warrant requirement in Pennsylvania

2025The trial court reasoned that this evidence was properly seized pursuant to the plain view doctrine, relying in part on Commonwealth v. McCree, 924 A.2d 621, 629-31 (Pa. 2007), which addressed when evidence seized from a car is admissible pursuant to the plain view exception to the warrant requirement.

2024Id. at 625 (Eakin, J., OAJC).11 After resolving confusion over application of the plain view doctrine, Justice Eakin then considered whether an exception to the warrant requirement applied to satisfy the lawful access prong. 11 At the time McCree was decided, the lower courts had begun to disregard the third element of the plain view test.

2026As we stated in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), Article I, Section 8 uses more expansive terminology than its federal counterpart, and “this difference in language suggests that the warrant requirement of Article I, Section 8 was intended to protect an individual’s privacy interest in all of his or her possessions[.]” Alexander, 243 A.3d at 187 (quoting Commonwealth v. Gary, 91 A.3d 102, 143 (Pa. 2014) (Todd, J., dissenting)).

2026[J-20-2025] [MO: Brobson, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT PUNXSUTAWNEY HUNTING CLUB, INC., : No. 23 WAP 2023 AND PITCH PINE HUNTING CLUB, INC., : : Appeal from The Order of the Appellants : Commonwealth Court entered : September 29, 2023, at No. 456 : MD 2021. v. : : ARGUED: April 9, 2025 : PENNSYLVANIA GAME COMMISSION, AND : MARK GRITZER, IN HIS OFFICIAL : CAPACITY AS AN OFFICER OF THE : PENNSYLVANIA GAME COMMISSION, : : Appellees : CONCURRING OPINION JUSTICE MUNDY DECIDED: JULY 21, 2026 In Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), a majority of this Court

2026As we stated in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), Article I, Section 8 uses more expansive terminology than its federal counterpart, and “this difference in language suggests that the warrant requirement of Article I, Section 8 was intended to protect an individual’s privacy interest in all of his or her possessions[.]” Alexander, 243 A.3d at 187 (quoting Commonwealth v. Gary, 91 A.3d 102, 143 (Pa. 2014) (Todd, J., dissenting)).

2026As we stated in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), Article I, Section 8 uses more expansive terminology than its federal counterpart, and “this difference in language suggests that the warrant requirement of Article I, Section 8 was intended to protect an individual’s privacy interest in all of his or her possessions[.]” Alexander, 243 A.3d at 187 (quoting Commonwealth v. Gary, 91 A.3d 102, 143 (Pa. 2014) (Todd, J., dissenting)).

2026On appeal to this Court, the licensee claimed, inter alia, that under Birchfield, in the absence of exigent circumstances, the arresting officer had to obtain a warrant for a test of her blood, and his failure to do so required that her appeal be sustained. [See i]d. at 19. [This Court] concluded that Birchfield was not applicable because “[b]y its own language Birchfield does not apply 5 to implied consent laws that merely impose civil penalties.” Id. at 21 (citing Birchfield, . . . [ 579 U.S. at 477 [)] (“Petitioners do not question the constitutionality of [implied[ ]consent laws that impos

2026On appeal to this Court, the licensee claimed, inter alia, that under Birchfield, in the absence of exigent circumstances, the arresting officer had to obtain a warrant for a test of her blood, and his failure to do so required that her appeal be sustained. [See i]d. at 19. [This Court] concluded that Birchfield was not applicable because “[b]y its own language Birchfield does not apply 5 to implied consent laws that merely impose civil penalties.” Id. at 21 (citing Birchfield, . . . [ 579 U.S. at 477 [)] (“Petitioners do not question the constitutionality of [implied[ ]consent laws that impos

2026See Simonson, 148 A.3d at 797 ____________________________________________ frisk, outside of the confines of Terry or any other exception to the warrant requirement. - 11 - (listing the several exceptions, including stop and frisk and search incident to arrest).8 Therefore, given our disposition of Correa’s first claim, this claim could not provide a basis for relief.

2026“Exceptions to the warrant requirement include, inter alia, the stop and frisk exception, Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (quotation marks and citation omitted).

2026The Commonwealth counters the suppression court properly declined to suppress the physical evidence, where law enforcement entered the residence with consent and, while performing a legitimate protective sweep for police ____________________________________________ 17 Another recognized exception to the warrant requirement exists for “consent, voluntarily given.” Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).

2021It is well-settled that an established exception to the warrant requirement is “consent, voluntarily given.” Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000); see also id. at 888-89 (where, as here, “the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus.”).

