Lead Opinion
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
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 Appel-lee if there was anything in his vehicle that the officers “need [to] know about,” Appel-lee 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
In Philadelphia Municipal Court, Appel-lee 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,
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 l.
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 pri- or to stopping the vehicle?
b. Should this Court adopt the federal automobile exception to the warrant requirement?
Commonwealth v. Gary,
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 un-contradicted 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,
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,
As a general rule, for a search to be reasonable under the Fourth Amendment or Article I, Section 8, police must obtain a warrant, supported by probable cause and issued by an independent judicial officer, prior to conducting the search. This general rule is subject to only a few delineated exceptions, including the existence of exigent circumstances. See Horton v. California,
One exception to the warrant requirement, the precise parameters of which have evolved over time based on decisional law from the U.S. Supreme Court and from this Court, concerns searches and seizures of automobiles. See, e.g., California v. Carney,
At the outset, it is important to recognize that this Court may extend greater protections under the Pennsylvania Constitution than those afforded under the U.S. Constitution. However, we should do so only where our own independent state constitutional analysis indicates that a distinct standard should be applied. Commonwealth v. Edmunds,
The automobile exception was first set forth by the United States Supreme Court in Carroll v. United States, 267 U.S. 132,
Carroll emphasized the constancy of the requirement for a finding of probable cause to search, but permitted law enforcement officers to make that determination under certain circumstances.
In cases where the securing of a warrant is reasonably practicable, it must be used.... In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully ... unless he can show the court probable cause.
Id. at 156,
Subsequent cases from the high Court made explicitly clear that the impracticability of obtaining a warrant to search an automobile in transit with illicit goods con
For example, in the oft-cited case Chambers v. Maroney,
Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and [in Chambers ], if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.
Chambers, supra at 50-51,
After determining that the car “could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search,” the Chambers Court concluded that “there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Id. at 52,
The high Court relied on and further clarified Chambers’s holding in Michigan v. Thomas,
In Chambers [ ], we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a war-rantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White,423 U.S. 67 ,96 S.Ct. 304 ,46 L.Ed.2d 209 (1975). See also United States v. Ross,456 U.S. 798 , 807, n. 9,102 S.Ct. 2157 , 2163, n. 9,72 L.Ed.2d 57 [572] (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.
Thomas,
Thus, while a vehicle’s ready mobility was the original justification for the automobile exception to the warrant requirement, the U.S. Supreme Court subsequently broadened this justification to encompass those situations where the vehicle was in police custody and thus was immobilized.
To support further its broadened automobile exception, the U.S. Supreme Court articulated a second justification for the warrantless search of a motor vehicle, to wit, the diminished expectation of privacy in a motor vehicle as compared to a residence or office, due to the pervasive governmental regulation of, and local law enforcement’s extensive contact with, motor vehicles. See, e.g., Cady v. Dombrowski,
[Although ready mobility alone was perhaps the original justification for the vehicle exception [to the warrant requirement], our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception ... are twofold. Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.
Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception.
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These reduced expectations of privacy derive ... from the pervasive regulation of vehicles capable of traveling on the public highways.
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The public is fully aware that it is accorded less privacy in its automobiles*111 because of this compelling governmental need for regulation.... In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches -without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.
Carney, supra at 391-92,
The Carney Court invoked both the ready mobility and the reduced privacy justifications to hold that a warrantless search, based on probable cause, of a fully mobile motor home parked in a public lot did not violate the Fourth Amendment, explaining its reasoning as follows:
[Whether] a vehicle is being used on the highways, 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 regulations inapplicable to a fixed dwelling.
Id. at 392-93,
The high Court relied upon both justifications to reach its holding in South Dakota v. Opperman,
First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. ... [Second,] the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.
Id. at 367,
More recently, the high Court has made it expressly and unmistakably clear that application of the automobile exception to the requirement for a search warrant requires only a finding of probable cause and not a separate, distinct, or additional finding of exigency. In other words, the only exigency required under federal law for application of the automobile exception is the inherent ready mobility of a motor vehicle. See Maryland v. Dyson,
As will be discussed in more detail, infra, the high Court in Labron corrected a misconception of this Court that, under the Fourth Amendment, the automobile exception was limited to cases in which “unforeseen circumstances involving the search of an automobile are coupled with the presence of probable cause.” Labron,
If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment [] per*112 mits police to search the vehicle without more.
Id. at 940,
Similarly, in Maryland v. Dyson,
As we recognized nearly 75 years ago in Camll [ ], there is an exception to [the warrant requirement of the Fourth Amendment] for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross,456 U.S. 798 , 809, 102 S.Ct: 2157,72 L.Ed.2d 572 (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” In ... [Labron, supra at 940,116 S.Ct. 2485 ], we repeated that the automobile exception does not have a separate exigency requirement: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more.”
Dyson, supra at 466-67,
Thus, there has been an evolution of the high Court’s jurisprudence concerning the automobile exception to the warrant requirement. While the early holdings of Carroll and Chambers relied on the impracticability of obtaining a warrant for a motor vehicle in transit with contraband or evidence of a crime, more recent cases from the high Court have made clear that the impracticability of obtaining a warrant, unforeseen events, or any other exigent circumstances — beyond the inherent ready mobility of a motor vehicle — are not required for application of the automobile exception to the warrant requirement. As the high Court stated in Dyson, supra at 466-67,
We turn now to Pennsylvania jurisprudence concerning the automobile exception. In some cases from this Court, the defendant’s challenge to a vehicular search and/or seizure was raised only under the Fourth Amendment. In other cases, it is not clear from our opinions whether the defendant’s challenge was grounded in the Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution, or both. As we develop infra, the unmistakable implication from our cases until the mid-1990’s is that this Court considered the federal and state Constitutions coterminous with regard to application of the automobile exception to the warrant requirement. See Commonwealth v. Perry,
[C]ertainly an automobile is not per se unprotected by the warrant procedure of the Fourth Amendment. Although it sometimes may be reasonable to search a movable vehicle without a warrant, the movability of the area to be searched is not alone a sufficiently “exigent circumstance” to justify a warrantless search. Other circumstances, for instance a serious possibility that the movable vehicle may, in fact, be moved before a warrant can be obtained, are necessary. In this ease, the possibility that [the defendant-appellant’s] car would be moved is purely conjectural.
Id. at 384 (emphasis in original). Importantly, this Court’s holding in Cockfield was grounded solely in the Fourth Amendment and interpretative precedent from the U.S. Supreme Court; neither the Pennsylvania Constitution nor precedent from this Court was even mentioned in Cockfield.
Another early Fourth Amendment case, Commonwealth v. Smith,
For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
Smith, supra at 459 (quoting Chambers,
As mentioned above, Cockfield, Smith, and Milyak were decided under the Fourth Amendment. However, from the 1970’s through the 1990’s, this Court decided several automobile exception cases in which we made no distinction between the protections provided by or the analysis required under the Fourth Amendment and under Article I, Section 8. For example, in Commonwealth v. Holzer,
In another case apparently decided under both the Fourth Amendment and Article I, Section 8, this Court upheld the warrantless search of a vehicle driven by the defendant-appellant, which police offi
Three years later, in Commonwealth v. Rodriguez,
Thus, in Holzer, Baker, and Rodriguez, this Court’s analysis of the applicability of the automobile exception to the warrant requirement was similar, revealing no apparent distinction between the Fourth Amendment and Article I, Section 8 with respect to the elements of that exception. This approach continued in three cases decided within days of each other in late 1995. See Commonwealth v. White,
In each of these cases, police conducted a warrantless search of the defendant’s motor vehicle and found illegal drugs. In each of these cases, the defendant sought to exclude the drugs from the trial proceedings, and the Commonwealth argued that they were admissible as evidence under the automobile exception to the warrant requirement. White, supra at 898-901; Labron I, supra at 918-20; Kilgore I, supra at 312-13. In each of these cases, although there was no issue as to the existence of probable cause, this Court held that the warrantless search was illegal and the evidence had to be suppressed because no exigent circumstances prevented the police from securing a warrant. White, supra at 900-01 (holding that the automobile exception was not applicable because there were no unforeseen circumstances, and explaining that police had had ample time and opportunity to secure a warrant for the search of the defendant’s car, just as they had secured warrants for the search of his residence and person); Labron I, supra at 923-25 (citing, inter alia, White, in holding that exigent circumstances did not exist and the automobile exception was therefore inapplicable because police knew well in advance of the challenged warrantless search that a particular vehicle, carrying evidence of a drug-related crime, would be parked in a particular location); Kilgore I, supra at 313 (citing, inter alia, Labron I, in holding that the automobile exception did not apply to the challenged warrantless vehicular search because there were no exigent circumstances to justify the failure to obtain a warrant, and explaining that the defendant-appellant was in custody and one of the three police officers on the scene “[cjlearly ... could have secured the vehicle while a search warrant was obtained”).
