Criminal Law Blog

CRIMINAL LAW: Supreme Court Allows Use of Three-Year-Old Child's Out-of-Court Statements About Abuse

Posted by Douglas C. Plank on Tue, Jul 28, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Doug Plank—Senior Attorney, National Legal Research Group

     In a unanimous decision, the U.S. Supreme Court recently held in Ohio v. Clark, 135 S. Ct. 2173 (2015), that statements that children have made to teachers about possible abuse can be used as evidence at criminal trials arising from the alleged abuse, even if the children are not competent to testify in court.

     The facts in Clark showed that the preschool teacher of a three-year-old boy had noticed bruises on his body, and when she asked him how he had gotten the bruises, he told her that his mother's boyfriend had hit him when his mother was not home. The teacher notified the police, and the boyfriend was ultimately charged with child abuse. At the boyfriend's trial, the State introduced into evidence the statements that the child had made to the teacher, but the child did not testify, because of a statute precluding the testimony of children under 10 years old if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Id. at 2178 (quoting Ohio R. Evid. 601(A)). The trial judge determined that pursuant to this rule, the child was not competent to testify.

     In finding that the trial court had properly allowed the hearsay evidence, the Court rejected the boyfriend's argument that the use of the evidence violated his Sixth Amendment right to confront witnesses, as interpreted by Crawford v. Washington, 541 U.S. 36 (2004). The Court found that because the child's statements to his teacher were not testimonial, their admission was not precluded by Crawford. As support for this finding, the Court noted that there was no indication that the primary purpose of the teacher's conversation with the child had been to gather evidence for a future prosecution. On the contrary, the Court concluded, it appeared that the first objective of the teacher's questioning had been to protect the child. The Court's ruling reversed the holding of the Ohio Supreme Court, which had determined that the child's statements were testimonial because the purpose of the teacher's questions had not been to deal with an existing emergency but, rather, to gather evidence potentially relevant to a subsequent criminal prosecution.

Topics: criminal law, Douglas C. Plank, The Lawletter Vol 40 No 6, out-of-court statements, evidence of abuse, three-year-old

IMMIGRATION LAW: Analyzing State Drug Paraphernalia Offense for Purposes of Removal Under INA

Posted by Suzanne L. Bailey on Thu, Jul 9, 2015 @ 10:07 AM

The Lawletter Vol 40 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

     Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

     Mr. Mellouli was a U.S.-educated lawful permanent resident who worked as an actuary, taught college-level mathematics, and was engaged to be married to a U.S. citizen. The tablets in a sock were discovered during a postarrest search in a Kansas detention facility following an arrest for driving under the influence and driving with a suspended license. He was charged with, and pleaded guilty to, misdemeanor possession of drug paraphernalia to store a controlled substance and driving under the influence. Upon the successful completion of probation, Immigration and Customs Enforcement officers arrested him as deportable based on the paraphernalia conviction.

      The BIA argued its case as an exception to the general rule. According to the BIA, the so-called "categorical approach" that applies in determining whether a drug possession conviction is a deportable offense under INA section 237(a)(2)(B)(i) should not apply to drug paraphernalia convictions. As explained in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), under the categorical approach, immigration judges are supposed to look at the conviction, not the underlying conduct. If the equivalent state offense does not involve a controlled substance as defined in 21 U.S.C. § 802, then it is not a deportable offense. In this case, where the controlled substance was not identified in the criminal charge and where Kansas law criminalizes a number of substances that are not listed as controlled substances under federal law, it had to be presumed that the conviction did not involve a controlled substance as defined by federal law. Thus, under the categorical approach, Mr. Mellouli's conviction could not be a deportable offense. Mellouli, 135 S. Ct. at 1987-88. The BIA, however, relied on a prior decision, In re Martinez Espinoza, 25 I. & N. Dec. 118 (2009), which had held that because paraphernalia charges relate to the drug trade in general, there was no reason to show that the type of controlled substance involved was one that was defined under federal law. 135 S. Ct. at 1988. Justice Ginsberg, writing for the majority, rejected the disparate approach to drug paraphernalia convictions, pointing out that "[t]he incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance." Id. at 1989 (Court's emphasis). Because the BIA's interpretation "makes scant sense," it was not entitled to deference. Id. The Court also rejected an additional rationale offered by the Eighth Circuit, that is, "that a state paraphernalia possession conviction categorically relates to a federally controlled substance so long as there is 'nearly a complete overlap' between the drugs controlled under state and federal law." Id. (quoting Mellouli, 719 F.3d at 1000). The construction of INA section 237(a)(2)(B)(i) "must be faithful to the text, which limits the meaning of 'controlled substance,' for removal purposes, to the substances controlled under [21 U.S.C.] § 802." Id. at 1990-91. Justice Thomas, with Justice Alito joining, dissented.