2024President Judge Lazarus and Judge Lane join this dissenting opinion. ____________________________________________ See, e.g., Commonwealth v. Alexander, 243 A.3d 177 , 202 (Pa. 2020) (holding the Pennsylvania constitution affords greater protection than the federal constitution for Pennsylvanians subjected to warrantless car searches); Commonwealth v. Edmunds, 586 A.2d 887, 905-06 (Pa. 1991) (declining to adopt the federal good faith exception to the Pennsylvania constitution’s warrant requirement). -6-

2024L. REV. 203, 203 (1976). 4 Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (holding that the federal “automobile exception” to the warrant requirement is invalid under Article I, Section 8 of the Pennsylvania Constitution). 5 Alexander, 243 A.3d at 203 (quoting Commonwealth v. Edmunds, 586 A.2d 887, 898 (Pa. 1991)). 6 Id. at 181. [J-6-2024, 85 MAP 2023] - 3 exception that controls the matter before us.

2023Opperman discussed two factors that were pertinent to its reasonableness analysis: the “inherent mobility” of a vehicle makes “rigorous enforcement of the warrant requirement … impossible.” Id. at 367 .

2023Opperman discussed two factors that were pertinent to its reasonableness analysis: the “inherent mobility” of a vehicle makes “rigorous enforcement of the warrant requirement … impossible.” Id. at 367 .

2022See Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super. 1999) (“[P]robable cause alone will not support a warrantless search or arrest in a residence ... unless some exception to the warrant requirement is also present.

2020It is well established that “probable cause alone will not support a warrantless search or arrest in a residence . . . unless some exception to the warrant requirement is also present . . . . [A]bsent consent or exigent circumstances, private homes may not be constitutionally entered to conduct a search or to effectuate an arrest without a warrant, even where probable cause exists.” Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa.Super.1999) . . . . -7- J-S31008-20 & J-S31009-20 Commonwealth v. Johnson, 68 A.3d 930, 935-36 (Pa.Super. 2013).

2025Shortly after Birchfield (but before Mitchell), a plurality of this Court in Myers grappled with the meaning of Birchfield and McNeely, and similarly concluded that implied consent statutes cannot serve as “an independent exception to the warrant requirement,” separate from that provided for voluntary consent. 133 Although Myers ultimately rested 131 See State v. Mitchell, 914 N.W.2d 151, 157-62 (Wis. 2018), rev’d, Mitchell, 588 U.S. at 857 (plurality). 132 Mitchell, 588 U.S. at 846 (plurality). 133 Myers, 164 A.3d at 1172-73 (plurality). [J-43-2024] - 38 upon statutory grounds, the plurality

2024The Jones-Williams Court held that where no actual consent is given, implied consent under Sections 1547 and 3755 cannot constitutionally provide an independent exception to the warrant requirement, specifically noting that “statutorily implied consent cannot take the place of voluntary consent.” Id. at 537 , 542- 43 (quoting Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017)).

2023“One well-recognized exception to the warrant requirement is the protective sweep.” Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).

2023“One well-recognized exception to the warrant requirement is the protective sweep.” Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).

2024Smith, 285 A.3d at 332 ; see also McMahon, 280 A.3d at 1073 (explaining that “Alexander addresses the automobile exception to the warrant requirement, not the plain view exception”); Lutz, 270 A.3d at 576 (holding -7- that “Alexander did not impact [the trial court’s] ruling because its decision did not ‘rest upon the analytical underpinnings of the automobile exception to the warrant requirement, but rather upon an application of the plain view’” exception); Commonwealth v. Davis, 287 A.3d 467, 473 (Pa. Super. 2022) (rejecting the appellant’s claim that “Alexander requires the Commonwealth to

2023See Commonwealth v. McMahon, 280 A.3d 1069, 1073 (Pa. Super. 2022) (“[The a]ppellant points to nothing in Alexander which modified the plain view exception, and we decline to apply Alexander.”); Commonwealth v. Lutz, 270 A.3d 571, 576 (Pa. Super. 2022) (“Alexander did not impact its ruling because its decision did not rest upon the analytical underpinnings of the automobile exception to the warrant requirement, but rather upon an application of the plain view and search incident to arrest exceptions to the warrant requirement.”) (internal quotation marks and citation to trial court opinion omi

2026Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U.S. 443 , 481 … (1971).

2018The Steagald Court focused upon the central purpose of the warrant requirement, which serves as a "checkpoint between the Government and the citizen," because a zealous officer investigating a crime "may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home." Id. (citing Coolidge v. New Hampshire , 403 U.S. 443 , 449-51, 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) ; McDonald v. United States , 335 U.S. 451 , 455-56, 69 S.Ct. 191 , 93 L.Ed. 153 (1948) ;

2022Some exceptions to the warrant requirement apply where “the police have probable cause to believe a crime has been or is being committed.” Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999).