Thus, very importantly, the determinative principle upon which Kilgore I, Labron I, and White all relied was the same (and was also consistent with the holdings of Baker and Rodriguez), to wit, that application of the automobile exception to the warrant requirement required both probable cause and exigent circumstances beyond the mobility of the vehicle, which had prevented the police from securing a warrant prior to conducting the search. In Kilgore I, Labron I, and White, this Court concluded that exigent circumstances were lacking, and therefore the automobile exception was inapplicable and the evidence in question had to be suppressed.
Despite the factual, analytical, and legal similarities in White, Labron I, and Kilgore I, the challenges in each case and the decisions rendered were not grounded in the same constitutional provisions. White, supra at 899, was decided under Article I, Section 8; Kilgore, supra at 314, was decided under the Fourth Amendment; and the basis for Labron’s decision required a trip to the U.S. Supreme Court to clarify, as we discuss immediately below.
The Commonwealth sought review by the U.S. Supreme Court in Kilgore and in Labron,
On remand from the U.S. Supreme Court, this Court vacated the Kilgore I order which had reversed the Superior Court’s affirmance of the defendant-appellant’s judgment of sentence. We merely reiterated that Kilgore I had been decided under Fourth Amendment law, as the defendant-appellant had not preserved a claim under the Pennsylvania Constitution, and we recognized that the U.S. Supreme Court had “reversed our previous decision as an improper interpretation of federal law.” Kilgore II,
In contrast, in the Labron remand, in a one-page opinion, a plurality of this Court merely stated that our holding in Labron I had been based on Article I, Section 8 of the Pennsylvania Constitution, and therefore reinstated the previous order, which had upheld the order to suppress the evidence. Labron II,
The propriety of the reliance on White by Labron II and subsequent cases has been strongly questioned, primarily because White did not conduct any analysis of the automobile exception specifically under the Pennsylvania Constitution. See Commonwealth v. Perry,
The so-called “automobile exception” to the requirement for a search warrant is perhaps best articulated in Chambers v. Maroney[,399 U.S. 42 ,90 S.Ct. 1975 ,26 L.Ed.2d 419 (1970) ]:
“In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.” [Chambers,]399 U.S. 42 , 51,90 S.Ct. 1975 , 1981,26 L.Ed.2d 419 , 428 (1970) (Emphasis added).
In sum, the general rule is that a search warrant is required before police may conduct any search. As an exception to this rule, police may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police; (3) police have obtained this information in such a way that they could not have secured a warrant for the search, ie., there are exigent circumstances.
White, supra at 899-900 (emphasis in original).
The White Court then summarized its understanding of the automobile exception as follows:
[Although the Fourth Amendment generally requires probable cause to be determined and a warrant to be issued by a magistrate before a search may be conducted, unforeseen circumstances involving the search of an automobile coupled with the presence of probable cause, may excuse the requirement for a search warrant.
Id. at 901.
Although White quoted the Edmunds factors, White did not conduct an analysis based on any of the factors; did not discuss Article I, Section 8 or any other provision of the Pennsylvania Constitution; and did not consider, much less determine, that some unique aspect of Pennsylvania’s constitutional experience required a divergence from federal law with regard to application of the automobile exception. See Perry, supra at 710-11 (Castille, J.,
However, as we have discussed supra, this Court’s articulation of the automobile exception in White, Labron I, and Kilgore I constitutes neither an accurate expression of the federal automobile exception as it exists today, nor as it existed in December 1995, when White was decided. See Perry, supra at 708-13 (Castille, J., concurring) (discussing White’s “misapprehension” of federal law). We recognize that the language of some early U.S. Supreme Court cases that initially set forth the automobile exception certainly did suggest the requirement for an unexpected and unforeseeable development of probable cause in order to uphold the warrantless search of a motor vehicle. But it is now beyond cavil that the unexpected and unforeseeable development of probable cause is not required for application of the exception under federal law — and has not been since 1982.
[U]nder our established precedent, the “automobile exception” has no separate*120 exigency requirement. We made this clear in [Ross, supra at 809 [102 S.Ct. 2157 ], decided in 1982], when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.”
Dyson,
In sum, it is difficult to read objectively this Court’s precedent, especially the White, Labron, and Kilgore decisions, and not conclude that, at least until 1995, this Court continued to consider the Fourth Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution to be coextensive with regard to the automobile exception to the warrant requirement. Most importantly, this Court concluded that an exigency beyond the mobility of the vehicle was a requirement for application of the automobile exception under early U.S. Supreme Court precedent, and this Court maintained and applied that view of the automobile exception for many decades. There is certainly language in early U.S. Supreme Court automobile exception cases to suggest an exigency requirement related to unforeseeability or potential loss of evidence. However, while the federal automobile exception evolved to require only probable cause to search an automobile, our decisional law did not so evolve, but rather maintained its adherence to the original formulation of the exception. See Perry, supra at 720 (Saylor, J., concurring) (stating that “the United States Supreme Court eventually broadened the [automobile] exception by eliminating the exigency requirement, see California v. Carney,
In Commonwealth v. Perry,
In a single justice Opinion Announcing the Judgment of the Court (“OAJC”), then-Justice Cappy relied on White for his statement of Pennsylvania law regarding the automobile exception to the warrant requirement: “there must be a showing of both probable cause and exigent circumstances” for a warrantless search of a motor vehicle to be valid. Perry, supra at 700 (OAJC) (citing White, supra at 900). Although Justice Cappy recognized that the police had not had the opportunity to obtain a warrant prior to stopping the defendant-appellants’ automobile, he nevertheless declined to find exigency on this basis, noting that the defendant-appellants were in police custody and “there was no danger of the automobile leaving with the contents therein,” even though the ear “was in the middle of a lane of traffic with its engine running.” Id. at 702-03. However, Justice Cappy held that the exigency of “great potential for deadly harm to the police” rendered the warrantless search of the automobile constitutionally reasonable. Id. at 703. In two separate concurring opinions, three justices agreed that the warrantless search was proper, but based this determination on different exigencies. See Perry, supra at 718-719 (Castille, J., concurring) (concluding that the warrant-less search was proper under our decisional law because of the exigency of the unexpected development of probable cause and the resulting lack of an opportunity to secure a warrant prior to the search); id. at 720 (Saylor, J., concurring) (stating that with regard to the automobile exception, this Court’s decisional law has indicated that “sufficient exigency is present where, because of the attending circumstances, it was not reasonably practicable for the police to obtain a warrant,” and concluding that the facts of this case presented such a situation). Two justices dissented, determining that there was no danger to police, who “clearly could have secured the scene [with the car running in the middle of the road] and waited with the car while a search warrant was obtained.” Id. at 722 (Nigro, J., dissenting).
Not surprisingly, Perry did not provide guidance, much less precedent, for the next case implicating the automobile exception to come before this Court, Commonwealth v. McCree,
With regard more generally to this Court’s adoption of a “limited automobile exception,” the OAJC explained as follows:
We have described two reasons why exigent circumstances allow a warrantless search or seizure of a vehicle under Article I, § 8: (1) a vehicle is mobile and its contents may not be found if the police could not immobilize it until a warrant is secured; and (2) one has a diminished expectation of privacy with respect to a vehicle. Holzer, [supra ] at 106. Thus, even though privacy protections are implicated under Article I, § 8, the heightened privacy concerns involved in a seizure from an individual’s person are not present where an object is seized from a vehicle.
McCree (OAJC), supra at 630.
In a concurring opinion, then-Justice Castille reiterated his view that our holdings with regard to the automobile exception “at most suggest that, if Article I, Section 8 requires an exigency to justify a probable cause-based warrantless entry of a vehicle ... all that is required is that the probable cause ‘arose unexpectedly, i.e., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose.’ ” McCree, supra at 635 (Castille, J., concurring) (quoting Perry, supra at 717 (Castille, J., concurring)).
In a separate concurring opinion in McCree, then-Chief Justice Cappy
In Commonwealth v. Hernandez,
The Hernandez Court began its legal analysis by stating that, in Pennsylvania, “we have not adopted the full federal automobile exception under Article I, Section 8.” Hernandez, supra at 1280 (quoting McCree, supra at 629). Rather, “[war-rantless vehicle searches in this Commonwealth must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility.” Id. We acknowledged the difficulty that this Court has had in determining precisely what satisfies the exigency requirement. Id. at 1280-81 (discussing Perry, supra). We then held “without equivocation, that where there is potential danger to police or others in the context of a vehicle stop, exigency has been established for purposes of a warrantless search.” Id. at 1282. However, in Hernandez, because the Commonwealth had not offered any supporting evidence for the police claim of danger from another person in the truck, this Court held that the search was not supported by exigent circumstances and thus was unlawful. Id. at 1283. Nevertheless, this Court concluded that the officer’s observations of the rear compartment of the truck were not required to support probable cause for the subsequently obtained warrant. Accordingly, this Court held the evidence was admissible.
