but the fruits of the search may be
admissible under either the “independent source” or “inevitable discovery”
rules. The United States Supreme Court has consistently held that "searches
conducted without the authority of a search warrant are per se unreasonable
under the Fourth Amendment subject only to a few specifically established
and delineated exceptions."’ These specific exceptions are "jealously and
carefully drawn." Proof of exigent circumstances or the existence of another
exception obviates the warrant requirement.’
One area of exigent circumstances law involves searches incident to
arrest. Accordingly, the Supreme Court decisions interpreting the application
of the search-incident-to-arrest exception have resulted in constantly shifting
methods of analysis. The Court has been unable to establish a strong precedent
for application in cases arising under this exception. This inability has
generated criticism focusing on the confusion and unpredictability of the
decisions. The groundwork for the search-incident-to-arrest exception may be
found in dicta of several Supreme Court decisions. These dicta became the
foundation for the decision in Marron v. United States, which held there is a
17 Carney, 471 U.S. at 392-93.
6
"right without a warrant contemporaneously to search the placean
automobile," in order to find and seize evidence of crime. 19 This new
reasoning was subsequently held inapplicable when the circumstances of the
arrest allowed the arresting officers to obtain a search warrant. 20 The pendulum
swung towards further extension of the scope of the search incident to arrest in
what were to become the two most influential decisions in this area for almost
twenty years.
In Harris v. United States, the Court sustained a warrantless search of
an entire four-room apartment. The Court noted that "the opinions . . .
recognized that the search incident to arrest may, under appropriate
circumstances extend beyond the person of the one arrested to include the
premises under his immediate control". 21 Finding that Harris commanded
exclusive control over the entire four-room apartment, the Court emphasized
the reasonableness approach. The Harris Court also considered the nature of
the objects of the search in concluding that both the intensity and length of the
search were reasonable. 22 United States v. Rabinowitz strengthened the Harris
principle of reasonableness. 23 This decision upheld the search of a desk, safe,
and file cabinets contained in a one-room office where the arrest occurred.
Furthermore, in the case of Chimel v California, the court held that an
incident to a lawful arrest, a search of any area beyond the arrestee’s
immediate control, is unlawful under the Fourth Amendment of the United
States Constitution (“Constitution”), unless there is a clear danger that
evidence may be destroyed or concealed or there is an imminent threat of
harm to the arresting officers. 24
3.2. Protection of Individuals’ Right to Privacy from Arbitrary
Interference by Police Officers
Fourth amendment cases place constitutionally protected privacy
interests against the responsibilities of law enforcement officers to combat
crime. The two interests are positioned in such a manner that the protection of
one interest often curtails the other. It is the court’s responsibility to balance
the public’s interest in safety against the individual’s right to privacy free from
arbitrary interference by police officers. Law enforcement officials’ decisions
to search subsequent to a lawful arrest are necessarily swift ad hoc judgments,
leaving little room for them to contemplate the legality of their actions.
Therefore, in order for policemen to work within constitutional
limitations, the Court must provide guidelines on the balance between the right
to privacy and arbitrary interference by the police officers. Since the fourth
amendment regulates law enforcement officials in their daily conduct, its
requirements need "to be expressed in terms that are readily applicable by the
police”. 25 Juxtaposed against the duties of law enforcement officials are the
personal interests protected by the fourth amendment. Individuals are
guaranteed freedom from unreasonable invasions of legitimate privacy
19 Marron v United States, 275 U.S. 192 (1927)
20 Ibid
21 Harris v United States 536 U.S 545 (2002)
22 Ibid
23 United States v Rabinowitz 339 U.S. 56 (1950)
24 Chimel v. Cal., 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, 1969)
25 Commonwealth v. Davis, 2018 PA Super 127, 188 A.3d 454 (2018). See also Commonwealth v. Chesney,
2018 PA Super 262, 196 A.3d 253 (2018)
7
interests. These privacy interests are “indispensable to the full enjoyment of
personal security, personal liberty and private property . . . [and] they are to be
regarded as the very essence of constitutional liberty”. 26
4.0. THE EXCLUSIONARY RULE REGARDING SEIZURE OF EVIDENCE
Seizure of evidence in violation of an individual’s fourth amendment rights invokes
the exclusionary rule. The rule bars the prosecution from introducing illegally seized
evidence at trial. Currently the major rationale of the rule lies in its potential deterrent
effect, however, the preservation of judicial integrity is another suggested justification.
The trend towards the deterrence rationale as the sole justification for the exclusionary
rule has led to the erosion of the rule’s application. There is a growing tendency to find
that the harmful consequences of the rule outweigh any deterrent effect as well as a
tendency to hesitate in applying the rule to anything less than flagrant or wilful violations
of fourth amendment rights. The exclusionary rule has been held inapplicable in grand
jury proceedings, impeachment of witnesses, actions under statutes subsequently held
invalid, and administrative proceedings.
The criticisms directed at the exclusionary rule, coupled with the current trend by the
Court, suggest that modification of the exclusionary rule may be imminent. Justice
White’s dissent in Stone v. Powel1 proposed barring the rule’s application in those
circumstances where the evidence at issue was seized by an officer acting in the good
faith belief that his conduct comported with existing law and having reasonable grounds
for this belief. 27 This "good faith" rule is based upon the assumption that the purpose of
the exclusionary rule is the deterrence of wilful police misconduct. 28 It is argued that
when the officer does not know his actions are illegal or he acts under the mistaken
assumption that they are legal, the exclusionary rule has no deterrent effect. 29
Whether it is perceived as an exception to or modification of the exclusionary rule,
the "good faith" standard can be seen as protecting individual rights only when deterrence
of illegal police conduct can be effectively achieved. Although However, the United
States Supreme Court has not yet adopted the good faith standard suggested by Justice
White, the Fifth Circuit, in United States v. Williams, recently proclaimed its acceptance
of this change in the exclusionary rule. 30 The Fifth Circuit modified the exclusionary rule
to the extent -that evidence is admissible "where it is discovered by officers in the course
of actions that are taken in good faith and in the reasonable though mistaken belief that
they are authorized". This holding, grounded on the belief that that the exclusionary rule’s
purpose is to deter only wilful or flagrant violations of fourth amendment rights, may
have a considerable impact on the status of the exclusionary rule in other jurisdictions.
