Pennsylvania State and Federal Cell Phone and Car Searches Now With Out a Warrant

The Pennsylvania Supreme Court issued two important evidentiary decisions this week. The first decision focuses on the admissibility of drug evidence discovered after a warrantless automobile search. The second decision focuses on the admissibility of statements and other evidence gathered when police, with owner authority, listen in on drug transaction cell phone conversations.

The car search case is Commonwealth vs. Gary, 2014 PA Lexus 1119 (April 29, 2014). In this matter, Mr. Gary operated a motor vehicle in Philadelphia. He was pulled over due to excessive window tint. Upon approaching the car, the police smelled marijuana. The police asked Mr. Gary if there was anything in the car they should know about. He responded, “Some weed.” Mr. Gary was removed from the vehicle and placed in the patrol car, from which he later attempted to flee.

Pennsylvania automobile stop and search jurisprudence has long established that illegal window tint evidence alone constitutes probable cause that crime, a motor vehicle code violation, has occurred. This permits the police to conduct a motor vehicle stop. That is not the issue in this case. As well, additional probable cause of criminal activity is presented by marijuana odor and Mr. Gary’s legal blurt out that there is weed in the car. He was not detained and he was not under interrogation. Also, prior Pennsylvania Supreme Court precedent allows the police can take Mr. Gary out of the vehicle for any or no reason as a result of a lawful motor vehicle stop (the window tint).

As such, the car stop and initial contact with Mr. Gary is legal and has been for a long time. The unusual part of the Gary case is what the police did after Gary attempted to flee; they searched the vehicle without a warrant or consent, finding two pounds of marijuana in the trunk.

Mr. Gary filed a motion suppress in Philadelphia Municipal Court, which the court denied. He was found guilty of possession of marijuana with intent to deliver and given four four years probation. Mr. Gary appealed the case to the Philadelphia County Court of Common Pleas, which court affirmed the denial of the motion to suppress. Mr. Gary appealed to the Pennsylvania Superior Court claiming the search without a warrant was illegal. Superior Court agreed and reversed the conviction and vacated the evidentiary ruling in the case. The Commonwealth appeal the case to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court spent a significant amount of time reviewing the long history of Pennsylvania case law regarding automobile searches. Without repeating all here,the court eliminated any exigent or emergency need prior to police being able to search a vehicle without a warrant. Rather, they simply said police office who possess probable cause to stop and search a motor vehicle may search that vehicle at the scene without a warrant, If the probable cause to which the police claim as a basis to stop the case is sufficient thereto, then it would be sufficient in a warrant. The level of probable cause may be tested in a court of law. Commonwealth of Pennsylvania police departments no longer are required to secure a motor vehicle and impound it and then wait to secure a warrant before any search.

Importantly, the case does not eliminate the legal requirement that the Police must possess reasonable suspicion of a motor vehicle code violation, probable clause of a motor vehicle code violation, or probable cause that a crime has been committed for which evidence of that crime may be located in the motor vehicle subject to search without a warrant. This test is a fundamental due process requirement imbedded in every state and federal constitution. Every person charged with a crime who possesses an ownership or privacy interest in the vehicle searched is still able to file a Motion to Suppress. The significant aspect of the Gary decision is only that the police no longer need to secure an impound the vehicle and wait to secure a search warrant. The court determined that the inherent mobility of a motor vehicle is a sufficient basis for the Pennsylvania Constitution to allow motor vehicle search without a warrant but based upon probable cause.

The second case issued by the Pennsylvania Supreme Court this week focuses on the police using modern-day telephonic techniques to intercept and utilize cell phone communications to investigate crime. The frequency and widespread use of cell phones and cooperating witnesses prompted the Pennsylvania legislature to amend the Pennsylvania Wiretap Act, 18 Pa. C.S.A. §5701. These amendments were effective in 2012. I have extensively written on the new law for Pennsylvania’s legal newspaper, The Legal Intelligencer. Pleases visit my website webpages under articles published for an extensive discussion on the amendments to the wiretap back. http://www.phila-criminal-lawyer.com/Publications/204101201Hark-2.pdf

Suffice it to say for the purposes of this blog that the Pennsylvania Supreme Court ratified the police conduct of listening in on cellular telephone conversations via speakerphone or ear plugs. The court also ratified police conduct of receiving the authority of confidential informant to participate in and impersonate the owner in a cellular phone to secure evidence. The police conduct does not require a warrant or judicial oversight. The police may utilize any and all information gathered from the cell phone conversations to investigate and prosecute individuals committing crimes. Any evidence gathered is admissible in a court of law.

The widespread use of cell phones prompted the case to reach the Pennsylvania Supreme Court. The Delaware County Court of Common Pleas precluded the use of any police evidence secured via cell phone, suggesting that those conversations were subject to Pennsylvania’s Wiretap statute. However, the Pennsylvania Supreme Court merely reviewed the 2011 amendments to the Wiretap Act, which specifically precluded cellular telephones as a device subject to the act. More importantly, the Supreme Court indicated that listening in on conversations with the authority of one of the two recipients was a wholly prescribed and anticipated idea that act authorized as an evidence gathering Technique.

Please call me to discuss the search of your vehicle, the taping of your cellular phone conversations, or any other evidentiary issues secured in your potential for prosecution.

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