2019Some exceptions to the warrant requirement apply where “the police have probable cause to believe a crime has been or is being committed.” Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999); United States v. Rabinowitz, 339 U.S. 56 (1950) (search incident to arrest exception); Commonwealth v. Gibson, 638 A.2d 203, 206-207 (Pa. 1994) (exigent circumstances exception); Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (automobile exception).

2024Simply put, Alexander is not applicable here because the police did not seize the handgun “upon the analytical underpinnings of the automobile exception to the warrant requirement, but rather upon an application of the plain view exception.” McMahon, 280 A.3d at 1073 (quotation and quotation marks omitted).

2024This Court has held that Alexander did not alter the availability of the plain view doctrine as an exception to the warrant requirement or the application of the plain view doctrine. [Commonwealth v. Davis, 287 A.3d 467, 472-473 (Pa. Super. -5- 2022); Commonwealth v. Smith, 285 A.3d 328, 323 (Pa. Super. 2022); Commonwealth v. McMahon, 280 A.3d 1069, 1073-1074 (Pa. Super. 2022)].

2021Thus, we need not address the “hot pursuit” exception to the warrant requirement or the lawfulness of the initial police entry onto Appellant’s property. -4- Commonwealth v. McCree, 592 Pa. 238, 247 , 924 A.2d 621, 627 (2007) (quoting Horton v. California, 496 U.S. 128, 133 , 110 S.Ct. 2301, 2306 , 110 L.Ed.2d 112, 120 (1990)).

2021Thus, we need not address the “hot pursuit” exception to the warrant requirement or the lawfulness of the initial police entry onto Appellant’s property. -4- Commonwealth v. McCree, 592 Pa. 238, 247 , 924 A.2d 621, 627 (2007) (quoting Horton v. California, 496 U.S. 128, 133 , 110 S.Ct. 2301, 2306 , 110 L.Ed.2d 112, 120 (1990)).

2023Commonwealth v. Weimer, 396 A.2d 649 , 651 (Pa. Super. 1978) (en banc) (quoting Katz v. United States, 389 U.S. 347 , 351-52 (1967)). ____________________________________________ 4 In Alexander, the Court rejected the federal automobile exception to the warrant requirement and instead held “that the Pennsylvania Constitution requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile.” Id. -6- “One cannot envelop[] oneself with the cloak of [constitutional] protection while leaving gaping holes in the fabric.” Id.

2023Commonwealth v. Weimer, 396 A.2d 649 , 651 (Pa. Super. 1978) (en banc) (quoting Katz v. United States, 389 U.S. 347 , 351-52 (1967)). ____________________________________________ 4 In Alexander, the Court rejected the federal automobile exception to the warrant requirement and instead held “that the Pennsylvania Constitution requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile.” Id. -6- “One cannot envelop[] oneself with the cloak of [constitutional] protection while leaving gaping holes in the fabric.” Id.

2025With the exigent circumstances doctrine unable to support a per se rule, a categorical exception quickly was sought, and soon granted, under another exception to the warrant requirement—the search-incident-to-arrest doctrine. 88 This rule, however, would come with a caveat: warrants are categorically excused only for breath testing, not for blood draws. 85 McNeely, 569 U.S. at 155 . 86 Id. at 165 . 87 Id. at 156 .

2025XIV, § 1; see Breithaupt v. Abram, 352 U.S. 432, 435-40 (1957) (involuntary blood draw did not offend due process). [J-43-2024] - 22 an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’” 70 Although Schmerber facially stated its holding in case-specific terms, the Court’s decision widely was read as approving a categorical exception to the warrant requirement for blood testing in DUI investigations, premised upon the destruction of evidence arising from the natural dissipation of alcohol from one’s bloodstream. 71 Th

2017Commonwealth v. Gary, 91 A.3d 102, 191 (Pa. 2014) (noting “an exception to the warrant requirement when exigent circumstances exist, such as where there is a need for prompt police action to preserve evidence or to protect an officer from danger to his or her person”) (citing Commonwealth v. Holzer, 389 A.2d 101, 106 (Pa. 1978)). [T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rat

2014See Horton v. California, 496 U.S. 128 , 134 n. 4, 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990) (“[I]t is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”) (citations and quotation marks omitted); United States v. Ross, 456 U.S. 798, 825 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982) (same); Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (“We do not retreat from our holdings that

2025While I admit that the way in which law enforcement and the Commonwealth sought to apply Section 3755 of the Vehicle Code in this case—i.e., as an independent exception to the warrant requirement—is constitutionally problematic, 7 in my view, 6 Commonwealth v. Riedel, 651 A.2d 135, 139 (Pa. 1994).