5.0. REQUIREMENT FOR WARRANTLESS SEARCHES IN THE CONTEXT OF
AUTOMOBILES
5.1. The Federal Automobile Search Requirement
An individual operating an automobile has an expectation of privacy in the
security of his automobile against unreasonable searches and seizures, but under
the Fourth Amendment that expectation of privacy is diminished by qualities
unique to the automobile. 31
26 Ibid
27 Stone v Powell, 428 U.S. 465 (1976)
28 Ibid
29 Ibid
30 United States v Williams, 504 U.S. 36 (1992)
8
. Under the “automobile exception” to the warrant requirement recognized
under the United States Constitution, the significant differences between
automobiles and other property permit warrantless searches of automobiles under
circumstances in which a warrantless search would otherwise be deemed
unreasonable. 32
Under Pa.Const. Art. 1, § 8, however, the protections afforded an automobile
are greater. Probable cause is still required, but exigent circumstances are not,
because the car is mobile and the opportunity for a search is often fleeting, and
because there is a lesser expectation of privacy. 33 In Commonwealth v. Gary, the
Pennsylvania Supreme Court held that the law governing warrantless searches of
motor vehicles
in Pennsylvania is coextensive with federal law under the Fourth
Amendment. 34 Moreover, in Commonwealth v. Runyan, the Superior Court,
following Gary, held that if a police officer had probable cause to search the
vehicle at issue for contraband, the officer was also permitted to search any
container found therein where the contraband could be concealed, including
Appellee’s purse. 35
In Commonwealth v. Alexander, the Supreme Court overruled the bright line
rule announced in Gary after an extensive precedential analysis of Article I,
Section 8 and its historic link to privacy and the greater protections privacy
demands when an automobile search is at issue. 36 In the preceding case,
Aa police officer lacked probable cause to search a defendant’s
vehicle—parked harmlessly on the sidewalk—after finding the defendant asleep
in the vehicle. The officer was the only person out of the six at the scene who
believed the defendant was under the influence and incapable of driving, other
officers drove off without mentioning that they thought a crime had occurred or
conducting a full-scale investigation, and paramedics examined the defendant and
departed without indicating that defendant was unfit to drive, and the officer
merely had a little suspicion something was going on. 37 Hence in such instances,
where the police has probable cause of a crime being committed, they can infringe
one’s right of privacy and conduct a warrantless search.
31 Ibid
32 Preston v U.S., 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed 2d 777 (1964); Carroll v. U.S., 132, 45 S. Ct. 280, 69 L. Ed.
543, 39 A.L.R. 790 (1925); Com. V Shaffer, 447 Pa. 91, 288 A. 2d 727, 77 A.L.R. d 1124 (1972); Com. V Smith,
443 Pa. 151, 277 A. 2d 807 (1971).
33 Com. v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Com. v. Shaffer,
447 Pa. 91, 288 A.2d 727, 77 A.L.R.3d 1124 (1972); Com. v. Griffin, 2011 PA Super 138, 24 A.3d 1037
(2011), appeal denied, 34 A.3d 82 (Pa. 2011)
34 Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706
(1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Com.
v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988)
35 Commonwealth v. Runyan, 2017 PA Super 114, 160 A.3d 831 (2017). See also In re I.M.S., 2015 PA
Super 188, 124 A.3d 311 (2015). Compare Commonwealth v. Loughnane, 173 A.3d 733 (Pa. 2017)
(The federal automobile exception, adopted by this Court in Com. v. Gary, 625 Pa. 183, 91 A.3d 102
(2014), does not operate to permit the warrantless seizure of a vehicle parked on a defendant’s residential
driveway.)
36 Commonwealth v. Alexander, 243 A.3d 177, 208 (Pa. 2020)
37 Commonwealth v. Davis, 2018 PA Super 127, 188 A.3d 454 (2018). See also Commonwealth v. Chesney,
2018 PA Super 262, 196 A.3d 253 (2018)
9
Also in Commonwealth v Loughnane, the Supreme Court held that the
automobile exception to the warrant requirement recognized in Gary does not
apply to vehicles parked in private driveways. 38 Subsequently, in Collins v.
Virginia, the United States Supreme Court held that the federal automobile
exception “does not afford the necessary lawful right of access to search a vehicle
parked within a home or its curtilage because it does not justify an intrusion on a
person’s separate and substantial Fourth Amendment interest in his home or
curtilage.” 39
5.2. Application of exception to automobile searches
To search under the motor vehicle exception, an officer must have
probable cause. The Supreme Court has stated that “probable cause is a fluid
concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of legal rules.” 40
Probable cause is not a “one size fits all” standard. In fact, probable cause is a
range that occupies a zone10 that is assessed under the totality of the
circumstances. The seminal motor vehicle exception case is Carroll v. United
States. 41 The Carroll decision illustrates just how low the probable cause standard
is when conducting a warrantless search under the motor vehicle exception. In
Carroll, federal prohibition agents acting undercover had negotiated for the
purchase of illegal whiskey in Grand Rapids from the two defendants, Kiro and
Carroll.
The sale was never consummated. Approximately 1 week later, the agents
saw Kiro and Carroll traveling toward Detroit in the same car they used to drive to
the undercover negotiations. More than 2 months later, the agents once again saw
the defendants driving in the same automobile from the Detroit area toward Grand
Rapids. The warrantless search of the vehicle and found illegal liquor hidden
beneath the upholstery of the seats. The U.S. Supreme Court approved of the
warrantless motor vehicle search in Carroll because the agents had probable cause
agents knew that at the time, the Detroit area was an active
center for bringing illegal liquor into the United States. Believing that Kiro
and Carroll were smuggling a load of illegal liquor from Detroit to Grand
Rapids, the agents stopped the vehicle. The agents conducted a warrantless
search of the vehicle and found illegal liquor hidden beneath the upholstery
of the seats. The U.S. Supreme Court approved of the warrantless motor
vehicle search in Carroll because the agents had probable cause
6.0. OTHER EXCEPTIONS THAT PERMIT WARRANTLESS SEARCHES OF
AUTOMOBILES
6.1. Application of exception to automobile searches
To search under the motor vehicle exception, an officer must have
probable cause. The Supreme Court has stated that “probable cause is a fluid
38 Commonwealth v Lounghnane, 643 Pa. 408, A. 3d 733, 745 (2017).
39 Commonwealth v. Chesney, 2018 PA Super 262, 196 A.3d 253, 259 (2018), citing Collins v. Virginia,
138 S. Ct. 1663, 1672, 201 L. Ed. 2d 9 (2018) and Commonwealth v Lounghnane, 643 Pa. 408, A. 3d 733, 745
(2017).