1The personal use exception—"other than a single offense involving possession for one's own use of 30 grams or less of marijuana"—was the subject of a December 2014 Lawletter blog post. See Suzanne Bailey, Standard for Evaluating Criminal Conviction in Removal Proceedings Based on Conviction, 39 Lawletter No. 9, at 33 (posted Dec. 4, 2014).

Topics: removal, immigration, The Lawletter Vol 40 No 5, controlled substance, drug paraphernalia, Suzanne Bailey, Mellouli v. Lynch, deportation

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of Enactment of Medical Marijuana Law

Posted by Mark V. Rieber on Thu, Jun 11, 2015 @ 15:06 PM

The Lawletter Vol 40 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

      In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth's new medical marijuana law ("the Act") in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth's argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

     The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. "Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue." Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant's motion to suppress.

Topics: warrant needed for probable cause, criminal, Mark V. Rieber, search warrant, The Lawletter Vol 40, No 4, medical marijuana law

CRIMINAL LAW: Search Warrants—Good-Faith Exception

Posted by Douglas C. Plank on Mon, Apr 13, 2015 @ 17:04 PM

The Lawletter Vol 40 No 2

Doug Plank, Senior Attorney, National Legal Research Group

      In a recent case from the U.S. Court of Appeals for the Second Circuit, the court held that a search warrant obtained to search the defendant's residence for evidence of child pornography was not supported by probable cause, because the information supplied by the affiant was stale. United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015). In seeking the warrant, the affiant referenced a single incident when someone had accessed thumbnail images of child pornography on the Internet from the defendant's Internet protocol address, which had occurred nine months earlier. The affidavit also included boilerplate language about how persons who look at and collect images of child pornography generally hold on to such images indefinitely. The court concluded that the evidence was equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window, and it held that absent any facts to show that the defendant was a collector of child pornography likely to hoard pornographic files, a single incident of access did not create a fair probability that child pornography would still be found on the defendant's computer months later.

     However, the court further found that the good-faith exception to the exclusionary rule applied, even though the same officer who obtained the warrant was the affiant in a previous case involving similar facts, United States v. Coon, No. 10-CR-110A, 2011 WL 1871165 (W.D.N.Y. May 16, 2011), in which the court held that one-year-old evidence of possession of child pornography was too stale to create probable cause. The court rejected the argument that the officer's knowledge of the prior case served to alert him to the deficiency of his affidavit in the case before it, and found that the officer's knowledge that the court in Coon had found the evidence of possession too stale to create probable cause could not have given him notice that his affidavit in this case would be found equally deficient.

Topics: criminal law, search warrant, good-faith exception to exclusionary rule

CRIMINAL LAW: Prosecutorial Misconduct in Closing Argument

Posted by Suzanne L. Bailey on Wed, Mar 25, 2015 @ 11:03 AM

The Lawletter Vol 40 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

     A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.

     The prosecutor used a Power Point presentation made up of approximately 250 slides in closing argument. Over 100 of those slides had the heading "DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER." Two slides had the heading "DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE," and three had the heading "DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT ROBBERY." Another slide superimposed the words "GUILTY BEYOND A REASONABLE DOUBT" over the defendant's booking photograph. The lettering was in bright red. Id. at 981, ¶ 12. Yet another slide proclaimed "Defendant Walker is GUILTY as an ACCOMPLICE to murder because he SPLURGED ON FRIVOLOUS THINGS." This was followed by a slide listing the items he had bought: two safes, a Wii and several games, and a $200 dinner at Red Lobster. The next slide was a photograph of the defendant and his family happily eating. Id. ¶ 13. Yet another slide was a photograph of money seized by police with the heading "MONEY IS MORE IMPORTANT THAN HUMAN LIFE," although there was no evidence that the defendant or anyone else had uttered those words. Id. at 982, ¶ 14.