Then-Justice Castille concurred in the result only, concluding that the search at issue was justified under the automobile exception simply because probable cause arose unexpectedly, and hence it was not reasonably practicable for police to obtain a warrant prior to stopping the defendant’s truck. Id. at 1285, 1286, 1290 (Castille, J., concurring). The concurring opinion also pointed out that this Court had never conducted “a candid and responsible Edmunds-style state constitutional analy
We have reviewed our jurisprudence in the area of automobile searches in such detailed manner in order to reinforce the point that this Court has been unable to articulate a consistent, clear, and readily applicable majority expression of the automobile exception to the warrant requirement. Consequently, local and state police officers have not received essential guidance from this Court as to the circumstances in which the warrantless motor vehicle search, which is a common and important aspect of law enforcement, is permissible in this Commonwealth. Based on the Fourth Amendment, the U.S. Supreme Court has set forth a bright line rule for the automobile exception: police officers may search a motor vehicle if they have probable cause for the search. To begin to alleviate the confusion surrounding the automobile exception in this Commonwealth, we are convinced at this juncture, however belated it may be, that it is essential for us to conduct an Edmunds analysis, which focuses on unique aspects of our state constitutional experience, to determine if our state Constitution mandates a stricter standard for warrantless automobile searches than that set forth by the U.S. Supreme Court under the Fourth Amendment.
An Edmunds analysis encompasses at least the following four factors:
1) text of the Pennsylvania constitutional provision; 2) history of the provision, including Pennsylvania case-law; 3) related case-law from other states; [and] 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Edmunds,
For the reasons set forth infra, we hold, based on our analysis of the Ed-munds factors, that with regard to the warrantless searches of motor vehicles, Article I, Section 8 provides no greater protection than does the Fourth Amendment.
In addressing the first Edmunds factor, we must consider the text of Article I, Section 8, which, as we have often observed, is very similar to the text of the Fourth Amendment. See Commonwealth v. Russo,
For the second Edmunds factor, we must consider the history of and decisional law concerning Article I, Section 8, as it may be relevant to automobile searches. There is no question that this Court has repeatedly emphasized the strong notion of privacy embodied in that provision of our state Constitution. See, e.g., Edmunds, supra at 897. Based substantially on the paramount concern for individual privacy, this Court has, in certain limited circumstances, afforded greater protections under Article I, Section 8 than are afforded under the Fourth Amendment. See, e.g., Theodore v. Delaware Valley School District,
However, neither this Court’s holdings in the above-listed cases, nor a generally, enhanced concern for individual privacy, translates into a conferral of increased privacy protection in every context in which it is asserted under Article I, Section 8. As we have made clear, we do not reflexively find “in favor of any new right or interpretation asserted” under Article I, Section 8. Russo, supra at 1210 (citation omitted). Rather, in numerous cases, this Court has concluded that Article I, Section 8 and the Fourth Amendment provide comparable protections, and has accordingly followed the prevailing federal standard. See, e.g., Russo, supra at 1200, 1205-13 (after conducting a detailed Edmunds analysis, concluding that the open fields doctrine is equally applicable under the Fourth Amendment or Article I, Section 8); Commonwealth v. Duncan,
Our review of the factual circumstances in the precedential cases summarized above' does not suggest that the search of a motor vehicle falls into the category of situations where this Court has required greater protection under Article I, Section 8 than is required under the Fourth Amendment.
A precedent that is highly relevant to our analysis of the second Edmunds
[I]n determining the scope of protection afforded under Article I, Section 8, this Court employs the same two-part test employed by the United States Supreme Court to determine the sweep of the Fourth Amendment of the U.S. Constitution. That test requires a person to demonstrate: (1) a subjective expectation of privacy; and (2) that the expectation is one that society is prepared to recognize as reasonable and legitimate.
Russo, supra at 1211 (internal citation and quotation marks omitted).
This Court has long held that, although the scope of Article I, Section 8’s privacy protections extends to a motor vehicle, the protections are diminished therein. Chase,
This Court’s determination that the reasonable and legitimate expectation of privacy is diminished in one’s motor vehicle, as compared to one’s residence or person, is entirely consistent with federal Fourth Amendment jurisprudence. Furthermore, we discern no distinction between the rationale for the reduced expectation of privacy in a motor vehicle set forth by this Court and that set forth by the U.S. Supreme Court. See California v. Carney,
Thus, it is undisputable that, under Article I, Section 8, as well as under the Fourth Amendment, there is a diminished expectation of privacy in motor vehicles as compared to a residence, office, or person. No decisions from this Court have suggested that there is a different rationale behind this diminished expectation of privacy under state versus federal law, and, in fact, we have relied upon U.S. Supreme Court opinions in explaining the reasons for it. Given the clearly stated determination by this Court that there is a diminished expectation of privacy in motor vehicles — and no indication that a unique aspect of Pennsylvania constitutional experience requires that somehow this diminished expectation of privacy is not quite as diminished under state law as under federal law — we must conclude that the second Edmunds factor does not militate in favor of conferring greater protection under Article I, Section 8 for automobile searches.
The third Edmunds factor requires a consideration of related case law from other jurisdictions. As the Commonwealth addresses, and Appellee concedes, most states have adopted the federal automobile exception. See Commonwealth’s Brief at 32-35 & n. 8; Appellee’s Brief at 28-31. We consider first the experience of several states that have adopted the federal automobile exception under their own constitutions.
In one illuminating example, in 1992, the Supreme Court of Rhode Island adopted, under its own state Constitution, the federal automobile exception as defined by the U.S. Supreme Court. See State v. Werner,
North Dakota’s jurisprudential experience in the area of automobile searches
Massachusetts has also changed its requirements for application of the automobile exception over time. In 1990, the Supreme Judicial Court of Massachusetts concluded that, under both the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights, a warrant-less search of a vehicle was justified when police had probable cause and securing a warrant was impracticable because of exigent circumstances. Commonwealth v. Cast,
Similarly, the Supreme Court of Connecticut has recently reiterated that “under our state constitution, our automobile exception permits, a warrantless search of an automobile whenever the police have probable cause to do so.” State v. Winfrey,
Other states have adopted the federal approach. See State v. Conn,
Hence, many states have adopted the federal automobile exception, with some states clearly indicating that they have,
In contrast to the above examples, some states have departed from the federal automobile exception based on state constitutional provisions, the texts of which are decidedly different from that of the Fourth Amendment. For example, in State v. Elison,
Similarly, Washington State has not adopted any exception to the warrant requirement specifically for motor vehicles, based on Article I, Section 7 of the Washington State Constitution, which explicitly protects privacy and reads as follows: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” In State v. Tibbles,
Given that the Pennsylvania Constitution has no provision analogous to Article I, Section 7 of the Washington Constitution, or to Article II, Section 10 of the Montana Constitution, we conclude that the experience of these states is unpersuasive. See Russo, supra at 1211 & n. 12 (concluding that the rejection of the federal open fields doctrine by Montana and Washington was unpersuasive because it was based on provisions in the constitutions of those states that explicitly protect individual privacy or private affairs, provisions that have no analogous counterparts in the Pennsylvania Constitution).
Other states have relied on state constitutional provisions that are very similar or essentially identical to the Fourth Amendment • in concluding that a warrantless search of a motor vehicle must be supported by exigent circumstances. For example, in State v. Cooke,
In State v. Bauder,
Thus, in sum, while most states have adopted the federal automobile exception to the warrant requirement, some have not. At least two states, Montana and Washington, have rejected an automobile exception to the warrant requirement based on protections for individual privacy explicitly set forth in their state constitutions. Other states, relying on their distinct interpretations of state constitutional provisions that are similar or nearly identical to the Fourth Amendment, have declined to adopt the federal automobile exception, and have maintained a requirement, not just for probable cause, but also for exigent circumstances beyond the inherent mobility of a motor vehicle. This second group of states has stressed several factors, e.g., the preference for warrants, see Cooke, supra at 99 (New Jersey), Gomez, supra at 11 (New Mexico), Bauder, supra at 43-44 (Vermont); consistent state precedent, see Cooke, supra at 97-99; reasonable expectations of privacy, even in an automobile, see Cooke, supra at 99, Bauder, supra at 42. However, most states have adopted the federal automobile exception, citing, e.g., the
While the variety of state experiences in this area is uniformly informative and of interest, we are more persuaded by the logic and reasoning of the states that have adopted the federal automobile exception than by that of the states that have continued to impose a requirement of exigency beyond the inherent mobility of the vehicle.