40 Illinois v. Gates, 462 U.S. 213, 232 (1983)
41 267 U.S. 132 (1925)
10
concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of legal rules.” 42
Probable cause is not a “one size fits all” standard. In fact, probable cause is a
range that occupies a zone10 that is assessed under the totality of the
circumstances. The seminal motor vehicle exception case is Carroll v. United
States. 43 The Carroll decision illustrates just how low the probable cause standard
is when conducting a warrantless search under the motor vehicle exception. In
Carroll, federal prohibition agents acting undercover had negotiated for the
purchase of illegal whiskey in Grand Rapids from the two defendants, Kiro and
Carroll.
The sale was never consummated. Approximately 1 week later, the agents
saw Kiro and Carroll traveling toward Detroit in the same car they used to drive to
the undercover negotiations. More than 2 months later, the agents once again saw
the defendants driving in the same automobile from the Detroit area toward Grand
Rapids. The warrantless search of the vehicle and found illegal liquor hidden
beneath the upholstery of the seats. The U.S. Supreme Court approved of the
warrantless motor vehicle search in Carroll because the agents had probable cause
agents knew that at the time, the Detroit area was an active
center for bringing illegal liquor into the United States. Believing that Kiro
and Carroll were smuggling a load of illegal liquor from Detroit to Grand
Rapids, the agents stopped the vehicle. The agents conducted a warrantless
search of the vehicle and found illegal liquor hidden beneath the upholstery
of the seats. The U.S. Supreme Court approved of the warrantless motor
vehicle search in Carroll because the agents had probable cause
6.2. Consent
Searching a motor vehicle upon the consent of the person who has the
actual or apparent authority and control over the vehicle is one of the exceptions
that permit warrantless searches. Government actors may conduct a search
without a warrant or probable cause based upon an individual’s voluntary consent,
and any evidence discovered during such search may be seized and admitted at
trial. 44 Consent may be express or implied, but this waiver of Fourth Amendment
rights need not be knowing and intelligent. To determine whether consent was
given voluntarily, courts examine the totality of the circumstances surrounding the
consent. 45
Factors that weigh on the court’s determination of voluntariness include:
knowledge of the constitutional right to refuse consent; age, intelligence,
education, and language ability; the degree to which the individual cooperates
with the police; the individual’s attitude about the likelihood of the discovery of
contraband; and the length of detention and the nature of questioning, including
the use of physical punishment or other coercive police behavior. No single factor
is dispositive. 46 Moreover, the influence of drugs, intoxication, and mental
agitation do not render consent involuntary. Additionally, persons in lawfully
42 Illinois v. Gates, 462 U.S. 213, 232 (1983)
43 267 U.S. 132 (1925)
44 U.S. v. Givan, 320 F.3d 452, 459 (3d Cir. 2003)
45 U.S. v. Santiago, 410 F.3d 193, 199 (5th Cir. 2005)
46 Schneckloth, 412 U.S. at 226-27
11
detained vehicles do not have to be advised that they are free to leave before
giving voluntary consent. 47 The prosecution bears the burden of proving that the
consent was voluntary. Whether consent was voluntary is a question of fact that
will be reviewed under a “clearly erroneous” standard. 48
Consent is not voluntary if given only in acquiescence to a claim of lawful
authority. Therefore, a search may not be justified based on consent given only
after the official conducting the search asserts possession of a warrant or the
possibility of obtaining a warrant if necessary. In addition, consent cannot justify a
search conducted in reliance upon a warrant if a court subsequently determines
that the warrant was invalid.
Moreover, consent to search is generally invalid if an illegal search or
seizure occurred before the consent was given. 49 If, however, consent to search is
given under conditions sufficiently attenuated from an illegal arrest or search,
evidence discovered during the subsequent search will not be suppressed. 50 In
addition to express consent, consent may be implied by the circumstances
surrounding the search, by the person’s prior actions or agreements, or by the
person’s failure to object to the search.
A warrantless search of an automobile is of course permitted with the
driver’s consent. 51 When police officers smelled a strong odour of marijuana in the
defendant’s vehicle and on the defendant, and informed him that they wished to
search the vehicle specifically for drugs, and the defendant consented to the
search, the officers were free to search any containers within the vehicle that could
reasonably contain narcotics, such as the cigarette pack and the cough drop
container in which marijuana was found. 52
Moreover, generally under Pennsylvania law, a defendant charged with a
possessory offense has automatic standing to challenge a search. However, in
order to prevail, the defendant must show, as a preliminary matter, that he had a
privacy interest in the area searched. 53
6.3. Terry stop doctrine for automobiles
During a traffic stop based on a motor vehicle violation, the purpose of a
Terry-type stop or brief detention is to maintain the status quo so that the officer
may conduct a brief and safe investigation to see if indeed there is criminal
activity afoot. 54 Police may not detain a vehicle during the course of a traffic stop
in order to obtain a search warrant absent the probable cause required for the
warrant itself. 55
47 U.S. v. Brown, 345 F.3d 574, 578-79 (8th Cir. 2003)
48 U.S. v. Givan, 320 F.3d 452, 459-60 (3d Cir. 2003)
49 U.S. v. Haynes, 301 F.3d 669, 680-84 (6th Cir. 2003)
50 U.S. v. Robeles-Ortega, 348 F.3d 679, 683 (7th Cir. 2003)
51 Com. v. Viall, 2005 PA Super 435, 890 A.2d 419 (2005). See § 19:33, Consensual Searches.
52 Commonwealth v. Yedinak, 450 Pa.Super. 352, 676 A.2d 1217 (1996), citing Florida v. Jimeno,
500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)
53 Com. v. Burton, 2009 PA Super 87, 973 A.2d 428, 436 (2009) (en banc). See also § 19:47, Motor
vehicle searches. Com. v. Cruz, 21 A.3d1247 (Pa.Super.2011).
