A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

In 2011, a panel of the Superior Court of Pennsylvania had reversed a decision of the Court of Common Pleas, Philadelphia County, Criminal Division, No. MC–51–CR–0002245–2010 (Judge Palumbo) in the matter of COMMONWEALTH of Pennsylvania v. Shiem GARY, Appellant, 29 A.3d 804 (Sept. 27, 2011).

The facts were that two Philadelphia police officers were on patrol in the area of 58th and Florence Streets when they observed the Appellant operating a sports-utility vehicle on 58th Street. Because the vehicle had heavily tinted windows, the officers pulled the Appellant over for investigation. While approaching the vehicle, the officers noticed a strong odor of unburnt marijuana emanating from the vehicle. The officer asked the Appellant if there was anything in the vehicle that the officers needed to be worried about and the Appellant replied that there was some “weed” in the car. The officers then removed the Appellant from the vehicle and placed him in the back of the police cruiser. The officer and his K–9 dog began to walk around the Appellant’s vehicle. While this was occurring, a car door opened and the Appellant was seen running southbound on 58th Street. The dog quickly apprehended the Appellant, and he was placed back into the police car. After this, the officers recovered a blue and yellow plastic bag containing approximately two pounds of marijuana from underneath the hood of the Appellant’s vehicle. There was no search warrant.

Following his conviction in the Philadelphia Municipal Court of possession of marijuana and possession of marijuana with intent to deliver, Gary sought a writ of certiorari from Judge Palumbo but relief was denied. In his opinion in support of the denial of the writ of certiorari, the lower court found that the warrantless search which followed the stop was lawful because the police had no advance warning that the Appellant’s vehiclewould be stopped and would be part of a criminal investigation. The court ruled that an exigency existed for this reason. Furthermore, the trial court stated that because the Appellant may have been permitted to return to his vehicle and drive away with the contraband, a warrantless search was necessary to preserve the evidence.

The Superior Court disagreed and ruled that the Commonwealth was required to show either some potential for danger to the police or others, or the possibility of the dissipation of evidence unless there was an immediate warrantless search. The circumstances in this case did not evidence an imperative need for prompt police action; neither the lack of advance warning of criminal activity nor any other factor resulted in a threat of danger or dissipation of evidence. Thus, where no exigent circumstances were present, the warrantless search was deemed unlawful and the evidence obtained from that search should have been suppressed.

However, as of May 14, 2012, the Supreme Court of Pennsylvania has granted the Commonwealth’s Petition for Allowance of Appeal, as per 622 EAL 2011, 2012 WL 1662049. The two issues to be resolved are the following:

1.    Were the police permitted to conduct a warrantless search of defendant’s SUV for marijuana where, during a traffic stop, they could smell marijuana emanating from the vehicle, defendant informed police that he had marijuana in the SUV, and the officers had not had the opportunity to obtain a warrant prior to stopping the vehicle?

2.    Should this Court adopt the federal automobile exception to the warrant requirement?

Attorney Kathleen E. Martin of Levant, Martin & Tauber represents the Appellant.

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