For the fourth and final Edmunds factor, we must consider the policies implicated by the constitutional interpretations advanced, “including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.” Edmunds, supra at 895. We believe that this factor militates strongly in favor of adoption of the federal automobile exception, which requires only a finding of probable cause, and no exigency beyond the inherent mobility of a motor vehicle, to support a warrantless vehicular search.
One need only examine this Court’s fractured jurisprudence in the area of motor vehicle searches to recognize the difficulty that we have had in articulating a consistent, clear, understandable, and readily applicable conception of exigency sufficient to support a warrantless vehicular search. See Commonwealth v. Hernandez,
A consideration of some specific examples from our decisional law shows how the determination of exigency — or lack thereof — can turn on small facts in the midst of a complex, volatile, fast-moving, stressful, and potentially threatening situation in the field. For example, we have considered on several occasions how quickly and specifically probable cause must arise for police — and the reviewing court — to conclude that obtaining a warrant is impracticable. Compare Commonwealth v. Ionata,
A further difficulty with the assessment of probable cause under some of our decisions is that police officers must determine not only whether they have probable cause to search a motor vehicle, but also precisely when in the course of their investigation probable cause arose, and whether at that point, there was sufficient opportunity to secure a warrant. See Commonwealth’s Brief at 28; White, supra at 909-10 (Castille, J., dissenting). This is a difficult standard to apply, not just for the court, but also, and more importantly, for police officers operating in the field, often in the midst of a fast-moving investigation.
A second example of the complexity and, in some instances, inconsistency, in the area of warrantless motor vehicle searches, is our decisional law as to what circumstances constitute sufficient danger to the police or the public such that an exigency is present, and thus a warrantless vehicular search is justified. Compare Commonwealth v. Holzer,
Finally, we consider this Court’s opinions in response to the question of what— or whether — evidence is required to show that a third party, e.g., an arrestee’s cohorts, family, friends, or other persons often completely unknown to police, is likely to move the arrestee’s vehicle or tamper with evidence therein. Compare Commonwealth v. Perry,
Thus, the question of whether, and under what circumstances, a police officer is
As the cases summarized and compared above make clear, our fractured jurisprudence in the area of warrantless motor vehicle searches has often turned on small details in the midst of a complex factual scenario, details which have been given varying emphasis over time by different members of this Court. Accordingly, it remains difficult, if not impossible, for police officers in the field to determine how this Court would rule in motor vehicle search and seizure cases, the circumstances of which are almost endlessly variable. To provide greater uniformity in the assessment of individual cases and more consistency with regard to the admissibility of the fruits of vehicular searches based on probable cause, a more easily applied rule — such as that of the federal automobile exception — is called for. See California v. Acevedo,
This position is supported by the fact that we, in agreement with the U.S. Supreme Court, have long considered the immobilization of a motor vehicle while securing a search warrant to be an alternative to the immediate search of the vehicle because it is far from clear which course constitutes the greater intrusion. Baker,
Our review and research have revealed no unique Pennsylvania policy considerations that counsel in favor of a, state standard for motor vehicle searches that is distinct from the federal standard.
In sum, our review reveals no compelling reason to interpret Article I, Section 8 of the Pennsylvania Constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. 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 engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field.
Here, there is no dispute that probable cause existed to search Appellee’s motor vehicle. Nothing more is required. Therefore, we vacate the order of the Superior Court, and we reinstate Appellee’s judgment of sentence.
Former Justice ORIE MELVIN did not participate in the consideration or decision of this case.
Chief Justice CASTILLE and Justice EAKIN join the opinion.
Justice SAYLOR files a concurring opinion.
Justice TODD files a dissenting opinion in which Justice BAER joins.
Notes
. Respectively, 35 P.S. §§ 780-113(a)(16) and (a)(30).
. The Superior Court clarified that Appellee challenged only the trial court's finding of exigent circumstances, not the finding of probable cause. Commonwealth v. Gary, 29 A.3d 804, 807 (Pa.Super.2011).
. Smith presaged the difficulties this Court has experienced to this day in considering the automobile exception. The Opinion of the Court in Smith, authored by Justice O’Brien, was joined by only one justice; two justices concurred in the result without opinion; and three justices dissented, with one authoring a dissenting opinion. See Commonwealth v. Smith,
. Although Milyak was a unanimous opinion, Justice Zappala wrote that he was "compelled to join” the majority because of the appellant’s failure to challenge the search on state constitutional grounds. Milyak, supra at 1351 (Zappala, J., concurring).
. In Rodriguez, Justice Flaherty authored a dissent joined by two other justices, in which he opined that a "warrant could plainly have been issued to allow a search of whatever vehicle appellant might be driving into the York vicinity on [the day in question].” Rodriguez, supra at 992, 994 (Flaherty, J., dissenting). Accordingly, the dissent would have held that the warrantless search was improper and the evidence was inadmissible.
. The Commonwealth did not seek review of White by the U.S. Supreme Court. See Pennsylvania v. Labron,
. For example, White, supra at 900, cited Commonwealth v. Milyak,
White, supra at 900-01, also discussed Commonwealth v. Ionata,
To the extent that White relied on Ionata, the reliance is misplaced, as Ionata was a plurality decision. See Hoy v. Angelone,
. The Opinion Announcing the Judgment of the Court in Labron II did not correctly characterize White’s holding and analysis. Specifically, it stated as follows:
In White, we discussed the automobile exception and noted that, "this Court, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance than has the United States Supreme Court, and under the Pennsylvania balance, an individual's privacy interests are given greater deference than under federal law." [White,]669 A.2d at 902 . Following this citation to White, we concluded in Labron [I] that "this Commonwealth’s jurisprudence of the automobile exception has long required both the existence of probable cause and the presence of exigent circumstances to justify a warrantless search.” [Labron I,]669 A.2d at 924 .
Labron II, supra at 228.
Two points must be made here which strongly call into question the above reasoning from Labron II. First, the White quotation, supra, upon which Labron I was said to rely, did not appear in the context of a discussion of the automobile exception in White. Rather the quotation appeared in the context of an analysis of whether the challenged vehicular search in White could be justified as a search incident to arrest. See White, supra at 902. Second, Labron I did not quote White — or any other precedent — for the principle that this Court has afforded greater deference than has the U.S. Supreme Court to an individual’s privacy interests. See Perry, supra at 710 (Castille, J., concurring) (raising the same two points about Labron II’s erroneous characterization of Labron I and White).
. We note that, more than two years before White was decided, the Superior Court set forth a clearer and more accurate interpretation of federal law regarding the automobile exception.
We note the discrepancy between some of the Commonwealth’s past cases and federal cases which speak to automobile searches-United States Supreme Court decisions clearly indicate[ ] that there exists an "automobile exception” to the warrant requirement. This [exception] under federal law has developed close to a per se rule that whenever the police stop a suspect with probable cause to believe his automobile contains evidence of crime, they may legally search the vehicle without a warrant.
Commonwealth v. Camacho,
. The OAJC in McCree was authored by Justice Eakin and joined by Justices Saylor and Fitzgerald.
. Then-Justice Castille also reiterated his "inclin[ation] to hold that our approach [to the issue of warrantless motor vehicle searches] should be coextensive with the federal approach under the Fourth Amendment.” McCree, supra at 635 (Castille, J., concurring) (citing Perry, supra (Castille, J., concurring)).
.Then-Chief Justice Cappy’s concurring opinion was joined by Justices Baer and Baldwin.
. We note that our Superior Court in Commonwealth v. Rosenfelt,
We are unable to agree with Rosenfelt's analysis for all the reasons discussed in the text, infra, and express disapproval of its holding.
. We are not ignoring decisions such as Labron II, supra; McCree, supra; and White, supra, which did suggest greater protections under Article I, Section 8 than under the Fourth Amendment with respect to warrant-less automobile searches. We have already discussed these cases in detail in the text, supra; indicated that none of them conducted any analysis remotely similar to an Edmunds-style analysis or specifically addressed the requirements of the Pennsylvania Constitution in any way; and explained our rationale for concluding that they are of limited prece-dential or persuasive value to the case before us. See text, supra.
. Rodriguez was decided by a 4-3 majority, since two justices (Chief Justice Nix and Justice Zappala) joined the dissent. White was decided by a six-member Court, with four justices in the majority, one justice concurring, and one dissenting. In Ionata, the Court was evenly divided, and thus the order of the Superior Court was affirmed.
. White was decided by a six-member Court, with four justices in the majority, one justice concurring, and one dissenting. Perry was also decided by a six-member Court, and generated four opinions. Hernandez was decided by a four-justice majority, with three justices concurring in two separate concurring opinions.