54 Com. v. Joseph, 2011 PA Super 273, 34 A.3d 855, 862–863 (2011) (no probable cause)
55 More detail on stopping and searching will be discussed in section 7.4
12
The police cannot conduct a warrantless administrative search of a vehicle
to advance a criminal investigation under the pretext of addressing a specific,
compelling governmental interest advanced by a statutory scheme. 56 Thus,
although exigent circumstances permitted officers to enter a truck for the limited
purpose of checking equipment to prevent further harm, the search and seizure of
the defendant’s logbook and bags from the cab of the truck were not necessary to
further a statutory scheme under Pennsylvania or federal law, and the closely
regulated business exception to the warrant requirement did not apply to the facts
of the case. 57
Moreover, a terry search need not be limited to a stop and frisk of the
person, but may extend as well to a protective search of the passenger
compartment of a car if an officer possesses “a reasonable belief, based on
specific and articulable facts . . . that the suspect is dangerous and . . . may gain
immediate control of weapons.” 58 How lengthy a Terry detention may be varies
with the circumstances. In approving a 20-minute detention of a driver made
necessary by the driver’s own evasion of drug agents and a state police decision to
hold the driver until the agents could arrive on the scene, the Court indicated that
it is “appropriate to examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.” 59
Similar principles govern detention of luggage at airports in order to detect
the presence of drugs; Terry “limitations applicable to investigative detentions of
the person should define the permissible scope of an investigative detention of the
person’s luggage on less than probable cause.” 60 The general rule is that “when an
officer’s observations lead him reasonably to believe that a traveler is carrying
luggage that contains narcotics, the principles of Terry . . . would permit the
officer to detain the luggage briefly to investigate the circumstances that aroused
his suspicion, provided that the investigative detention is properly limited in
scope.” 61 The act of driving or operating a stopped vehicle may establish a
legitimate privacy interest in the vehicle where no evidence to the contrary
exists. 62 In addition to the fact that a defendant was clearly operating the vehicle at
the time it was stopped, uncontradicted testimony established that he vigorously
objected to being stopped by police. The defendant was alone in the vehicle, and
made no attempt to flee when stopped. The totality of these facts, and the absence
of any facts tending to prove otherwise, adequately demonstrated that the
defendant possessed a reasonable expectation of privacy in the vehicle he was
driving. 63
56 Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999) (closely regulated business exception to
warrant requirement inapplicable), aff’g 696 A.2d 817 (Pa.Super.1997). See also § 19:4, Administrative
Searches.
57 Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999) (harmless error). See also § 19:4,
Administrative Searches.
58 Michigan v. Long, 463 U.S. 1032 (1983)
59 United States v. Sharpe, 470 U.S. 675, 686 (1985)
60 United States v. Place, 462 U.S. 696, 709 (1983).
61 462 U.S. at 706.
62 Com. v. Newman, 2014 PA Super 2, 84 A.3d 1072, 1078 (2014).
63 Com. v. Newman, 2014 PA Super 2, 84 A.3d 1072, 1077–1078 (2014).
13
6.4. Plain view
Having lawfully stopped a car, an officer may bring into “plain view” that
which is hidden by darkness by flashing a light on the interior of the car. 64
However, when a police officer was not lawfully inside the vehicle at the time he
seized a coat, and, consequently, was not lawfully in a position to see the cocaine
in the jacket, the plain view doctrine did not apply. 65 In this case, the Superior
Court noted several other reasons that the plain view doctrine did not apply: (1)
the subject of the valid arrest warrant was already arrested and confined to the
back seat of a police cruiser at the time the officer entered the car; (2) the
defendant was detained pending investigation into his parole status outside of the
vehicle at the time of the incursion; (3) the officer neither asked for nor was
granted permission to enter the vehicle to obtain the coat; and (4) the legally
arrested individual did not ask the officer to get anything from the car. 66
When the exigent circumstances requirement was met under
Pennsylvania’s automobile exception, and when the police officer’s lawful seizure
of marijuana in plain view from a defendant’s vehicle brought into plain view
cocaine located inside an open duffle bag in the passenger compartment, the
warrantless seizure of the cocaine was likewise lawful under the plain view
exception. The officer (1) viewed the cocaine from a lawful vantage point, (2) the
criminal nature of the cocaine was immediately apparent, and (3) the officer had a
lawful right of access to the interior of the vehicle. A new set of exigent
circumstances was not required. 67
In Commonwealth v. Scott, based upon the odor of burnt marijuana
emanating from the vehicle, police officers had probable cause to search the
passenger compartment, including any containers found there, for the burnt
marijuana. The officers recovered a jar of marijuana as well as a blunt, which was
the source of the odor of burnt marijuana the officers had smelled. However, the
officers then expanded their search to include the vehicle’s trunk. The record
provided no facts to support a belief that additional contraband was located in the
trunk. Nor did the officer indicate that he had received any sort of special training
to support this belief. Absent more, the odor of burnt marijuana and a small
amount of contraband recovered from the passenger compartment of the vehicle
did not create a fair probability that the officer could recover additional
contraband in the trunk. 68
6.5. Search Incident to Lawful Arrest
In some instances, law enforcement officers can search automobiles
following arrest inly if the person arrested could have accessed the car at the time
of the search. Hence if the person arrested could conceivably reach into his
64 Commonwealth v. Rosa, 734 A.2d 412 (Pa.Super.1999), appeal denied 561 Pa. 693, 751 A.2d 189
(2000) and appeal denied 561 Pa. 686, 751 A.2d 184 (2000); Commonwealth v. Burton, 292 Pa.Super.
73, 436 A.2d 1010 (1981).
65 Commonwealth v. Houston, 456 Pa.Super. 105, 689 A.2d 935 (1997).
66 Commonwealth v. Houston, 456 Pa.Super. 105, 689 A.2d 935 (1997).
67 Com. v. Liddie, 2011 PA Super 104, 21 A.3d 229, 235–236 (2011) (en banc) (The three prongs of the
Horton test were met.), following Com. v. Brown, 2011 PA Super 67, 23 A.3d 544 (2011) (en banc).
See also Com. v. Miller, 56 A.3d 424 (Pa. Super.2012)
68 Commonwealth v. Scott, 2019 PA Super 154, 210 A.3d 359, 365 (2019)
14
vehicle for a weapon then a search based on officer safety is permitted. Otherwise,
the ancient practice of allowing officers to “search incident to arrest” is no longer
allowed unless the police have reason to believe the vehicle contains evidence of
the offence of arrest.
