OPINION BY BOWES, J.:
I.M.S. appeals from the dispositional order entered by the juvenile court adjudicating him delinquent for the commission of acts constituting possession of marijuana and possession of drug paraphernalia. We affirm.
Juvenile was a passenger in a vehicle stopped as a result of an inoperable driver's side headlight. Officer Brian Barnes effectuated the traffic stop along with his partner. After the driver of the car, Jordan Cox, provided several inconsistent answers to questions regarding his travel, Officer Barnes asked him to exit the vehicle and step to the rear of the automobile. At that time, Mr. Cox admitted that Juvenile had been smoking marijuana in the car. He also informed the officer that he was unsure if Juvenile had marijuana in a drawstring knapsack Juvenile possessed in the vehicle. Officer Barnes then removed Juvenile from the car and questioned him. When he did so, he noticed marijuana
Juvenile acknowledged that his bag contained marijuana and paraphernalia. Officer Barnes then asked Mr. Cox for permission to search the car. Mr. Cox consented to a search of the vehicle. Officer Barnes, in the process of searching the car, also searched Juvenile's bag and found marijuana, rolling papers, a grinder, a scale, and a glass smoking pipe. The bag was not on Juvenile's person, but was located within reach in the backseat floor area behind the driver's seat. Juvenile was arrested and charged with delinquent acts of possessing marijuana and drug paraphernalia.
Juvenile filed a motion to suppress. The suppression court ruled that under Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (plurality),
Appellant's brief at 5.
In reviewing a juvenile court order denying a suppression motion, we consider the factual findings of the juvenile court and whether they are supported by record evidence. In re T.B., 11 A.3d 500, 505 (Pa.Super.2010). We consider only the evidence of the Commonwealth's witnesses and testimony of the defendant's witnesses that are not contradicted by the suppression record. Id. Where the evidence supports the juvenile court's factual findings, we are bound by them and will reverse only where the legal conclusions derived from those facts are in error. Id.
Juvenile argues that, under the Fourth Amendment and Article I, § 8 of the Pennsylvania Constitution, the warrantless search of his bag was unconstitutional. He contends that he had a reasonable expectation of privacy in his own backpack and that a warrantless search of his personal luggage, which was closed, violated his protected privacy interests. In addition, Juvenile maintains that Mr. Cox's consent to search the vehicle did not include consent to search Juvenile's personal belongings. In this respect, Juvenile also suggests that because Officer Barnes testified to conducting the search based on consent, the federal warrantless automobile jurisprudence articulated by the United States Supreme Court and recently adopted in Gary, supra, is not controlling.
The Commonwealth responds that since the officer had probable cause to search the vehicle after a lawful stop, Gary applies. It adds that because Pennsylvania has now adopted the federal warrantless automobile search exception, under United
The Fourth Amendment provides,
U.S. Const. Am. IV. Similarly, Article I, § 8 of the Pennsylvania Constitution reads,
Pa.Const. Art. I, § 8.
The United States Supreme Court has opined, under similar circumstances, "In determining whether a particular governmental action violates [the Fourth Amendment], we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed." Houghton, supra at 299, 119 S.Ct. 1297. As recently noted by this Court, the original purpose of the early search and seizure amendments was aimed at prohibition of general warrants. Commonwealth v. Haynes, 116 A.3d 640, 648 (Pa.Super.2015).
Indeed, anti-federalist writings condemned the original federal constitution's absence of a bill of rights, claiming that it would allow unreasonable searches and seizures. These writings, however, focused not on warrantless searches as occurred here, which were generally illegal because they were unauthorized by common law or statute save for limited circumstances, but on the issuance of general warrants. For example, Pennsylvania anti-federalist writer, Centinel,
Letters of Centinel, No. 1., reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates (Ralph Ketcham, ed. 1986). He added, "you yourselves are called upon to say, whether your houses shall continue to be your castles; whether your papers, your persons and your property, are to be held sacred and free from general warrants[.]" Id. (emphasis omitted).
Those Pennsylvania representatives who opposed the federal constitution at the Pennsylvania ratification convention issued a minority report complaining of the lack of a bill of rights. They proffered an amendment stating, "warrants unsupported by evidence, whereby any officer or
Modern day jurisprudence, however, has focused on warrantless searches and seizures, a problem that largely did not exist at the time of ratification due to the extremely limited authority possessed by peace officers. See Haynes, supra at 651 (discussing limited authority of constables). While some warrantless arrests would not have been considered against common law and therefore unreasonable, the type of warrantless arrest allowed at that time was far more circumscribed than exists today. See id.