. Appellee argues that the enhanced protection of individual privacy rights afforded by Article I, Section 8 requires a departure from federal law with regard to the automobile exception. See Appellee’s Brief at 32-33, 35-36; see also Brief of Amicus Curiae, Pennsylvania Association of Criminal Defense Lawyers, at 13-20. We cannot agree for all the reasons discussed in the text, supra. The determination of enhanced privacy protections under some circumstances does not automatically translate into enhanced privacy protections wherever they may be asserted. Furthermore, Appellee fails to consider that, although motor vehicles are not unprotected
Concurrence Opinion
concurring.
As reflected in the lead opinion, this Court has obviously had difficulty for quite some time in managing the appropriate contours of the automobile exception to the warrant requirement. Although I have some reservations, for the sake of certainty and consistency, I join the lead Justices in adopting the federal automobile exception.
I do wish to observe, however, that I find inconsistency in the courts’ rejection of bright-line rules restraining law enforcement as a means of protecting individual rights,
. See, e.g., Commonwealth v. Revere,
Dissenting Opinion
dissenting.
I respectfully dissent. Pennsylvania has long been at the constitutional forefront in recognizing the vital necessity of prior judicial approval of searches conducted by governmental officials, obtained through the warrant process, in order to maintain the fundamental right of the people to security from unreasonable searches and seizures. Consistent with that tradition, our Court has, heretofore, regarded warrantless searches of automobiles illegal under Article I, Section 8 of our Commonwealth’s Constitution — except in those limited situations where both probable cause exists for such a search, and exigent circumstances, beyond the inherently mobile nature of the automobile itself, preclude obtaining a search warrant from a neutral magistrate. Pursuant to Commonwealth v. Edmunds,
Moreover, our Court has chosen to eliminate this critical protection despite the undeniable fact that our society has undergone a sweeping technological revolution over the many years which have elapsed since the time of the federal decisions on which the plurality opinion relies, seriously undermining the viability of their use as governing constitutional norms for vehicle searches in our modern society. As I explain at greater length herein, the federal automobile exception was first created by the high Court in the 1920’s, seemingly in response to the practical difficulties of federal prohibition enforcement agents obtaining a search warrant for vehicles they suspected of transporting liquor, and then applied more recently by that Court in the mid-1980’s because of a completely differing policy consideration — people’s alleged diminished expectations of privacy in their vehicles. However, these rationales have been seriously eroded by both the advance of technology and the practical reality of how owners, operators, and passengers in automobiles utilize them in modern times.
Most critically, as developed in greater detail infra, the federal approach discounts the vital individual privacy interests historically protected in this Commonwealth by Article I, Section 8. Indeed, it is seemingly contrary to the most recent public policy pronouncement of our legislature extending the “Castle Doctrine” of self-defense, heretofore reserved exclusively for the home, to automobiles. I, therefore, deem the blanket espousal of such a relaxed standard as the controlling understanding of this integral provision of our own unique, organic charter of governance to be unjustified under the interpretational principles our Court articulated in Ed-munds, and, thus, insufficient to safeguard the right of the people of Pennsylvania to be secure against unreasonable searches and seizures. Consequently, I must dissent from our Court’s decision to impose such lockstep jurisprudential conformity with the high Court’s interpretation of the federal Constitution.
I. Evolution of the automobile exception under Pennsylvania Law
As the plurality has acknowledged, in its able recitation of our Court’s prior decisions in this area, we have heretofore refused to sanction the search of an automobile without a warrant unless two essential requirements are met: (1) probable cause exists that the automobile contains evidence of criminal activity, and (2) exigent circumstances, beyond the inherent mobility of the automobile itself, preclude the searching officers from obtaining a warrant from a neutral judicial officer authorizing the search, prior to its commencement. See Commonwealth v. Cockfield,
I agree with the plurality that, until our White decision in 1995, we viewed the twin requirements of probable cause and exigent circumstances as mandated by both the Fourth Amendment to the United States Constitution and Article I, Section 8 of our own Constitution. See Cock-field (finding warrantless search of trunk of Appellant’s car violated the Fourth Amendment and was not justified by exigent circumstances); Baker, (viewing warrant requirements of both the Fourth Amendment and Article I, Section 8 as applicable to automobiles). However, as the plurality recognizes, see Opinion Announcing the Judgment of the Court (“OAJC”) at 120, White marked a clear break with the United States Supreme Court’s caselaw in this area, which, by 1995, had abandoned the requirement that exigent circumstances must exist to excuse the failure to obtain a warrant prior to an automobile search. As a result, I consider our decision in White, that suppression of evidence obtained from the search of the arrested driver’s vehicle was compelled by Article I, Section 8, because the police had time and opportunity to obtain a search warrant prior to the search, to reflect a deliberate choice by our Court to chart an independent course in our jurisprudence under Article I, Section 8. From my perspective, it, thus, represented an intentional repudiation of the federal approach to such searches, an approach which, as I explain at greater length infra, gives what I deem to be insufficient consideration to, and protection of, the vital interest in individual privacy, secured by the warrant requirement of Article I, Section 8. I, therefore, regard White as constituting a watershed division between Pennsylvania jurisprudence and federal law on this subject, which preserved and continued our prior interpretation of Article I, Section 8 as requiring a warrant for automobile searches, unless exigent circumstances preclude procuring one. This clear separation between our jurisprudence under Article I, Section 8, and that of the United States Supreme Court under the Fourth Amendment, has been maintained by subsequent prece-dential decisions from our Court continuing to insist on both probable cause and exigent circumstances as justification for a warrantless search of an automobile. See Luv,
Although the plurality now faults our Court for not conducting a formal four-part Edmunds analysis
Nevertheless, as the plurality has aptly cataloged, it is undeniable that our decision to pursue such an independent path has, at times, generated divergent viewpoints among members of this Court regarding both the soundness of the jurisprudential rationale for this choice, as well as the scope of the exigency requirement itself. See, e.g., Perry (plurality) (Cappy, C.J., Opinion Announcing the Judgment of the Court; Castille, J., concurring; Saylor, J., concurring; Nigro, J., dissenting); Commonwealth v. McCree,
Consequently, because the plurality, in light of the continuing tension existing among various members of our Court regarding this area of the law, has applied, in a scholarly and developed fashion, the Ed-
II. Edmunds Analysis
A. Comparative text of federal and state constitutional provisions
The conduct of an Edmunds analysis first necessitates that we examine the text of the governing state and federal constitutional provisions. Article I, Section 8 of the Pennsylvania Constitution provides:
Security from searches and seizures
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. Const, art. I, § 8.
In comparison, the Fourth Amendment to the United States Constitution states:
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. Const, amend. IV.
The plurality finds “nothing in the text of Article I, Section 8 to suggest that it confers greater protection than does the Fourth Amendment with regard to a war-rantless search of a motor vehicle.” OAJC at 125. I respectfully disagree. Unlike the Fourth Amendment, Article I, Section 8 uses the term “possessions,” which our Court has previously interpreted to mean “intimate things about one’s person,” Commonwealth v. Russo,
B. History of Article I, Section 8 and interpretative caselaw
The second part of an Edmunds analysis involves an examination of the pertinent history of Article I, Section 8 and our Court’s relevant interpretative case law.
1. The warrant requirement
This provision of our Commonwealth’s Constitution has, from the time of its birth during our nation’s revolutionary summer of 1776, recognized and protected a natural and fundamental human right to privacy of our people. Commonwealth v. Sell,
It is well established that the arbitrary search and seizure practices of the Crown’s customs officers charged with the collection of various excise taxes, imposed without the consent of the American colonists, were an integral part of the “long Train of Abuses and Usurpations” suffered by them which ultimately culminated in their fateful decision to seek independence from England. See Declaration of Independence (listing as one of the enumerated “repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States” the King of England’s sending “hither swarms of Officers to harass our People and Eat out their substance.”); Jacob W. Landynski, Search & Seizure and the Supreme Court 38 (1966); see also William Cuddihy, The Fourth Amendment, Origins and Original Meaning 779 (Oxford Press) (hereinafter “Cuddihy”) (noting that the conduct of warrantless searches by customs officials prompted the Continental Congress to condemn the practice on three separate occasions in 1774 and to specifically denounce the power of customs officials to do so in an address to King George III).