A significant case that elaborates the “search incident to lawful arrest” is
the case of Arizona v Grant. 69 Arizona v. Gant, was a United States Supreme Court
decision holding that the Fourth Amendment to the United States Constitution
requires law enforcement officers to demonstrate an actual and continuing threat
to their safety posed by an arrestee, or a need to preserve evidence related to the
crime of arrest from tampering by the arrestee, in order to justify a warrantless
vehicular search incident to arrest conducted after the vehicle’s recent occupants
have been arrested and secured. 70
Further, in the preceding case, in an opinion delivered by Justice Stevens,
the Supreme Court held that police may search the passenger compartment of a
vehicle, incident to a recent occupant’s arrest (and therefore without a warrant)
only if it is reasonable to believe that the arrestee might access the vehicle at the
time of the search, or that the vehicle contains evidence of the offense of arrest.
Justice Scalia wrote a concurring opinion, stating that "we should simply abandon
the Belton-Thornton charade of officer safety and overrule those cases. 71 I would
hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the
object of the search is evidence of the crime for which the arrest was made, or of
another crime that the officer has probable cause to believe occurred."
In Com. v. White, the Court considered whether police lawfully searched
the defendant’s vehicle during the investigation of a drug transaction. Police had
advance knowledge of the drug activity and had secured warrants for some of the
participants’ homes and one of their cars. However, police had not sought a
warrant for the defendant’s car. The Supreme Court held that the search of White’s
vehicle could not be justified on any basis, including exigent circumstances under
the automobile exception, a search incident to arrest, or an inventory search. “In
holding that a warrantless vehicle search is not proper simply because the driver
or an occupant has been removed from the vehicle and placed in custody, the
White Court cautioned that exigent circumstances had the potential to change
matters: ‘[w]e do not propose to invalidate warrantless searches of vehicles where
the police must search in order to avoid danger to themselves or others, as might
occur in the case where police had reason to believe that explosives were present
in the vehicle. Emergencies such as this, however, are not part of this case.” 72
7.0. EXTENT OF SEARCHES CONDUCTED ON AUTOMOBILE EXCEPTIONS
The scope of a warrantless search of an automobile is not defined by the nature of the
container in which the contraband is hidden, “but by the object of the search and the
places in which there is probable cause to believe that it may be found. Just as probable
cause to believe that a stolen lawnmower may be found in a garage will not support a
69 556 U.S. 332 (2009)
70 Ibid
71 Ibid
72 Commonwealth v. Rosa, 734 A.2d 412, 415 (Pa. Super.1999), (2000), and appeal denied 561 Pa. 686,
751 A.2d 184 (2000) appeal denied 561 Pa. 693, 751 A.2d 189; Commonwealth v. Baker, 347 Pa. Super. 213,
500 A.2d 483 (1985), aff’d 518 Pa. 145, 541 A.2d 1381 (1988), (overruled on other grounds by Commonwealth
v. Rosario, 538 Pa. 400, 648 A.2d 1172 (1994)).
15
warrant to search an upstairs bedroom, probable cause to believe that undocumented
aliens are being transported in a van will not justify a warrantless search of a suitcase.
Probable cause to believe that a container placed in the trunk of a taxi contains
contraband or evidence does not justify a search of the entire cab.” 73
7.1. Containers and Personal Luggage
Cars have passengers’ compartments, glove compartments, trunks, and
items/bags/suitcases/envelopes/packages that occupants of the car carry or put next to
them or under their feet or in the trunk. Searches of containers found on the arrestee
or within the arrestee’s reach are valid, but once police have gained exclusive control
over the arrestee’s personal property, a later search of that property is generally not
valid as incident to arrest. In contrast, when the police make a valid arrest of the
“occupant” of a vehicle, they may search the passenger compartment and any
containers within it, even after they have exclusive control of the vehicle and its
contents. 74
In Commonwealth v. Runyan, the Superior Court, following Gary, held that if
a police officer had probable cause to search the vehicle at issue for contraband, the
officer was also permitted to search any container found therein where the contraband
could be concealed, including Appellee’s purse. 75 Also, in Commonwealth v.
Loughnane, the Supreme Court held that the automobile exception to the warrant
requirement recognized in Gary does not apply to vehicles parked in private
driveways. Subsequently, in Collins v. Virginia, the United States Supreme Court held
that the federal automobile exception “does not afford the necessary lawful right of
access to search a vehicle parked within a home or its curtilage because it does not
justify an intrusion on a person’s separate and substantial Fourth Amendment interest
in his home or curtilage.” 76
The scope of a warrantless search of an automobile is not defined by the
nature of the container in which the contraband is hidden, “but by the object of the
search and the places in which there is probable cause to believe that it may be found.
Just as probable cause to believe that a stolen lawnmower may be found in a garage
will not support a warrant to search an upstairs bedroom, probable cause to believe
that undocumented aliens are being transported in a van will not justify a warrantless
search of a suitcase. Probable cause to believe that a container placed in the trunk of a
taxi contains contraband or evidence does not justify a search of the entire cab.” 77 The
preceding contention the raises the question whether the Runyan decision is still good
law. Since the Scott case is more recent, the presumption is that the decision is the
current standing of the court regarding probable cause and searching other belongings
of an individual other than the property suspected to be holding illegal property.
7.2. Trunk, Glove Compartment
73 U.S. v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572 (1982).
74 Smith v. City of Chicago, 242 F.3d 737, 743 (7th Cir. 2001)
75 Commonwealth vs Runyan 160 A. 3d 831
76 Commonwealth v. Chesney, 2018 PA Super 262, 196 A.3d 253, 259 (2018), citing Collins v. Virginia,
138 S. Ct. 1663, 1672, 201 L. Ed. 2d 9 (2018) and Commonwealth v. Loughnane, 643 Pa. 408, 173
A.3d 733, 745 (2017).
77 Commonwealth v. Scott, 2019 PA Super 154, 210 A.3d 359, 365 (2019).
16
The scope of a warrantless search of an automobile is not defined by the
nature of the container in which the contraband is hidden, “but by the object of the
search and the places in which there is probable cause to believe that it may be found.