     Near the end of the presentation was a slide depicting an in‑life photograph of the victim with a superimposed heading reading "DEFENDANT'S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE" and text detailing the money stolen and its distribution among the participants, including the defendant. Immediately following that slide was one with the previously mentioned photograph of the defendant and his family eating dinner at the Red Lobster, with the caption "THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY." (This was apparently based on a comment the defendant had made to his son.) Following that slide came one with the defendant's booking photograph, with the caption "WE ARE GOING TO BEAT THIS," contrasted with the final image, which was an in‑life photograph of the victim. Id. at 982-83, ¶ 15. Defense counsel did not object to the Power Point presentation. Id. at 983, ¶ 16.

     The court emphasized that good trial advocacy encourages the creative use of multimedia resources, such as Power Point, and acknowledged that closing argument presents an opportunity for counsel to argue reasonable inferences from the evidence. "However, advocacy has its limits, and a prosecutor has the duty to subdue courtroom zeal, not to add to it, in order to ensure the defendant receives a fair trial." Id. at 984, ¶ 20. The court observed that "where [as in this case] a defendant raises [prosecutorial misconduct] for the first time on appeal, the defendant must" show not only that "the prosecutor's conduct was both improper and prejudicial in the context of the entire trial," but "that the misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice," id. at 985, ¶ 22; the court had "no difficulty holding the prosecutor's conduct in this case was improper," id. ¶ 23.

     The issue at trial was the extent of the defendant's involvement in the crimes, and the State's Power Point presentation obfuscated the complicated facts presented to the jury. Id. ¶ 24. The volume of slides shown to the jury just before it was excused for deliberations was presumptively prejudicial. Rejecting the court of appeals' approach, which minimized the prejudicial impact due to the State's strong evidentiary case, the court explained that in evaluating prejudice, the focus must be on the misconduct and not on the properly admitted evidence. Id. at 985-86, ¶ 25. Likewise, the court rejected the lower appellate court's "suggestion that to be entitled to a fair trial, [the defendant] had the duty to come up with some plausible defense theory beyond the State's failure to meet its burden of proof and to produce evidence in support." Id. at 986, ¶ 26.

     In order to avoid such egregious violations of defendants' rights in the future, the court encouraged trial judges to preview slides before they are presented to the jury. "Providing the presiding judicial officer with a printed copy of the PowerPoint slides in advance is not burdensome and could curtail the necessity of a retrial due to misconduct." Id. ¶ 27.

Topics: criminal, guilt beyond reasonable doubt, prosecutorial misconduct, presumption of innocence

CRIMINAL LAW: Punitive Effect of Retroactive Application of Sex Offender Registration Requirements

Posted by Mark V. Rieber on Thu, Mar 19, 2015 @ 09:03 AM

The Lawletter Vol 39 No 12

Mark Rieber, Senior Attorney, National Legal Research Group

      Typically, the courts find that the retroactive application of sex offender registration statutes does not violate the Ex Post Facto Clause, because such statutes are found to be nonpunitive. See, e.g., Smith v. Doe, 538 U.S. 84 (2003). Recently, however, the Supreme Judicial Court of Maine held that particular amended provisions of the Maine Sex Offender Registration and Notification Act ("SORNA"), as applied to Doe, the registrant in the case before it, Doe v. Anderson, 2015 ME 3, 2015 WL 149030 (not yet released for publication), were punitive and that their retroactive application to Doe violated the bill of attainder clause in the state constitution. The amended statutory provisions at issue in Doe were a retroactively added list of offenses to which SORNA applied, including the offense for which the registrant had been convicted, and an amendment that changed the triggering event for a duty to register: That duty no longer required a court determination but only a simple notification from the court or one of the named agencies.

     Applying the seven factors articulated by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), as "guideposts," the same analysis Maine uses under the Ex Post Facto Clause, the court in Doe determined that the retroactive application of SORNA's registration requirement to Doe was punitive. The court found that the amendments caused Doe's original sentence to be modified and enhanced and that retroactive imposition of SORNA registration requirements on Doe was a sanction historically regarded as punishment. Having considered all of the Mendoza-Martinez factors, the court concluded that retroactive application of SORNA's registration requirement to Doe was punitive in effect.