Originally, customs officers claimed the plenary power to forcibly enter homes, warehouses, and other places to search for smuggled goods, without any warrant or other judicial authorization. Tracey Maclin, The Central Meaning of The Fourth Amendment, 35 Wm. & Mary L.Rev. 197, 219 (1993) (hereinafter “Maelin”). The customs officers contended that they possessed the inherent authority to conduct such searches ex officio, i.e., as pursuant to the powers of their offices bestowed upon them by their commissions. Id. at 220; Nelson Lasson, The Fourth Amendment to the Constitution 55 (1957) (hereinafter “Lasson”). However, because the invasive nature of the searches engendered great public opposition, officials of colonial governments attempted to mollify the popu
Nonetheless, these court-issued writs fueled a gathering popular tempest, as the colonists came to view the manner of the customs officers’ reliance on them to carry out sweeping searches as an even greater affront to their privacy, which sparked increasing popular resistance that ultimately became, in the view of historians, a principal cause for the Revolution. Maclin, The Complexity of The Fourth Amendment: A Historical Review, 77 B.U. L.Rev. 925, 945 (2014). The chief focus of the colonists’ ire was the fact that the writ gave customs officers “blanket authority to search where they pleased for goods imported in violation of the British tax laws.” Stanford v. Texas,
Although Otis was unsuccessful in Pax-ton’s Case in convincing the Massachusetts Supreme Court to adopt, as a replacement for the writ, a judicially issued specific warrant — limited as to the place to be searched and the items sought in the search — this outcome only increased the revulsion of the colonial populace to judicially unconstrained search practices. Indeed, popular opposition became sufficiently strong that it impeded customs officials from carrying out their search and seizure duties, due to the fact that, once people in an area became aware of the presence of the officers, mobs of angry people would routinely appear and carry away the goods which the officers sought. Maclin, Framing the Fourth, 109 Mich. L.Rev. 1048, 1054 (2011). As this hostility spread throughout the colonies, the English Parliament responded by enacting the Town-shend Revenue Act of 1767, which, to facilitate the obtaining of the writs by customs officers, empowered the highest court from each colony to issue them. Id. However, this engendered not only further opposition from the people, but also from the high courts themselves.
Nowhere was this opposition more acute than here in Pennsylvania, as reflected by the writings of the leading critic of the writ in the colonies, John Dickinson. Dickinson forcefully attacked the writ in his influential publication, “Letters of a Pennsylvania Farmer” which was widely read throughout the colonies and regarded as having “a pervasive, deep impact on colonial legal
Although in the aftermath of the Town-shend Revenue Act other colonial supreme courts declined to issue writs of assistance, our Court’s colonial predecessor, along with that of Connecticut, was unique in basing its refusal to issue such writs on the fact that they failed to restrict searches to only specific places and enumerated items and did not require an official to disclose to a judicial officer, prior to a search, his reasons for conducting it. In rejecting a 1771 application for a general writ from the Philadelphia customs collector, John Swift, Chief Justice Allen of our Court informed Swift: “[I]f you will make oath that you have had an information that ... [smuggled goods] are in any particular place, I will grant you a writ to search that particular place but no general writ to search every house — I would not do that for any consideration.” Cuddihy, at 520. Three years later, in 1774, when customs officials applied again for blanket authorization to conduct searches at their discretion, our Court once more rejected the application on the basis of their view that “arming officers of the customs with so extreme a power to be exercised totally at their own discretion would be of dangerous consequences [and] was not warranted by Law.” Id. at 525. Thus, our colonial high Court, along with Connecticut’s, was in the vanguard of a gathering legal consensus in the colonies to reject general search and seizure practices in favor of ones authorized by a judicially issued specific warrant. Cuddihy, at 534-36.
This evolving preference towards taking the decisional authority for the conduct and scope of searches away from the officials who would perform them, and placing such authority in the hands of a neutral judicial officer who could narrowly tailor the search to only certain areas and items, based on the particular information presented to him, was further reflected legislatively in Pennsylvania. We, along with Massachusetts, were the only colonies to supplant the authority of our own excise collectors to conduct warrantless excise searches with a requirement that the searches be conducted pursuant to supplementary search warrants, which authorized searches of places based on information provided by the official on where he thought goods on which duty had not been paid might be found. Cuddihy, at 780.
These historical developments in Pennsylvania, reflecting popular and legal abhorrence of the arbitrariness of the pervasive general search practices under the rule of the English crown, and recognition of the need to constrain them through the use of specific warrants issued by neutral magistrates, were evidently of vital importance to the drafters of our first Constitution. Even though the members of our inaugural constitutional convention, who began their labors in July 1776 under the shadow of the gathering storm clouds of war with England, were confronted with numerous weighty matters such as selecting a basic form of government, they, nevertheless, immediately formed a “Bill of Rights Committee,” and assigned as one of its primary tasks the drafting of protections for the “freedom from arbitrary search.” Burton A. Kunkle, George Bryan and the Constitution of Pennsylvania 1731-1791 119 (1980); Selsam, at 151; The
That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described are contrary to that right, and ought not to be granted.
Pa. Const. (1776) art. X.
This provision has been described by one scholar as “memorable because it [unlike earlier colonial constitutions] recognizes a right of the people in affirmative terms rather than merely declaring against general warrants or grievous searches.” Leonard W. Levy, Origins of the Bill of Rights 169 (1999). Also remarkable was the fact that Article X secured the right of the people to be free from arbitrary search and seizure of their papers and possessions by requiring the use of specific warrants “to search suspected places” in which such papers and possessions might be found. I find it particularly noteworthy that Article X was the first post-colonial constitutional provision to contain a requirement that an officer, who wished to obtain such a specific warrant to search a particular place, or to seize particular items, swear or affirm to a neutral third party empowered to issue the warrant — most often a judge — that “[a] sufficient foundation” existed, factually, for the officer to conduct such a search or make such a seizure. Id. at 170. By inclusion of this requirement that a governmental official obtain authorization pri- or to conducting a particular search or seizure, Article X represents a deliberate and affirmative repudiation of the previously discussed judicially unsupervised search practices which the framers found so repugnant.
Especially relevant for purposes of this appeal, I agree with Professor Levy’s observation that, while there exists no evidence to show the warrant requirement of Article X was intended to alter the longstanding common law rule that warrant-less searches and seizures are permissible when required by exigent circumstances, Article X clearly required specificity as to places to be searched and items to be seized “when a warrant was attainable.” Id. I, thus, consider Article X to reflect a strong “warrant preference” philosophy which regards specific warrants issued by a detached and neutral magistrate as the constitutionally required default search methodology, and which, correspondingly, views warrantless searches as authorized only in exceptional circumstances.
Consequently, the enactment of Article X — a full 15 years ahead of the adoption of the Fourth Amendment to the United States Constitution — enshrined the requirement of specific warrants issued by a neutral judge as an integral part of our state constitutional framework and, correspondingly, established such warrants as the main protection of the substantial privacy interests of our citizenry in every place where they choose to keep their most private papers and possessions. That our Commonwealth was the first to express a clear constitutional preference for the independent judgment of the judiciary regarding prior approval for, and conduct of, searches and seizures is significant, as it was a logical and natural outgrowth of the unique historical experiences of the people of Pennsylvania, who had long embraced specific warrants, issued after judicial review of specific justifying facts, but prior to any search or seizure taking place, as an
Although the language of Article X was reworked in 1790, when it was transformed into Article I, Section 8, and an additional requirement that all warrants be “subscribed to by the affiant,” was added in 1873, the basic values embodied in Article X are still reflected in the current version of Article I, Section 8. Article I, Section 8 continues to recognize a robust individual right of privacy in one’s papers and possessions, and protects that privacy right through its warrant requirements for searches of “any place” such items may be found. See Sell,
I note that, for nearly five decades from the mid 1920’s until the 1970’s, the United States Supreme Court construed the Fourth Amendment as requiring that a search of a vehicle for suspected contraband be conducted pursuant to a warrant, unless obtaining a warrant was not reasonably practicable; thus reflecting the same warrant preference philosophy as embodied in Article I, Section 8. As discussed by the plurality, this exception was first articulated in Carroll v. United States,
Gradually, however, in the 1970’s, the high Court began to excuse the requirement of a warrant for searches of vehicles when such searches were conducted in circumstances other than as the result of stopping a vehicle while it was in transit on a public roadway. The Court, in justifying
This transformation of the high Court’s easelaw culminated in the case of California v. Carney,
The reasons for such a paradigm shift by the high Court are unclear, given that it has never fully explained its rationale in electing to place primary emphasis on the factors it cited in Carney — which it imported from Opperman — in order to justify its complete dispensation with the warrant requirement. These factors were extant at the time of the Carroll decision as well, but apparently not regarded as sufficiently compelling for the Court to eliminate the warrant requirement in that case. Whatever the reason for this shift, however, the Carney standard — which eliminates, in all circumstances, the need for an officer to obtain a warrant from a neutral magistrate to search an automobile — is wholly inconsistent with Pennsylvania’s strong warrant preference philosophy of Article I, Section 8.