Just as probable cause to believe that a stolen lawnmower may be found in a garage
will not support a warrant to search an upstairs bedroom, probable cause to believe
that undocumented aliens are being transported in a van will not justify a warrantless
search of a suitcase. Probable cause to believe that a container placed in the trunk of a
taxi contains contraband or evidence does not justify a search of the entire cab.” 78
In Commonwealth v. Scott, based upon the odor of burnt marijuana emanating
from the vehicle, police officers had probable cause to search the passenger
compartment, including any containers found there, for the burnt marijuana. The
officers recovered a jar of marijuana as well as a blunt, which was the source of the
odor of burnt marijuana the officers had smelled. However, the officers then expanded
their search to include the vehicle’s trunk. The record provided no facts to support a
belief that additional contraband was located in the trunk. Nor did the officer indicate
that he had received any sort of special training to support this belief. Absent more,
the odor of burnt marijuana and a small amount of contraband recovered from the
passenger compartment of the vehicle did not create a fair probability that the officer
could recover additional contraband in the trunk. 79 7.3. Odour of Marijuana
In Commonwealth v. Scott, based upon the odor of burnt marijuana emanating
from the vehicle, police officers had probable cause to search the passenger
compartment, including any containers found there, for the burnt marijuana. The
officers recovered a jar of marijuana as well as a blunt, which was the source of the
odor of burnt marijuana the officers had smelled. However, the officers then expanded
their search to include the vehicle’s trunk. The record provided no facts to support a
belief that additional contraband was located in the trunk. Nor did the officer indicate
that he had received any sort of special training to support this belief. Absent more,
the odor of burnt marijuana and a small amount of contraband recovered from the
passenger compartment of the vehicle did not create a fair probability that the officer
could recover additional contraband in the trunk. 80
Since the passage of the Medical Marijuana Act, the courts have considered
whether probable cause may still be based solely on the detection of an odor of
marijuana in a vehicle. 81 In Commonwealth v. Barr, the Superior Court clarified that
“there is no preexisting, per se rule that the odor of marijuana is always sufficient to
establish probable cause to believe a crime is being committed. Rather, the existing
rule, properly stated, is that the odor of marijuana may alone be sufficient to establish
probable cause to search in particular factual contexts.” 82 However, even though the
Court raised the possibility that the odor of marijuana “might be” enough to establish
probable cause, “it is precisely because the police cannot discern lawful from
unlawful conduct by the odor of marijuana alone that the police may need to rely on
78 U.S. v Ross, 456 U.S. 79, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572 (1982)
79 Commonwealth v. Scott, 2019 PA Super 154, 210 A.3d 359, 365 (2019).
80 35 P.S. § 10231.101, enacted 2016, April 17, P.L. 84, No. 16, § 101, effective in 30 days [May 17,
2016]. Note that the Act includes a provision for the unlawful use of medical marijuana. 35 P.S. §
10231.304.
81 Commonwealth v. Scott, 2019 PA Super 154, 210 A.3d 359, 365 (2019).
82 Commonwealth v. Barr, 2020 PA Super 236, 240 A.3d 1263, 1276 (2020), appeal granted, 1661050 (Pa, 2021)
17
other circumstances to establish probable cause to believe that the possession of
marijuana detected by that odor is criminal.” 83
7.3. Use of Drugs
Some courts are of the view that the presence of a personal-use number of drugs
in the passenger compartment of a motor vehicle would only give the officer probable
cause to search the passenger compartment but not the trunk. For example, in
Wimberly v. Superior Court of San Bernardino County 84 officers stopped a motorist
for driving erratically. The officers approached the stopped vehicle and saw a
smoking pipe next to 12 round seeds on the floor of the vehicle. The officers smelled
the odour of burnt marijuana emanating from inside the car, and upon examining the
pipe, they found burnt marijuana residue in the pipe bowl. The officers searched the
interior of the car and found a plastic bag containing a small quantity of marijuana in
the pocket of a coat.
The officers used the car keys to open the trunk of the car where they found
several pounds of marijuana and hashish in a suitcase in the trunk. The California
Supreme Court ruled that the officers had probable cause to search the passenger
compartment of the vehicle upon observing the marijuana seeds in close proximity to
the smoking pipe on the floor of the vehicle. The court, however, also ruled that the
erratic driving, the observation of the marijuana seeds adjacent to the smoking pipe,
the odour of burnt marijuana, the burnt residue in the pipe, and the small quantity of
marijuana secreted in the jacket indicated only that the defendants were casual users
of marijuana. The court determined that it was not reasonable for the officer to infer
that casual drug users would have additional contraband hidden in the trunk. Because
the court found that the officers did not have probable cause to search the trunk, the
court suppressed the evidence found in the trunk.
The Wimberly decision represents a minority of courts. In most courts, if there
is physical evidence of drugs found in the passenger compartment of the vehicle, even
if it is only a personal-use amount, that will be sufficient to establish probable cause
that more drugs could be found in the trunk of that vehicle. 85 For example, in United
States v. Turner, a U.S. Park Police officer stopped a motorist for failing to display a
front license on his vehicle. 86 When the defendant rolled down the window of the
vehicle, the officer noticed a strong odor of burnt marijuana. The driver produced a
temporary registration but could not produce a driver’s license. The officer saw torn
pieces of cigar tobacco in the defendant’s lap and on the floor at his feet. The officer
knew that marijuana and use them as a receptacle for smoking marijuana. The officer
also observed on the floor directly behind the driver’s seat a clear plastic bag of green
weed-like material, which he believed to be marijuana. The officer asked for the keys
to the car, which he used to open the trunk. The officer searched the trunk where he
found $825 in small bills and a 62-gram chunk of cocaine base. The defendant argued
that the officer only had information that he was a marijuana user and that there was
not sufficient evidence to establish probable cause that there would be more drugs in
the trunk of the vehicle. The U.S. Court of Appeals for the District of Columbia
83 Commonwealth v. Barr, 2020 PA Super 236, 240 A.3d 1263, 1286 (2020), appeal granted, 2021 WL
1661050 (Pa. 2021).
84 547 P.2d 417 (Cal. 1976). See also Burkett v. State, 607 S.W.2d 399 (Ark. 1980)
85 United States v. Burnett, 791 F.2d 64, 65 (6th Cir. 1986).
86 119 F.3d 18 (D.C. Cir. 1997)
18
Circuit disagreed with the defendant’s argument and ruled that there was probable
cause to believe that the defendant would have additional drugs in his trunk.
