Commonwealth v. Alexander

Docket Watch 2021

By Matthew P. Cavedon

Pennsylvania’s highest court has extinguished the automobile exception to the warrant requirement. No warrant is required to search a car under the federal Fourth Amendment. In 1925’s Carroll v. United States, the U.S. Supreme Court held that probable cause authorizes warrantless seizures “of contraband goods in the course of transportation.”[1] Chief Justice William Howard Taft’s opinion found precedent dating back to the American Founding that distinguishes seizing items “concealed in a movable vessel where they could readily be put out of reach of a search warrant” from entry into homes.[2]

The Court elaborated on Carroll’s so-called “automobile exception” in 1970’s Chambers v. Maroney.[3] It held that the exception is justified by the exigent circumstances that are present when “an automobile [is] 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.”[4]

A reader could be forgiven for thinking that these justifications actually imply limits on warrantless searches of motor vehicles. For instance, what if the target auto were off the road and could not so easily drive away? The Supreme Court shut the door to questions like this in 1985’s California v. Carney.[5] That case concerned a search of a parked but “fully mobile ‘motor home’ located in a public place.”[6] The Court held that no warrant was required because even where a vehicle cannot be quickly moved, “the lesser expectation of privacy resulting from its use as a readily mobile vehicle” triggers the exception.[7] The reduced privacy results “from the pervasive regulation of vehicles capable of traveling on the public highways.”[8] In light of Carney, the automobile exception itself become immovable: If there is probable cause to search a car, then no warrant is necessary.

Enter the Pennsylvania Supreme Court case Commonwealth v. Alexander,[9] which held that the automobile exception is incompatible with the commonwealth’s constitution. This decision was particularly surprising given that a plurality of the same court approved of the automobile exception only six years earlier, in Commonwealth v. Gary.[10] The Gary plurality based its holding on four factors Pennsylvania uses in deciding when to distinguish the state constitution from the federal one: (1) Pennsylvania’s constitutional text; (2) its case law; (3) other states’ case law; and (4) policy.[11] Gary found these factors to weigh in favor of the automobile exception.

The Alexander court disagreed. I will omit the court’s lengthy stare decisis analysis.[12] But here are Alexander’s findings as to the four constitutional factors above:

(1) Pennsylvania’s constitutional provision governing searches and seizures protects “possessions” and “things,” not just the Fourth Amendment’s “persons, houses, papers, and effects.”[13] This broader language covers items on a person regardless of where he is, including in a car.[14]

(2) Pre-Gary precedent afforded Pennsylvanians more search protections than does federal constitutional jurisprudence.[15]

(3) “[M]ost states have adopted the federal exception”[16] . . .

(4) . . . but Pennsylvania has a strong policy favoring privacy—so much so that it rejects the federal good-faith exception to the warrant requirement. “If the United States Constitution tips the scale towards law enforcement needs in analyzing Fourth Amendment questions, our own charter does not . . . .”[17]

Three of the four factors, then, favor stronger auto search protections under the Pennsylvania constitution. Therefore, the federal automobile exception cannot stand in the Keystone State. Without it, motor vehicle searches are analyzed just like any others: “Obtaining a warrant is the default rule. If an officer proceeds to conduct a warrantless search, a reviewing court will be required to determine whether exigent circumstances existed to justify the officer’s judgment that obtaining a warrant was not reasonably practicable.”[18] The presence of a chassis and wheels changes nothing.

Alexander featured one concurring and three dissenting opinions. Justice Max Baer’s brief concurrence said that stare decisis is good, but that Gary was too wrong and too recent to merit its full protection.[19]

Chief Justice Thomas Saylor dissented. He found the majority’s reliance on the constitutional reference to “possessions” overwrought, given the Fourth Amendment’s mention of “effects.”[20] He noted that the commonwealth constitution lacks any rule requiring the exclusion of evidence obtained unconstitutionally.[21] He said that the majority’s ruling “impedes the effective enforcement of criminal laws in a fashion well beyond any impact that the framers might have envisioned.”[22]

Justice Kevin Dougherty’s dissent found no “special justification” for overruling Gary, as required by stare decisis.[23] But he did note his own “serious misgivings” about the automobile exception.[24]

Justice Sallie Mundy dissented based on stare decisis and her agreement with Gary.[25]

Alexander may be a minor protest against 100 years of federal search and seizure jurisprudence. But it did mark out a path for litigators to undermine longstanding federal doctrines using unique trends in state precedent. It also demonstrates that stare decisis only goes so far to protect decisions of recent vintage, and only works so much magic against the civil libertarian instincts of certain benches. These are lessons worth noting when litigating state constitutional issues.

Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at

[1] 267 U.S. 132, 149.

[2] Id. at 151.

[3] 399 U.S. 42.

[4] Id. at 51.

[5] 471 U.S. 386.

[6] Id. at 387.

[7] Id. at 391.

[8] Id. at 392.

[9] No. 30 EAP 2019, 2020 Pa. LEXIS 6439 (2020).

[10] 625 Pa. 183 (2014).

[11] Alexander, 2020 Pa. LEXIS 6439 at *21 (discussing Gary’s use of Commonwealth v. Edmunds, 526 Pa. 374 (1991)).

[12] See id. at *41–55.

[13] Id. at *57–58 (discussing Pa. Const. art. I § 8 (“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.”)); contrast U.S. Const. amend. IV.

[14] Id.

[15] Id. at *3–21.

[16] Id. at *22.

[17] Id. at *59–63.

[18] Id. at *73.

[19] Id. at *74–77 (Baer, J., concurring).

[20] Id. at *77 (Saylor, C.J., dissenting).

[21] Id. at *78–79.

[22] Id. at *80.

[23] Id. at *81 (Dougherty, J., dissenting).

[24] Id. at *84.

[25] Id. at *93 (Mundy, J., dissenting).

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