2. Privacy protections for automobiles
I agree with the plurality that we have regarded the enhanced privacy protections
Recognition of an objectively reasonable expectation of privacy worthy of constitutional protection in an automobile is, of course, inconsistent with the now nearly 30-year-old pronouncement of the United States Supreme Court in Carney, which the plurality accepts, that “there is a reduced expectation of privacy stemming from [a vehicle’s] use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.” Carney,
Carney’s lesser expectation of privacy rationale has been roundly criticized as lacking a sound, logical foundation, as summed up cogently by Professor LaFave:
When one rides in an automobile, he accepts that he himself and those items left uncovered on the dashboard or seat are no longer “private.” In contrast, the*151 driver or occupant of a vehicle who places objects under the seat, in a locked or unlocked glove compartment, or in a trunk does not surrender his expectation of privacy in those items.
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There are probably few Americans who have not at one time or another used their cars for storage, albeit unwisely. All personal effects so stored are entitled to fourth amendment protection; constitutional guarantees are not reserved only for valuable possessions carefully protected by their owners. Most Americans view the automobile as more than merely a means of transportation.
Finally, the high degree of government regulation does not support the excessive diminution of fourth amendment protection of the automobile which accompanies application of the automobile exception. A legitimate interest in securing compliance with safety and traffic regulations should not be used to justify a reduced expectation of privacy in the entire vehicle.
Wayne R. LaFave, Search and Seizure: A Treatise on The Fourth Amendment 734-35 (5th Ed. 2012); see also Carol A. Chase, Privacy Takes a Back Seat: Putting the Automobile Exception Back on Track After Several Wrong Turns, 41 B.C.L.Rev. 71, 91 (1999) (observing that most jurisdictions in America have significant legal regulations governing residential property, yet that does not justify finding a reduced expectation of privacy therein which would excuse the requirement of police obtaining a warrant to search home); Joseph D. Grano, Rethinking the Warrant Requirement, 19 Am.Crim. L.Rev. 605, 638 (1982) (hereinafter “Grano”) (“The fact that police may examine license plates, inspection stickers, headlights, exhaust systems, and other such things hardly proves that one has a reduced expectation of privacy in items held in the glove compartment, under the seat, or in the trunk.”).
I find these criticisms to have substantial merit as, in my view, the mere operation of a vehicle on a public highway does not ipso facto eliminate the operator’s or owner’s expectation of privacy in areas of the vehicle secured against public view, such as the trunk or the glovebox, any more than a pedestrian’s act of walking on the public streets eliminates his or her expectation of privacy for the areas underneath his or her clothing, or in his or her wallet or purse. Neither the fact that a motor vehicle is registered with the Commonwealth
Perhaps more importantly, to find that present-day owners or occupants of automobiles do not have an objectively reasonable expectation of privacy therein ignores the practical realities of the manner in which these conveyances are used in modern society, and, also, how they are viewed by their owners and occupants. While some state courts have accepted, without serious scrutiny, Carney’s mantra that an individual has such a lessened expectation of privacy in his or her automobile that it is unworthy of the protection of the warrant requirement of their own constitutions
[Automobiles] store the suit or dress that one keeps forgetting to leave at the cleaners, the bank statement that should be brought inside the house, the library book that should be returned, the briefcase that will be needed at a subsequent meeting, the work one had planned to do overnight, and sundry items permitted, deliberately or from laziness, to remain in the car until some other day.
Grano, at 637.
Further, as part of the routine ritual of modern life, people transport in their automobiles, and often store for periods of time in them, their laptops, smartphones and other digital devices, which contain a plethora of intimate and elaborate details about their daily lives, their personal financial records, their interactions with family and friends, and their innermost thoughts. Indeed, one jurist has memorably illustrated the highly sensitive and private nature of the type of materials which are regularly carried and stored in an automobile by observing: “[T]he workload of this court often requires judges to take their work home. The automobile provides the usual mode of transporting drafts of opinions, notations indicating the probable outcome of submitted cases, and confidential messages from other judges.” U.S. v. Edwards,
Moreover, and importantly, I note that automobiles are specifically designed and built with features such as trunks, glove boxes, and internal storage compartments, some of which may only open with a special key, in order to allow personal items to be deliberately secreted from public view during transport. Hence, the deliberate provision by automakers of these private places as standard features of every car, and their frequent utilization by the owners and occupants of cars to store items out of public sight, evidences a societally reasonable expectation that the privacy of all such areas in an automobile shielded from public view will be afforded the maximum degree of protection from unlawful and unjustified intrusion.
Additionally, the modern automobile itself is outfitted with a multiplicity of electronic devices, not in existence at the time
Another significant factor weighing heavily in favor of recognizing a reasonable expectation of privacy in an automobile is the fact that it has come to be regarded by most Americans as something more than just a means of transportation. It is viewed, for those who routinely travel in it, as a place of refuge and protection from the external world and the stresses of modern life. Today’s vehicles are deliberately engineered to insulate the drivers and passengers from as many extraneous disturbances as possible, and people frequently take maximum advantage of this insularity to “get away from it all” by taking long evening, weekend, or vacation drives. Even in their daily lives, more people still opt for driving than taking public transportation, in large measure because of the privacy the vehicle affords them while in transit. As William Safire has cogently observed in this regard: “[M]ost people ... prefer vehicles of their own. Certainly a strong reason must exist for commuters to go into hock to buy a car, to sweat out traffic jams, to groan over repair bills. That reason is, simply: the blessed orneriness called privacy.”
I also find compelling support for the notion that the inside of an automobile should be treated in this Commonwealth as an area akin to the inside of a home, with respect to the legal protections afforded to persons and property therein, from our legislature’s recent decision to extend the “Castle Doctrine” — “a common law doctrine of ancient origins which declares that a home is a person’s castle” — to vehicles.
For all of these reasons, I view the adoption of the Carney standard as anathema to the unique history and interpretation by our Court of Article I, Section 8 discussed above, as it removes the interposition of the judgment of a neutral magistrate in the automobile search process by eliminating the warrant requirement of Article I, Section 8 for all searches of vehicles, and thereby eviscerates its critical role in protecting the important right to privacy of all motorists of this Commonwealth against unreasonable searches and seizures of their cars. Therefore, I find this Edmunds factor strongly counsels against the wholesale utilization of the Carney standard as the governing legal standard for automobile searches in this Commonwealth.
C. Caselaw from other jurisdictions
The third factor of an Edmunds analysis involves an assessment of the decisions of our sister states. Initially, I note that some states which do not generally recognize a strong right to individual privacy protected by their own constitutions have elected to conform their state constitutional jurisprudence in this area to Carney, by wholly adopting the federal automobile exception in applying the search and seizure provisions of their own constitutions to automobile searches, and they allow war-rantless searches of automobiles based exclusively on an officer’s determination that probable cause exists to do so.
The Montana Supreme Court’s decision in State v. Elison,
[W]hen a person takes precautions to place items behind or underneath seats, in trunks or glove boxes, or uses other methods of ensuring that those items may not be accessed and viewed without permission, there is no obvious reason to believe that any privacy interest with regard to those items has been surrendered simply because those items happen to be in an automobile. Furthermore, there is no reason to believe that the ‘pervasive and continuing governmental controls and regulations’ of automobiles could serve to reduce someone’s expectation of privacy in items so stowed. Although the State may have a legitimate interest in securing compliance with safety and traffic regulations, there is absolutely no logical connection between prohibitions such as driving with expired registration stickers or a*156 noisy muffler, and the State’s need to conduct a warrantless search behind the seat of an automobile. Visual inspections of license plates for expired tags do not entail searches of glove boxes, trunks, and underneath seats.
Id. at 470. Significantly, the Montana Supreme Court also reminded that, because a search of a car is an invasion of the owner’s or operator’s constitutionally protected privacy interests in the items stored therein, the state is required to provide procedural safeguards when it invades those interests. The court noted it is, therefore, the type of search which “typically requires a warrant or other special circumstances,” and it refused to allow a search solely on the basis of the existence of probable cause. Id.
Similarly, the highest court of our sister state of New Jersey in State v. Cooke,
As noted by the plurality, the high courts of Washington and Vermont, which also recognize a strong individual right to privacy under provisions of their state constitutions — either explicitly via a separate amendment (Washington) or through interpretation of the provision generally regulating searches and seizures (Vermont)— have also refused to allow warrantless searches of motor vehicles solely on the basis of a police officer’s determination of probable cause. Although these decisions did not directly address the applicability of Carney under their state constitutions, they, nevertheless, are in accord with the fundamental principles of the decisions discussed above in that they continue to view a warrant as the bedrock means of protecting the privacy interest an owner or occupant of a vehicle has in areas of automobiles outside of public view, and, thus, mandate that those areas may not be searched without a warrant, unless exigent circumstances exist that make the obtaining of a warrant impracticable. See State v. Tibbles,
In sum, I find these decisions from courts of our sister states which have not accepted the Carney standard as the controlling interpretation for their own constitutions to be more persuasive, as they are wholly consonant -with our Court’s longstanding interpretation of Article I, Section 8 as embodying both a strong individual right to privacy of individuals, and a strong preference for the utilization of the warrant procedure in recognition of the vital role it plays in protecting that right.