Further, in Com. v. White, the Court considered whether police lawfully
searched the defendant’s vehicle during the investigation of a drug transaction. Police
had advance knowledge of the drug activity and had secured warrants for some of the
participants’ homes and one of their cars. However, police had not sought a warrant
for the defendant’s car. The Supreme Court held that the search of White’s vehicle
could not be justified on any basis, including exigent circumstances under the
automobile exception, a search incident to arrest, or an inventory search. “In holding
that a warrantless vehicle search is not proper simply because the driver or an
occupant has been removed from the vehicle and placed in custody, the White Court
cautioned that exigent circumstances had the potential to change matters: ‘[w]e do not
propose to invalidate warrantless searches of vehicles where the police must search in
order to avoid danger to themselves or others, as might occur in the case where police
had reason to believe that explosives were present in the vehicle. Emergencies such as
this, however, are not part of this case.” 87
In Hernandez, the Court concluded that there was no evidence to support
police claims of the potential for danger from a second person. The Court also
rejected the Commonwealth’s suggestion that that the police acted properly because
there is a high level of violence associated with the drug trade and those involved in
the drug trade are known to frequently be armed. Although the Court agreed that such
a claim might supply a rationale for why police would be concerned that the
defendant posed a danger, it failed to demonstrate the logic of believing a second
person was present in the truck. 88
7.4. Stop and Frisk
Once a vehicle has been lawfully stopped for a traffic violation, it is not an
unreasonable intrusion to order the driver and passengers out of the car, or to look
inside the vehicle and ask the driver for identification and information about the car. 89
Once the person produces a valid driver’s license and registration, however, the driver
must be allowed to proceed on his way without being subject to further delay. In order
to justify detaining the driver for additional questioning, the officer must have a
reasonable suspicion of illegal transactions in drugs or of other serious criminal
activity. 90
An officer may also order a passenger out of a vehicle if the officer has a
reasonable suspicion that the passenger is involved in criminal activity or that the
passenger is armed and dangerous. 91 However, the frisk of a person after a valid traffic
87 Commonwealth v. Rosa, 734 A.2d 412, 415 (Pa. Super.1999), (2000), and appeal denied 561 Pa. 686,
751 A.2d 184 (2000) appeal denied 561 Pa. 693, 751 A.2d 189
88 Com. v. Hernandez, 594 Pa. 319, 333, 329, 935 A.2d 1275, 1283 (2007).
89 Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980); Commonwealth v. Rosa, 734 A.2d
412 (Pa. Super.1999), appeal denied 561 Pa. 693, 751 A.2d 189 (2000) and appeal denied 561 Pa. 686, 751
A.2d 184 (2000); Commonwealth v. Bable, 286 Pa.Super. 203, 428 A.2d 643 (1981); Commonwealth
v. Sojourner, 268 Pa. Super. 472, 408 A.2d 1100 (1978)
90 Commonwealth v. Shelly, 703 A.2d 499 (Pa. Super.1997); Commonwealth v. Lopez, 415 Pa. Super.
252, 609 A.2d 177 (1992). See also § 19:37
91 Commonwealth v. Rosa, 734 A.2d 412 (Pa. Super.1999), appeal denied 561 Pa. 693, 751 A.2d 189
(2000) and appeal denied 561 Pa. 686, 751 A.2d 184 (2000); Commonwealth v. Rodriguez, 695 A.2d
864 (Pa. Super.1997); Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988).
19
stop is unreasonable if there is no suspicious conduct from which the police could
reasonably conclude that the person is armed and a threat to the officer’s safety. 92
Just as an officer may order a passenger out of a vehicle, an officer may order
a passenger of a lawfully stopped vehicle to remain inside or to get back into the
vehicle. A forcible stop of a motor vehicle by a police officer constitutes a seizure of
the driver and passengers. Although justification for a traffic stop most often derives
from the driver, police are not required to provide a passenger with “actual notice”
that he must remain where he is. Without question, when police conduct a traffic stop
using their emergency equipment, lights and sirens, a reasonable person would not
believe that he was free to leave. A legal stop and frisk of a driver seen trying to
conceal a weapon may justify a frisk of the passenger as well. 93
8.0. EXPECTATION OF PRIVACY OF VARIOUS STATESPENNSYLVANIA ON
THE AUTOMOBILE EXCEPTION
8.1. Pennsylvania Commonwealth Expectations for Automobile
Exception
An individual operating an automobile has an expectation of privacy in the security of
his automobile against unreasonable searches and seizures, 1 but under the Fourth
Amendment that expectation of privacy is diminished by qualities unique to the
automobile. 94 Under Pa.Const. Art. 1, § 8, however, the protections afforded an
automobile are greater.Under the “automobile exception” to the warrant requirement
recognized under the United States Constitution, the significant differences between
automobiles and other property permit warrantless searches of automobiles under
circumstances in which a warrantless search would otherwise be deemed
unreasonable. Probable cause is still required, but exigent circumstances are not,
because the car is mobile and the opportunity for a search is often fleeting, and
because there is a lesser expectation of privacy. 95
In Commonwealth v. Gary, the Pennsylvania Supreme Court held that the law
governing warrantless searches of motor vehicles in Pennsylvania is coextensive with
federal law under the Fourth Amendment. 96 In Commonwealth v. Alexander, the
Supreme Court overruled the bright line rule announced in Gary after an extensive
92 Commonwealth v. Collini, 264 Pa. Super. 36, 398 A.2d 1044 (1979). See also Commonwealth v.
Chamberlain, 332 Pa. Super. 108, 480 A.2d 1209 (1984). See §§ 19:39 and 19:40 for a more extensive
discussion of frisks.
93 See, e.g., Commonwealth v. Chamberlain, 332 Pa. Super. 108, 480 A.2d 1209 (1984); United States
v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).
94 2 Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Commonwealth v.
Long, 489 Pa. 369, 414 A.2d 113 (1980); Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988
(1991); Commonwealth v. Elliot, 416 Sc.D. 499, 611 A.2d 727 (1992).
95 South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Texas v.
White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975); Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct.
2464, 41 L. Ed. 2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706
(1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Com.
v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988)
96 Com. v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (overruled by, Commonwealth v. Alexander, 243
A.3d 177 (Pa. 2020)).
