By: Michael P. Rellahan, Staff Writer, Daily Local News.

Lamb McErlane PC partner Dan Bush was quoted in this article.

A dark night in rural Chester County. A lonely stretch of road. A speeding, weaving automobile is spotted by a police officer on patrol, who begins a pursuit. When the driver rolls down his window after pulling over, the officer detects the unmistakable odor of burnt marijuana coming from the passenger compartment. Suspecting that there may be more weed in the car because the driver admits to smoking the drug, the officer orders the driver out of the car, puts him in the back of his patrol cruiser, and quickly begins to search the car.

That was then; it is no longer now.

Because of a recent ruling by the state Supreme Court, police officers across the Commonwealth will no longer be legally permitted to conduct such heretofore routine searches unless they have a search warrant signed by a judge, except in emergency circumstances.

The ruling in December reversed a previous decision by the state Supreme Court that gave officers the authorization to conduct roadside searches of automobiles without a warrant, and only by the articulation of “probable cause.” The 4-3 decision will now protect the privacy interests of motorists in the state who had in the recent past been subject to searches of their automobiles without the impartial review of a judge of the circumstances that would permit such an intrusion.

And it will soon have an impact on any number of cases making their way through the Chester County Common Pleas Court system, according to judges in the county Justice Center.

“It is a massive change in the law,” said veteran criminal defense attorney Daniel Bush of the West Chester law firm of Lamb McErlane. “It really is. I think you are going to see the number of roadside searches going down.

“Practically speaking, it will make roadside searches of vehicles more difficult for police men and women, but more protective of individual privacy rights,” said Bush, who wrote about the case that changed the law, Commonwealth vs. Alexander, in the Daily Local News earlier this month.

Bush knows of what he speaks. Following the Alexander decision, charges of possession with intent to deliver marijuana and illegal possession of a firearm against one of his clients were withdrawn by the Chester County District Attorney’s Office, citing the ruling that would have voided a search of the man’s car that turned up a Mason jar with one pound of marijuana in it and a loaded firearm.

The man faced a possible sentence of 10 years in state prison for the charges if convicted. Now, that possibility no longer hangs over his head.

County judges say they expect to see “quite a few” challenges to searches conducted along local roadsides that led to criminal charges, many of them drug-related. Judge Analisa Sondergaard said in an email Friday that she believed defense attorneys had filed suppression motions based on the Alexander ruling in at least five cases on her current trial list.

Judge Allison Bell Royer said she had received the first motion challenging evidence discovered in a roadside search earlier this month. “There are more coming, but I do not have any way of knowing hard numbers at this juncture,” she said.

Police across the county are adjusting.

“As soon as we were made aware of the court’s decision, we shared the information with our officers,” said Chief Gerald R. Simpson of the Southern Chester County Regional Police Department, which covers New Garden and West Grove. “Additionally within a day, the (District Attorney’s Office) provided legal guidance and instruction, which we again shared with our police supervisors to aid their officers’ efforts on the street.”

The department has already made policy adjustments to meet the court’s expectations in the policy governing warrantless searches and seizures, Simpson said, although he declined to identify how officers in the department would approach suspicious car stops in the future, citing confidentiality.

Simpson suggested, however, that his department, and others locally, would adjust to the new rules: don’t search the auto without a judges’ permission.

“All court decisions have varying degrees of impact on our delivery of policing and public safety services,” he said in an e-mail Friday. “It is the court’s purpose to ensure the protection of civil rights along with establishing that legal procedural expectations are followed by law enforcement.

“If that requires additional procedural steps, which may require more time devoted to the incident by law enforcement to meet those standards, then so be it,” said Simpson. “We respect the Court’s rulings and decisions and adjust our operations to meet their expectations.”

A spokeswoman for the District Attorney’s office confirmed that new directives had been sent to local police agencies.

“In our experience, the police departments in Chester County do a very good job of keeping up with changes in the law and keeping their officers informed,” said Michelle Bjork, the office’s communications director.  “As with all new changes in the law, we took immediate steps to make sure all Chester County police departments were aware of the change in the law, and have followed up with advice on how to handle matters moving forward.”

As far as how many cases may be affected by the change and the actual impact on the success of those cases, Bjork said the office was working to understand what will happen. “We have not done an overall survey of how many cases this affects, but rather are dealing with each situation on a case by case basis,” she said.

Bush said that the previous practice for roadside searches had been set in 2014, when a previous set of Supreme Court judges, all Republican, had allowed the state to adopt the federal courts’ “automobile exception,” that allowed police to search a driver’s car after stopping it without a warrant. The officer had only to say that he or she had “probable cause” to believe that the automobile contained “evidence of a crime.”

The reason for the exception was that autos are inherently mobile, and could be moved to conceal the evidence of a crime — such as illegal weapons or bundles of drugs.

But the Supreme Court’s new Democratic majority, in its decision, found that those circumstances did not outweigh a person’s right to privacy under the state Constitution. “Its heightened privacy protections do not permit us to carry forward a bright-line rule that gives short shrift to citizens’ privacy rights,” the majority wrote.

The decision was a victory for those privacy advocates who say police in the state frequently use probable cause as a pretext. In 2020, a published study reported that Philadelphia police were searching more than 2,000 people a month, on average, based on the automobile exception policy. About 80 percent of those searches involved Black drivers — even though police found contraband in only about 12 percent of the searches.

Philadelphia police stopped more than 250,000 motorists in five years based on an alleged odor of marijuana, though often those searches turned up no drugs at all, the analysis reported.

Bush, discussing the case, stressed that the ruling does not do away with car searches in suspicious circumstances.

“You now need a judge to review the reasons for a search under the warrant process to get in,” instead of just the notion of “probable cause. “Let’s go tell a judge and the judge make a determination. Police no longer can do it on their own; they need a judge.”

Read the Daily News Article.