Commonwealth v. Gary,

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtJustice McCAFFERY.
Citation91 A.3d 102
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Shiem GARY, Appellee.
Decision Date29 April 2014

91 A.3d 102

COMMONWEALTH of Pennsylvania, Appellant
v.
Shiem GARY, Appellee.

Supreme Court of Pennsylvania.

Argued March 5, 2013.
Decided April 29, 2014.


[91 A.3d 104]


Hugh J. Burns Jr., Esq., Grady John Gervino, Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

Kathleen E. Martin, Esq., Levant, Martin & Tauber, P.C., Pottstown, Alan J. Tauber, Esq., Lindy & Tauber, Philadelphia, for Shiem Gary.


David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, Philadelphia, Leonard Sosnov, Esq., Harrisburg, for PA Association of Criminal Defense Lawyers.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE, MELVIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

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 Shiem 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

[91 A.3d 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, 748 A.2d 207, 211 (Pa.Super.2000)). 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, 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

[91 A.3d 106]

“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 (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 (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. 1253, 2 L.Ed.2d 1514 (1958) (“The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.”); Commonwealth v. Waltson, 555 Pa. 223, 724 A.2d 289, 292 (1998) (citing Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 897–98 (1991) for the proposition that “this Court has held that embodied in Article I, Section 8 is a strong notion of privacy, which is greater than that of the Fourth Amendment”); Commonwealth v. Gordon, 546 Pa. 65, 683 A.2d 253, 257 (1996) (reiterating

[91 A.3d 107]

that legitimate expectations of privacy are protected by Article I, Section 8); Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 87 (1988) (reiterating that “Article I, § 8 creates an implicit right to privacy in this Commonwealth”), grant of habeas corpus on a separate issue affirmed by Blystone v. Horn, 664 F.3d 397 (3d Cir.2011); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978) (“[T]he acknowledged touchstone of the Fourth Amendment [is] to protect one's reasonable expectations of privacy.”).

As a general rule, for a search to be reasonable under the Fourth Amendment or Article I,...

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25 practice notes
  • Commonwealth v. Arter, No. 63 MAP 2015
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2016
    ...are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 106 (2014) (citation omitted). In reviewing questions of law, our standard of review is de novo and our scope of review is plenary. Weaver ......
  • Commonwealth v. Loughnane, No. 72 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 22, 2017
    ...the Superior Court erred by holding that the federal automobile exception, adopted by this Court in Commonwealth v. Gary, 625 Pa. 183,91 A.3d 102 (2014),1 permitted the seizure of Loughnane's truck while it was parked in his residential driveway. Commonwealth v. Loughnane, 128 A.3d 806, 817......
  • State v. Storm, No. 16-0362
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...have construed their state constitutions to allow greater protection than the Fourth Amendment. See Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102, 126 (2014) ("[A] generally enhanced concern for individual privacy" does not "translate[ ] into a conferral of increased privacy protection in......
  • State v. Gaskins, No. 13–1915.
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2015
    ...search of the vehicle because it is far from clear which course constitutes the greater intrusion.Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 137 (2014) ; see also Acevedo, 500 U.S. at 577, 111 S.Ct. at 1990, 114 L.Ed.2d at 632 (promulgating a rule for the warrantless search of vehicles......
  • Request a trial to view additional results
25 cases
  • Commonwealth v. Arter, No. 63 MAP 2015
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2016
    ...are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 106 (2014) (citation omitted). In reviewing questions of law, our standard of review is de novo and our scope of review is plenary. Weaver ......
  • Commonwealth v. Loughnane, No. 72 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 22, 2017
    ...the Superior Court erred by holding that the federal automobile exception, adopted by this Court in Commonwealth v. Gary, 625 Pa. 183,91 A.3d 102 (2014),1 permitted the seizure of Loughnane's truck while it was parked in his residential driveway. Commonwealth v. Loughnane, 128 A.3d 806, 817......
  • State v. Storm, No. 16-0362
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...have construed their state constitutions to allow greater protection than the Fourth Amendment. See Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102, 126 (2014) ("[A] generally enhanced concern for individual privacy" does not "translate[ ] into a conferral of increased privacy protection in......
  • State v. Gaskins, No. 13–1915.
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2015
    ...search of the vehicle because it is far from clear which course constitutes the greater intrusion.Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 137 (2014) ; see also Acevedo, 500 U.S. at 577, 111 S.Ct. at 1990, 114 L.Ed.2d at 632 (promulgating a rule for the warrantless search of vehicles......
  • Request a trial to view additional results

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