20
precedential analysis of Article I, Section 8 and its historic link to privacy and the
greater protections privacy demands when an automobile search is at issue. 97
Moreover, the status of the “limited” automobile exception under Article 1, §
8 generated debate among the members of the Pennsylvania Supreme Court, a number
of whom would have adopted the federal standard. 98 Until Gary, the Court held that
Article 1, § 8 required the existence of probable cause and exigent circumstances in
order for the warrantless search of an automobile to take place. What constituted
“exigent circumstances” was determined on a case-by-case basis. 99
Furthermore, the Pennsylvania Supreme Court has invalidated police stops of
motor vehicles when the stop was routine, 22 or based on an “unusual look” by the
driver. 100 Although a violation of the seat belt law does not constitute probable cause
to stop a vehicle since a seat belt infraction may only be charged with another offense,
an otherwise legal checkpoint may be conducted, in part, to check seat belts. 101
Stopping a defendant’s vehicle because an officer observed an air freshener hanging
from the rear-view mirror was improper. 102 If a vehicle in motion is stopped before the
officer observes an equipment violation, the officer must have probable cause to
conduct the stop. 103 In Commonwealth v. Long, the Pennsylvania Supreme Court held
that such searches may violate the Pennsylvania Constitution. 104 However, the
decision in Long predated the ruling in Ross, and the Ross standard has frequently
been cited with approval by Pennsylvania’s courts. 105
Moreover, When the exigent circumstances requirement was met under
Pennsylvania’s automobile exception, and when the police officer’s lawful seizure of
marijuana in plain view from a defendant’s vehicle brought into plain view cocaine
located inside an open duffle bag in the passenger compartment, the warrantless
seizure of the cocaine was likewise lawful under the plain view exception. The officer
(1) viewed the cocaine from a lawful vantage point, (2) the criminal nature of the
cocaine was immediately apparent, and (3) the officer had a lawful right of access to
the interior of the vehicle. A new set of exigent circumstances was not required. 106
Further, in Pennsylvania, the police cannot conduct a warrantless
administrative search of a vehicle to advance a criminal investigation under the
97 Commonwealth v. Alexander, 243 A.3d 177, 208 (Pa. 2020)
98 See, e.g., the dissenting opinion of Castille, J., in Com. v. Hernandez, 594 Pa. 319, 935 A.2d 1275,
1285 (2007), and the concurring opinion of Saylor, J., joined by Eakin, J., Hernandez, 935 A.2d at
1290. See also Com. v. McCree, 592 Pa. 238, 924 A.2d 621 (2007) (Opinion Announcing the Judgment
of the Court).
99 Com. v. Hernandez, 594 Pa. 319, 935 A.2d 1275, 1281 (2007) (Potential danger to police
or the public satisfies the exigency requirement for warrantless vehicle searches in Pennsylvania.);
Com. v. Brown, 2011 PA Super 67, 23 A.3d 544 (2011)
100 Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974); Commonwealth v. Brown, 228
Sc.D. 158, 323 A.2d 104 (1974). See also Commonwealth v. Talley, 430 Sc.D. 351, 634 A.2d
640 (1993)
101 In re J.A.K., 2006 PA Super 256, 908 A.2d 322 (2006).
102 Commonwealth v. Benton, 440 Sc.D. 441, 655 A.2d 1030 (1995). See also Commonwealth v.
Felty, 443 Sc.D. 559, 662 A.2d 1102 (1995)
103 Commonwealth v. Steinmetz, 440 Sc.D. 591, 656 A.2d 527 (1995). See also Commonwealth v.
Steinmetz, 440 Sc.D. 591, 656 A.2d 527 (1995)
104 Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980)
105 Commonwealth v. Jenkins, 401 Sc.D. 580, 585 A.2d 1078 (1991)
106 Com. v. Liddie, 2011 PA Super 104, 21 A.3d 229, 235–236 (2011)
21
pretext of addressing a specific, compelling governmental interest advanced by a
statutory scheme. 107 Thus, although exigent circumstances permitted officers to enter a
truck for the limited purpose of checking equipment to prevent further harm, the
search and seizure of the defendant’s logbook and bags from the cab of the truck were
not necessary to further a statutory scheme under Pennsylvania or federal law, and the
closely regulated business exception to the warrant requirement did not apply to the
facts of the case. 108
Moreover, under Pennsylvania law, a defendant charged with a possessory
offense has automatic standing to challenge a search. However, in order to prevail, the
defendant must show, as a preliminary matter, that he had a privacy interest in the
area searched. 109 Also, Pennsylvania law makes clear that there is no legally
cognizable expectation of privacy in a stolen automobile, and the courts have declined
to extend an expectation of privacy to an abandoned vehicle. 110 The act of driving or
operating a stopped vehicle may establish a legitimate privacy interest in the vehicle
where no evidence to the contrary exists. 111 In addition to the fact that a defendant was
clearly operating the vehicle at the time it was stopped, uncontradicted testimony
established that he vigorously objected to being stopped by police. The defendant was
alone in the vehicle, and made no attempt to flee when stopped. The totality of these
facts, and the absence of any facts tending to prove otherwise, adequately
demonstrated that the defendant possessed a reasonable expectation of privacy in the
vehicle he was driving. 112
A defendant was unable to establish a legitimate expectation of privacy in an
automobile when he did not own the vehicle, the vehicle was not registered in his
name, and when the defendant offered no evidence that he was using the vehicle with
the authorization or permission of the registered owner. 113
107 Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999) (closely regulated business exception to
warrant requirement inapplicable), aff’g 696 A.2d 817 (Pa. Super.1997). See also § 19:4, Administrative
Searches.
108 Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999) (harmless error). See also § 19:4,
Administrative Searches.
109 Com. v. Burton, 2009 PA Super 87, 973 A.2d 428, 436 (2009) (en banc). See also § 19:47, Motor
vehicle searches. Com. v. Cruz, 21 A.3d1247 (Pa. Super.2011).
110 Com. v. Burton, 2009 PA Super 87, 973 A.2d 428, 435 (2009) (end banc), citing Com. v. Jones,
2005 PA Super 166, 874 A.2d 108, 118 (2005).
111 Com. v. Newman, 2014 PA Super 2, 84 A.3d 1072, 1078 (2014).
112 Com. v. Newman, 2014 PA Super 2, 84 A.3d 1072, 1077–1078 (2014).
113 Com. v. Burton, 2009 PA Super 87, 973 A.2d 428, 436 (2009) (en banc)
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