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

MosesBy Burt Rose

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COMMONWEALTH OF PENNSYLVANIA, Appellant v. SHIEM GARY, Appellee, No. 26 EAP 2012 (4/29/14):


This was an appeal by the Philadelphia DA’s Office from an Order of the Superior Court, 3080 EDA 2010, 29 A.3d 804 (Pa.Super. 2011).




The issues were:


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?


Should the Court adopt the federal automobile exception to the warrant requirement?


The Court held that with respect to a warrantless search of a motor vehicle that is supported by probable cause, Article I, Section 8 of the Pennsylvania Constitution affords no greater protection than the Fourth Amendment to the United States Constitution. Accordingly, the Court agreed to adopt the federal automobile exception to the warrant requirement and stated:


“Therefore, we hold that, in this Commonwealth, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engendersconstitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field.” (emphasis supplied by me)


Chief Justice Castille and Justice Eakin joined the opinion. Justice Saylor filed a concurring opinion. Justice Todd filed a dissenting opinion in which Justice Baer joined.


Kathleen E. Martin, Esq. and Alan Tauber, Esq. represented the Appellee.


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