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Insecure from unreasonable searches & seizures

| Saturday, May 3, 2014, 9:00 p.m.

Pennsylvanians are a lot less secure against unreasonable searches and seizures today because of a decision by the state Supreme Court last week.

In a 4-2 ruling released Tuesday, written by Justice Seamus McCaffery, the court held that Keystone State police officers no longer necessarily need a warrant to search motor vehicles. The decision is shocking not only for its cavalier dilution of a constitutional right more than two-and-a-quarter-centuries old but for its abject ignorance of history.

On the surface, the case that spawned this judicial overreach appears to have been a slam-dunk for police. On Jan. 15, 2010, motorist Shiem Gary was stopped by Philadelphia police, suspected of having too-heavily tinted windows on his SUV. Not only did the officers smell marijuana as they approached the vehicle, Mr. Gary admitted to having it in the vehicle. Two pounds were found under the hood. Gary ultimately was convicted on drug charges and sentenced to four years' probation.

So, what's the beef? After all, there was legal probable cause to search the vehicle, right? Yes and no. On appeal, the Superior Court agreed with Gary that the search was unlawful because it was conducted in the absence of any recognized exceptions to the warrant requirement. That is, Gary was in police custody prior to the search (though he did briefly flee but was recaptured at the scene) and, because he was in custody, there was no “imperative need for prompt police action.” Simply put, Gary, his SUV and the wacky tobacky weren't going anywhere. Nothing precluded police from seeking a search warrant from a judge.

The commonwealth appealed to the state Supreme Court. Not only did it hold that the search indeed was proper because of probable cause, it said “Article I, Section 8 of the Pennsylvania Constitution affords no greater protection than the Fourth Amendment to the United States Constitution.” And the court adopted for state purposes the “federal automobile exception” to the warrant requirement.

But the court, in effectively diminishing, if not negating, a state protection (originally Article X) that predates the Fourth Amendment by 15 years, eviscerates the checks and balances indigenous to the concept of “probable cause” and adopts a federal rule wholly not germane to such cases.

The gold standard in determining “probable cause” rests not in police but in the independent judgment of what's legally known as a “detached magistrate.” And as Justice Debra Todd clarified in dissent (joined by Justice Max Baer) — two Democrats, no less — the “federal automobile exception,” in its original intent, was designed as a tool against those running liquor in the 1920s and, in the modern era, thoroughly disfigured by the federal courts.

“Our court, by adopting the diluted federal automobile exception and sanctioning the search of (Gary'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,” Madame Justice Todd wrote. “By doing so, our court heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as a birthright.” The ruling, she added, is “diametrically contrary to the deep historical and legal traditions of our commonwealth.”

Law enforcement might love the ruling because it reduces the number of legal hoops through which it must jump to search a motor vehicle. But indeed it only makes the people supposed to be protected by our state and federal constitutions insecure from unreasonable searches and seizures and no doubt has greased the slippery slope that only encourages government shortcuts and abuse.

Deferring to the government — and not to the people — in such matters is a cause for concern most grave.

Colin McNickle is Trib Total Media's director of editorial pages (412-320-7836 or cmcnickle@tribweb.com).

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