D. Policy considerations
The final prong of the Edmunds analysis is an examination of relevant policy considerations at stake, particularly those of state and local concern in our Commonwealth. In this regard, I observe that, not only has our Court steadfastly protected the important right of personal privacy by insisting, through our decisions, on the use of a warrant for searches of all areas in which our citizenry has a reasonable privacy interest, unless not reasonably practicable, we have also purposefully sought to encourage the use of warrants to conduct searches by making them far easier for police officers to obtain in conducting field investigations. Over a decade ago, in 2002, our Court amended our Rules of Criminal Procedure to allow the use of advanced communications technology to enable an officer to obtain a search warrant from a magistrate without having to physically depart from the scene and personally appear before the magistrate. Pa. R.Crim.P. 203, setting forth the requirements for issuance of search warrants, now provides, in relevant part:
Rule 203. Requirements for Issuance
(A) In the discretion of the issuing authority, advanced communication technology may be used to submit a search*158 warrant application and affidavit(s) and to issue a search warrant.
(B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(C) Immediately prior to submitting a search warrant application and affidavit to an issuing authority using advanced communication technology, the affiant must personally communicate with the issuing authority by any device which, at a minimum, allows for simultaneous audiovisual communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant.
Pa.R.Crim.P. Rule 203. Advanced communication technology (“ACT”) is further defined by the Rules of Criminal Procedure as “any communication equipment that is used as a link between parties in physically separate locations, and includes, but is not limited to: systems providing for two-way simultaneous communication of image and sound; closed-circuit television; telephone and facsimile equipment; and electronic mail.” Pa.R.Crim.P. Rule 103.
As noted by our Criminal Procedural Rules Committee, in its explanatory report prepared pursuant to adoption of these rules, these revisions were made with the purposeful goal of reducing the number of warrantless searches, because searches with a warrant are so strongly favored in this Commonwealth. The Committee explained its reasoning as follows:
[T]here are a sufficient number of ‘warrant’ situations in which time and convenience are important, and [the Committee] expects that the new ACT provisions will (1) reduce the amount of time it takes to obtain a warrant, and (2) increase the convenience to both af-fiant and issuing authority. In addition, the Committee agreed with the concept that proceeding with a warrant is favored over proceeding without a warrant, and using ACT will reduce the number of warrantless arrests and seizures.
Pa. Bull. vol. 32, no. 21 at 2595 (5/25/02) (emphasis added). Consequently, the adoption of these rules reflects a strong policy choice by our Court to maximize the use of judicially issued warrants by police in the field who wish to conduct searches, by providing a modern update to the warrant application process which facilitates rapid communication between them and the issuing magistrates. Although the rules do not require magistrates to use this process, as a rule of statewide applicability, it nevertheless permits the utilization of these procedures in every county of this Commonwealth, and, thus, insures and strengthens compliance with the warrant requirement of Article I, Section 8.
Adoption of this rule was a clear recognition by our Court that search warrant application procedures have advanced dramatically from the “Model T and vacuum tube radio” technology extant at the time of the Carroll decision, and now permits an officer to do in minutes what would have taken many hours, or perhaps even days, in 1925. As discussed supra, the length of time required to obtain a search warrant was a factor of considerable importance to the Carroll Court in finding that an immediate warrantless search on probable cause was justified, given the possibility the vehicle could be driven away before a magistrate could be found to consider a warrant application. However, this concern has been significantly lessened by
Nevertheless, I find it significant that, even though the time required to obtain a warrant was considerably longer in the 1920’s, the Carroll Court, as related above, expressed a warrant preference which was in alignment with our current state constitutional standard, i.e., “where the securing of a warrant is reasonably practicable, it must be used.” Carroll,
Moreover, in my view, the immobilization of a vehicle, pending a magistrate’s determination, better effectuates Article I, Section 8’s strong safeguards for individual privacy.
In summary, I determine that these policy interests strongly weigh in favor of not utilizing the Carney standard to assess whether searches of automobiles comport with the requirements of Article I, Section 8.
E. Summary of Edmunds factors
Based upon the foregoing examination of the Edmunds factors, I conclude that the text of Article I, Section 8, the unique and rich history surrounding its origins, its subsequent interpretation by our Court, relevant case law of other states, but especially those which share both our Commonwealth’s commitment to protecting the right of privacy and our regard for the warrant process as a vital procedural safeguard for that right, as well as important policy considerations, all support interpreting Article I, Section 8 as offering heightened protections of the right of individual privacy a person possesses in his or her automobile as a driver or occupant. Consequently, in my view, the present safeguard for this privacy right provided by the warrant process of Article I, Section 8 — requiring the authorization of any search of an automobile to be made by a neutral magistrate, except in those limited exigent circumstances where obtaining such a warrant is impracticable — should be maintained.
V. Conclusion
Because the search of Appellee’s vehicle in this case occurred while he was in custody, and, therefore, ample opportunity existed for the police to obtain a search warrant from a neutral magistrate prior to searching it, I would affirm the Superior Court’s decision in this matter suppressing the evidence recovered during the war-rantless search of its engine compartment. Our Court, by adopting the diluted federal automobile exception and sanctioning the search of Appellee’s vehicle under Article I, Section 8, based solely on the officer’s determination of probable cause, has eviscerated the strong privacy protections that amendment affords the people of Pennsylvania in their automobiles. By so doing, our Court heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright. I cannot join our Court in this endeavor, as it is so diametrically contrary to the deep historical and legal traditions of our Commonwealth. As Mr. Justice Jackson observed so persuasively over a half century ago, and which principle remains just as viable today: “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. U.S.,
Justice BAER joins this dissenting opinion.
. I am in accord with the view expressed by Chief Justice Castille in his concurring opinion in Commonwealth v. Perry,
. These factors are: (1) the text of the Pennsylvania constitutional provision; (2) the history of the provision, including Pennsylvania interpretative case-law; (3) relevant case-law from other states; and (4) policy considerations, including unique issues of state and local concern. Edmunds,
. Inasmuch as the extant competing views regarding the soundness of White’s rationale have been comprehensively articulated and debated by our Court previously, see e.g. Perry, McCree, Hernandez, supra, I need not discuss them herein.
. See supra note 2.
. Quincy’s Rep. 51 (Mass. 1761).
. Interestingly, it would appear that our country’s populace as a whole may possess a greater expectation of privacy in their automobiles than the high Court has traditionally recognized. See Henry F. Fradella, Quantifying Katz: Empirically Measuring 'Reasonable Expectations of Privacy’ in the Fourth Amendment Context, 38 American Journal of Criminal Law 289, 364 (2011) (noting that, respondents to a nationwide survey, ”[b]y a 52.3% to 35.8% margin, rejected the so-called ‘automobile exception’ to the Fourth Amendment warrant requirement as set forth in Carroll.”).
. 75 Pa.C.S.A. § 1301.
. 75 Pa.C.S.A. § 4702(a).
. See infra notes 12-13 and accompanying text.
. See generally Jaclyn Tropa, A Black Box for Car Crashes, N.Y. Times, July 21, 2013, at Bl.
. See 18 Pa.C.S.A. § 501 (defining vehicles as "[a] conveyance of any kind, whether or not motorized, that is designed to transport people or property.”).
. See State v. Lloyd,
. Although Colorado, Tennessee, Kentucky and Massachusetts recognize a greater right of privacy under their own constitutions, in some circumstances, these states have chosen to follow the federal automobile exception in applying the search and seizure provisions of their constitutions to automobile searches. See People v. Hill,
. Although, in addition to its reliance on the provision of the Montana Constitution governing searches and seizures, the Montana Supreme Court also founded its decision, in part, on Article II, Section 11 of its charter, which explicitly guarantees a right to privacy; however, as developed above, we have consistently interpreted Article I, Section 8 of our Constitution as incorporating the same "strong right of privacy,” Edmunds,
. A plurality of the Utah Supreme Court, which has interpreted the search and seizure provision of the Utah Constitution to provide a greater expectation of privacy than the Fourth Amendment, has endorsed the dual requirements of probable cause and exigent circumstances for a warrantless search of an automobile. State v. Anderson,
. For example, computer programs such as “Skype” or "FaceTime,” which permit instant two way audio and video communication over computers and smartphones, are now widely available, easy to use, and relatively inexpensive.
. The United States Supreme Court held in Chambers v. Maroney,