91 A.3d 102 (Pa. 2014), 26 EAP 2012, Commonwealth v. Gary

Docket Nº:26 EAP 2012
Citation:91 A.3d 102
Opinion Judge:MR. JUSTICE McCAFFERY
Party Name:COMMONWEALTH OF PENNSYLVANIA, Appellant v. SHIEM GARY, Appellee
Attorney:For Commonwealth of Pennsylvania, Appellant: Hugh J. Burns Jr., Esq.; Grady John Gervino, Esq. Philadelphia District Attorneys Office. For Shiem Gary, Appellee: Kathleen E. Martin, Esq., Levant., Martin & Tauber, P.C.; Alan J. Tauber, Esq., Lindy & Tauber. For PA Association of Criminal Defense L...
Judge Panel:JUDGES: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Mr. Justice Eakin join the opinion. Mr. Justice Saylor files a concurr...
Case Date:April 29, 2014
Court:Supreme Court of Pennsylvania
 
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Page 102

91 A.3d 102 (Pa. 2014)

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

SHIEM GARY, Appellee

No. 26 EAP 2012

Supreme Court of Pennsylvania

April 29, 2014

Argued March 5, 2013

Page 103

Appeal from the Order of the Superior Court, No. 3080 EDA 2010.

Appeal from the Judgment of Superior Court entered on September 27, 2011 at No. 3080 EDA 2010 reversing and remanding the Order entered on September 28, 2010 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. MC-51-CR-0002245-2010. Trial Court Judge: Frank Palumbo, Judge. Intermediate Ct. John L. Musmanno, Judge, Christine Donohue, Judge, Robert E. Colville, Judge. 2011 PA Super. 206, 29 A.3d 804 (Pa.Super. 2011).

For Commonwealth of Pennsylvania, Appellant: Hugh J. Burns Jr., Esq.; Grady John Gervino, Esq. Philadelphia District Attorneys Office.

For Shiem Gary, Appellee: Kathleen E. Martin, Esq., Levant., Martin & Tauber, P.C.; Alan J. Tauber, Esq., Lindy & Tauber.

For PA Association of Criminal Defense Lawyers, Appellee Amicus Curiae: David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg; Leonard Sosnov, Esq.

JUDGES: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Mr. Justice Eakin join the opinion. Mr. Justice Saylor files a concurring opinion. Madame Justice Todd files a dissenting opinion in which Mr. Justice Baer joins. MADAME JUSTICE TODD. Mr. Justice Baer joins this dissenting opinion.

OPINION

Page 104

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MR. JUSTICE McCAFFERY

In this case, we again address the requirements in this Commonwealth for a warrantless search of a motor vehicle. After consideration of relevant federal and state law, we now hold 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, we adopt the federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of a motor vehicle.

On January 15, 2010, Philadelphia Police Officers Baker and Waters were on patrol in their marked car in the area of North 58th Street and Florence Avenue when they observed Sheim Gary (Appellee) driving an SUV with heavily tinted windows. Believing that the level of tint in the windows violated Pennsylvania's Motor Vehicle Code, the officers stopped and approached the SUV. As they did so, they noticed the smell of marijuana emanating from the passenger and driver sides of the vehicle. When Officer Baker asked Appellee if there was anything in his vehicle that the officers " need [to] know about," Appellee responded that there was some " weed." The officers removed Appellee from the SUV, placed him in the police cruiser, and summoned the canine unit. As Police Officer Snyder and his dog, Leo, began to walk around the SUV, Appellee got out of the police cruiser and started running from the scene. With Leo's help, the officers apprehended Appellee and returned him to the police cruiser. The search of Appellee's SUV yielded approximately two pounds of marijuana, found under the front hood in a bag lodged next to the air filter. Opinion of Court of Common Pleas, dated 12/15/10, at 2; Notes of Testimony

Page 105

(" N.T." ) Suppression Hearing, 4/28/2010, at 6-11; N.T. Hearing, 6/4/10, at 11-13 (Municipal Court summary of facts of the case). Appellee was arrested and charged with possession of a controlled substance and possession with intent to deliver.1

In Philadelphia Municipal Court, Appellee moved to suppress the marijuana recovered from his vehicle, arguing that the warrantless search was illegal because it was not supported by probable cause and was not necessitated by exigent circumstances. The court conducted a hearing on Appellee's suppression motion on April 28, 2010, and on June 4, 2010, the court held that the warrantless search was valid because it was justified by both probable cause and exigent circumstances. More specifically, the court held that probable cause was " strong" based on the " plain smell" of the marijuana emanating from Appellee's SUV. With respect to exigent circumstances, the court found that police had no advance warning that Appellee's vehicle would be stopped or that there would be probable cause to search the vehicle for contraband. The court also determined that Appellee was in custody and that the police were in control of his vehicle at the time of the search, but these determinations did not undermine the court's finding of exigency. N.T. Hearing, 6/4/10, at 13-15. Accordingly, the municipal court denied Appellee's suppression motion, and the marijuana was admitted into evidence. Following a stipulated trial, Appellee was found guilty of both charges and was sentenced to four years' reporting probation.

Appellee filed a petition for a writ of certiorari with the court of common pleas. Following oral argument on September 28, 2010, the court denied the writ. The court observed that a warrantless search of an automobile is permissible where there is both probable cause to search and exigent circumstances necessitating a search. Opinion of Court of Common Pleas, dated 12/15/10, at 3 (citing Commonwealth v. Casanova, 2000 PA Super. 34, 748 A.2d 207, 211 (Pa.Super. 2002)). In finding probable cause to search, the common pleas court noted the " plain smell" of the marijuana emanating from the vehicle, as well as Appellee's flight from the scene. Id. at 5-6. In addition, the court concluded that the following factors constituted exigent circumstances: (1) the lack of advance warning to police that Appellee's vehicle would be stopped and would be part of a criminal investigation; (2) the need for the officers to act quickly to seize contraband from the vehicle; and (3) the determination that Appellee was not under arrest before the search occurred and thus might have been permitted to return to his vehicle and drive away with the contraband. Id. at 6.

Appellee appealed to the Superior Court, contending that the warrantless search of his vehicle was unlawful because it was conducted in the absence of any recognized exception to the warrant requirement. Appellee's Statement of Matters Complained of on Appeal, dated 11/22/10, at 1.2 The Superior Court reversed the order denying Appellee's petition for writ of certiorari, and remanded for a trial without the admission of the seized marijuana. Commonwealth v. Gary, 2011 PA Super. 206, 29 A.3d 804, 808 (Pa.Super. 2011). Citing the municipal court's finding that Appellee was in police custody prior to the search, the Superior Court concluded that

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" 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 of record resulted in a threat of danger or dissipation of evidence." Id. at 808.

This Court granted the Commonwealth's petition for allowance of appeal to address the following issues, as stated by the Commonwealth:

a. 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?

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

Commonwealth v. Gary, 615 Pa. 610, 44 A.3d 1146 (Pa. 2012) (per curiam).

In a case such as this where the trial court denied a suppression motion, our standard of review is well-established.

We may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Russo, 594 Pa. 119, 934 A.2d 1199, 1203 (Pa. 2007) (citations omitted).

The issues presented implicate the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, which provide, respectively, as follows:

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. Constitution, Amend. IV.

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 Constitution Art. I, § 8.

The primary objective of the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution is the protection of privacy. Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (stating that the " principal object of the Fourth Amendment is the protection of privacy" ); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct....

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