Even more restricted was a warrantless search, which was essentially permissible only in the context of a lawful arrest or perhaps if authorized by statute for purposes of enforcing commercial laws, i.e., civil regulatory searches. Id. at 653 ("there was no common law authority for a warrantless search in a home, other than a search for the fleeing individual or of an individual's person incident to an arrest."); See also Thomas K. Clancy, The Importance of James Otis, Mississippi Law Journal, Vol. 82:2, 513 (2013) ("The [United States Supreme] Court's initial cases were notable for their premise that a warrant complying with the specifications of the Warrant Clause was required for all searches. The Court's only acknowledged exception in those early cases was for searches incident to arrest, which had a strong historical pedigree."); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925) ("Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant."); Collection Act of 1789, 1 Stat. 29 (federal statute authorizing warrantless searches of ships to prevent smuggling);
The Carroll Court did not discuss or marshal a single case where the Fourth Amendment was even suggested to apply to a ship seizure, perhaps because ships were not considered to fall within the ambit of the Fourth Amendment's protections. A more apt analogy was to personal carriages. Justice Scalia, who authored Houghton, supra, himself has analogized cars to carriages with respect to the Fourth Amendment. See United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 951 n. 3, 181 L.Ed.2d 911 (2012). In this respect, Carroll did cite to a short-lived 1815 statute, and wartime measure, authorizing warrantless searches by customs officers of any vessel, carriage, beast, or person whom they suspected possessed smuggled goods. Act of March 3, 1815, ch. 94 § 2, 3 Stat. 231. That law, never challenged on constitutional grounds, authorized customs officials
The common law did not authorize warrantless searches of any person traveling; rather, an officer could conduct a search pursuant to express statutory authority or after lawfully arresting the person. Thus, under the common law, absent statutory authority, peace officers could not conduct warrantless searches of those traveling via carriage unless done as a lawful search incident to an arrest. Nevertheless, the Houghton Court applied the Carroll holding
In Houghton, supra, Wyoming Highway Patrol effectuated a traffic stop of a car for speeding and driving with a broken brake light. Three individuals were in the car. While questioning the driver, an officer noticed a hypodermic syringe in the driver's shirt pocket. The driver admitted that he used the syringe for drugs. Police then removed the two passengers, both women, from the car and searched the passenger compartment for drugs. In the backseat was a purse that belonged to Houghton, one of the passengers. Inside, police found a brown pouch and black wallet. The brown pouch contained methamphetamine and a syringe and the black wallet held an additional syringe with methamphetamine.
The suppression court denied a suppression motion and a jury convicted Houghton. The Wyoming Supreme Court reversed, concluding that police did not have probable cause to believe the passenger had committed a crime and therefore there was no probable cause to search her personal items. Although asserting that its Fourth Amendment analysis should begin with an examination of the common law at the time of the passage of the Fourth Amendment, the Houghton Court proceeded directly to discussing Carroll, supra, which analyzed statutory law at the time of the founding rather than common law.
The Court then relied on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), which also had based its analysis on Carroll. The Ross Court found that statutes allowing warrantless searches of vessels and beasts that imported merchandise showed that lawful searches of the vessel included any container that could contain the object of the search. Houghton, supra at 301, 119 S.Ct. 1297 (citing Ross, supra at 820 n. 26, 102 S.Ct. 2157). Accordingly, the Houghton Court reasoned that where "there is probable cause to search for contraband in a car, it is reasonable for police officers-like customs officials in the founding era-to examine packages and containers without a showing of individualized probable cause for each one." Houghton, supra at 302, 119 S.Ct. 1297.
Houghton, however, did not have a substantial impact in Pennsylvania when it was decided since, at the time, Pennsylvania case law interpreting Article I, § 8 of our state constitution provided Pennsylvanians with greater privacy protections. A warrantless search of an automobile was permissible if police had probable cause to search and exigent circumstances existed beyond the mobility of the car. See Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995); see also Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 662 A.2d 1131 (1995), abrogated by Gary, supra.
In Gary, supra, the Pennsylvania Supreme Court switched course from its earlier mid-1990's cases that provided greater protections to citizens of Pennsylvania in their automobiles. It aligned Pennsylvania jurisprudence with the United States Supreme Court's interpretation of the Fourth Amendment with regard to vehicle searches. In Gary, Philadelphia police observed a vehicle with tinted windows that they believed violated the Motor Vehicle Code. After stopping the automobile, the police detected the smell of marijuana emanating from the vehicle. Gary told police that there was marijuana in the car and police summoned a canine unit to conduct a sniff of the vehicle. Gary, who had been placed in the back of a police cruiser, then attempted to flee but was captured. Police found two pounds of marijuana under the front hood of the car.
The Gary Court, nonetheless, did not face the situation where a passenger was also in the automobile and whether probable cause to search the car also authorized a search of a passenger's belongings therein. However, in light of the Gary Court's clear holding that Pennsylvania automobile search and seizure law and federal Fourth Amendment jurisprudence are coextensive, Houghton necessarily now applies.
Application of Houghton herein compels affirmance. Moreover, in this case, unlike Houghton, police did have probable cause to believe that Juvenile was committing a crime. Here, the officer had probable cause to arrest Juvenile after he admitted to possessing drugs. The officer, therefore, would have been authorized to conduct a search incident to arrest of the backpack. Juvenile's claim fails.
Dispositional order affirmed.
Frankly, the historical distinction between statutory authorization and common law authority is an important one. Here, the First Congress' passage of statutory law permitting limited warrantless searches of commercial vehicles and merchants is evidence that a modern day statute authorizing such limited power to government officials would not run afoul of the Fourth Amendment. It, however, is not altogether strong evidence that police could conduct warrantless searches based on the common law. See e.g., Tracy Maclin, The Complexity of The Fourth Amendment: A Historical Review, 77 B.U. L.Rev. 925, 945 (2014) (discussing colonial Massachusetts opposition to ex officio warrantless searches by customs officers).