     In addition, the court found that the duty to comply with SORNA had been imposed on Doe without a judicial trial (another requirement for a bill of attainder) because at the time Doe was sentenced, his crime was not deemed to be a sex offense and, thus, there was no judicial determination that Doe was a sex offender and no judicial order incorporating the registration obligation into his criminal sentence. Finally, as to the other requirement for a bill of attainder, the court found that the SORNA amendment in question may have targeted a specific group based on its members' prior conduct. This requirement, however, was not addressed by the trial court, because it had concluded that SORNA was not punitive. The appellate court therefore remanded the matter for further consideration on this issue.

Topics: criminal, retroactive application, sex offender, registration requirements

CRIMINAL LAW: Search and Seizure—Cell Phone Location Tracking

Posted by Noel King on Mon, Dec 29, 2014 @ 10:12 AM

The Lawletter Vol 39 No 10

Doug Plank, Senior Attorney, National Legal Research Group

    The Florida Supreme Court recently held that the warrantless tracking of an individual through the use of real-time cell site location information was a violation of that individual's rights under the Fourth Amendment. In Tracey v. State, No. SC11-2254, 2014 WL 5285929 (Fla. Oct. 16, 2014), the defendant had been convicted of possession of cocaine and other offenses after police officers apprehended him while he was transporting the cocaine by automobile. The evidence showed that the officers had been able to monitor the movements of the defendant and his accomplice, who was located in another city, by following the cell site location information given off by their cell phones as the defendant placed calls to the accomplice. By using the information showing the location of the accomplice, the officers were able to establish where to set up surveillance for the moment that the defendant would meet the accomplice and exchange the cocaine.

    The court determined that even though the officers had secured a warrant authorizing the installation of a "pen register" and "trap and trace device" as to the defendant's cell phone, such a warrant allowed only the recovery of information regarding the numbers of the phones that the defendant had previously called and received calls from and did not extend to tracking the defendant's location in real time. The court further found that the defendant had a reasonable expectation of privacy in the real-time cell site location information provided by his cell phone and that he had not voluntarily conveyed that information to his service provider for any purpose other than to enable the use of his cell phone for its intended purpose.  Accordingly, the court held that the failure of the officers to seek a search warrant for the specific purpose of using that location information was a violation of the Fourth Amendment.

Topics: Fourth Amendment, search and seizure, cell phone, warrantless, tracking

CRIMINAL LAW: Warrantless Search of Cell Phones

Posted by Gale Burns on Tue, Aug 12, 2014 @ 12:08 PM

The Lawletter Vol 39 No 6

Doug Plank, Senior Attorney, National Legal Research Group

     In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court's general rule that a person's belongings may be searched without a warrant incident to an arrest of that person, the Court found that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.

     The Court recognized that its decision will have an impact on the ability of law enforcement to combat crime, but it noted that some case-specific exceptions to the warrant requirement would still be applicable to the search of cell phones, such as the presence of exigent circumstances that would require an immediate search to prevent the imminent destruction of evidence or to locate an immediately dangerous instrumentality, such as explosives.

Topics: legal research, cell phone, warrantless search, U.S. Supreme court, Doug Plank, criminal law, not analogous to physical containers, Riley v. California, only case-specific exceptions applicable

CRIMINAL LAW: Driving Under the Influence of a Proscribed Drug or "Its Metabolite"

Posted by Gale Burns on Tue, Jul 22, 2014 @ 10:07 AM

The Lawletter Vol 39 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Arizona is one of seven states that make it unlawful for a driver to be in actual physical control of a motor vehicle while there is a proscribed drug or "its metabolite" in the operator's body. Ariz. Rev. Stat. § 28-1381(A)(3). (The other six zero-tolerance jurisdictions are Delaware, Georgia, Indiana, Minnesota, Pennsylvania, and Utah. Joshua C. Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6a-517, 2013 Utah L. Rev. OnLaw 195, 212 n.14 (2013).) In State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014), the Supreme Court of Arizona was asked to determine whether the phrase "its metabolite" includes Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), a nonimpairing metabolite of marijuana, which is a drug proscribed by statute. The court concluded that it does not.

     In Montgomery, the driver was stopped for speeding and making unsafe lane changes. After admitting to smoking some "weed" the night before, the driver voluntarily submitted to a blood test that revealed Carboxy-THC in his blood. He was charged with driving under the influence of a drug, in violation of section 28-1381(A)(1), and driving while a metabolite of a proscribed drug was in his body, in violation of section 28-1381(A)(3). The justice court dismissed the charge based on the presence of "its metabolite," and the State voluntarily dismissed the driving-under-the-influence charge. The superior court affirmed the justice court, but the court of appeals reversed, finding that the statute included the metabolite Carboxy-THC and that inclusion was not overbroad. State ex rel. Montgomery v. Harris ex rel. County of Maricopa, 301 P.3d 580 (Ariz. Ct. App. 2013). The state supreme court vacated the opinion of the court of appeals and affirmed the dismissal of the "its metabolite" charge, with one justice dissenting.

     The court found "its metabolite" to be ambiguous because it could mean all of a proscribed drug's metabolites, some of its metabolites, or only metabolites that cause impairment. The driver argued that the phrase referred to only Hydroxy-THC, the initial product of the metabolism of THC. The State insisted that the statute referred to all metabolites, including the nonimpairing Carboxy-THC, which was tested for. Significantly, the impairing Hydroxy-THC does not remain in the blood for very long and quickly converts to Carboxy-THC, which is why the State tests for Carboxy-THC but not for Hydroxy-THC. Carboxy-THC, on the other hand, can remain in the body for as many as 28 to 30 days after the ingestion of marijuana.

     Looking to the legislative history, which demonstrated an intent to prevent impaired driving, the court concluded that "its metabolite" is limited to metabolites capable of causing impairment. To hold otherwise could lead to the absurd result that a driver could be found guilty regardless of how long the metabolite remained in his or her body or whether it had an impairing effect. Furthermore, given that Arizona legalizes marijuana for medicinal purposes, the State's overinclusive reading could criminalize legitimate use after the impairing effects have worn off. Finally, a broad reading of "its metabolite" could allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.

     This decision in Montgomery hardly leaves Arizona without the ability to prosecute those driving under the influence of proscribed drugs. The prosecution may still establish criminal liability by evidence of impairment. Moreover, as the State admitted, it is possible to test for the impairing Hydroxy-THC, and the State may choose to do so. The decision merely serves to ensure that only those who are actually driving while impaired can be convicted.

Topics: legal research, John Buckley, criminal law, proscribed drug, metabolite, zero tolerance, Arizona Supreme Court, State ex rel. Montgomery v. Harris, "metabolite" definition ambiguous in sta, driving under the influence, narrow reading of statute, The Lawletter Vol 39 No 5

CRIMINAL LAW: Search and Seizure—Warrantless Search of Motor Vehicle

Posted by Gale Burns on Tue, Jun 3, 2014 @ 12:06 PM

The Lawletter Vol 39 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

     A plurality of the Supreme Court of Pennsylvania, with one justice concurring in the result, recently held that where a warrantless search of a motor vehicle is supported by probable cause, article I, section 8 of the Pennsylvania Constitution affords no greater protection than does the Fourth Amendment to the U.S. Constitution. Commonwealth v. Gary, No. 26 EAP 2012, 2014 WL 1686766 (Pa. Apr. 29, 2014). Accordingly, the court adopted 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 the motor vehicle.

     In so holding, the court examined the history of the U.S. Supreme Court decisions on the issue of warrantless searches of vehicles, as well as its own history of decisions on the issue, which sometimes indicated that exigent circumstances are required in addition to probable cause, thus diverging from U.S. Supreme Court precedent. The court recognized that as its detailed review of its jurisprudence in the area of automobile searches demonstrated, it "has been unable to articulate a consistent, clear, and readily applicable majority expression of the automobile exception to the warrant requirement."  Id. at *19. The court concluded that there was no compelling reason to interpret its constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, Gary held that in Pennsylvania, 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."  Id. at *32

Topics: legal research, search and seizure, warrantless search, motor vehicle, Pa. Supreme Court, Commonwealth v. Gary, federal automobile exception to warrant requiremen, Pa. Const. not more prohibitive than Fourth Amendm, criminal law, Mark Rieber, The Lawletter Vol 39 No 4

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