2017See Brief for Commonwealth at 15 (quoting Riedel, 651 A.2d at 139 (listing exceptions to the warrant requirement, including “actual consent, implied consent, search incident to lawful arrest, and exigent circumstances”) (emphasis added); Kohl, 615 A.2d at 315 (stating that “the implied consent provisions . . . dispense with the need to obtain a warrant” where a police officer has probable cause to suspect DUI)).

2021In Gary, our Supreme 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 - 27 - J-E02001-20 exigency beyond the inherent mobility of a motor vehicle.” Gary, 91 A.3d at 104 .

2018In Gary, supra , the Pennsylvania Supreme Court, in an Opinion Announcing the Judgment of the Court ("OAJC"), 19 "adopt[ed] 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 a motor vehicle." Gary , 91 A.3d at 104 . 20 Further, former Justice Seamus McCaffery opined: 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.

2016Commonweal}h Williams, 547 Pa. 577, 584-85 , 692 A2d 1031, 1034-35 (1997) citing Schneckloth v Bustamonie, 412 U.S. 218, 219 , 93 . .S.Q. ,,,e,,' 2041, 2043 (1973); and Commonwealtlt v. Kohl, 53 Pa. 152 , 171-72, 615 A.2d 308, 318 (1992). · It is a recognized exception to the warrant requirement that state parolees are subje t warrantless arrests stemming from their violating the terms and/or conditions of parole relt Smith v. Commonwealth, 131 Pa.Cmwlth, 360, 367 , 570 A.2d 597, 600 (1990).

2007See Commonwealth v. Reid, 571 Pa. 1 , 811 A.2d 530, 544 (2002) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973)) (“[Pjursuant to the protections of the Fourth Amendment, before a police officer may conduct a search, he must generally obtain a warrant that is supported by probable cause and authorizes the search.”); Commonwealth v. Cockfield, 431 Pa. 639 , 246 A.2d 381, 383 (1968) (quoting Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)) (“Whenever practicable, the police must obtain advance judicial approval of searches and seiz

2025XIV, § 1; see Breithaupt v. Abram, 352 U.S. 432, 435-40 (1957) (involuntary blood draw did not offend due process). [J-43-2024] - 22 an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’” 70 Although Schmerber facially stated its holding in case-specific terms, the Court’s decision widely was read as approving a categorical exception to the warrant requirement for blood testing in DUI investigations, premised upon the destruction of evidence arising from the natural dissipation of alcohol from one’s bloodstream. 71 Th

2020Commonwealth v. Hakim Johnson, 969 A.2d 565, 569 (Pa. Super. 2009) (citation omitted); accord Schmerber v. California, 384 U.S. 757 (1966).

2022“Under the Fourth Amendment, searches and seizures without a warrant are presumptively unreasonable, subject only to specifically established exceptions.” Commonwealth v. Wilmer, 648 Pa. 577 , 194 A.3d 564, 567-568 (2018) (quotation marks and citations omitted). “[A]n exception to the warrant requirement exists when the property seized has been abandoned.” Commonwealth v. Clark, 746 A.2d 1128, 1133 (Pa. Super. 2000).

2021Wilmer, 194 A.3d at 568 n.7; Commonwealth v. Simonson, 148 A.3d 792, 799 (Pa. Super. 2016) (noting that the search incident to arrest exception to the warrant requirement applies categorically and no case-by- -4- case analysis is necessary regarding whether the particular arrestee may be in possession of weapons or evidence).

2017However, one well- recognized exception to the warrant requirement is the presence of exigent circumstances, accompanied by probable cause. “[A]bsent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth -4- J-S20041-17 Amendment.” Commonwealth v. Roland, 535 Pa. 595 , 637 A.2d 269, 270 (1994).

2017However, one well- recognized exception to the warrant requirement is the presence of exigent circumstances, accompanied by probable cause. “[A]bsent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth -4- J-S20041-17 Amendment.” Commonwealth v. Roland, 535 Pa. 595 , 637 A.2d 269, 270 (1994).

2024See Minnesota v. Dickerson, 508 U.S. 366, 379 (1993) (recognizing that in the absence of reasonable suspicion developed during a proper Terry frisk that the suspect is in possession of a weapon, manipulation of a suspect’s outer clothing is a search “not authorized by Terry or by any other exception to the warrant requirement”); see also T.W., 261 A.3d at 420.

1994An additional exception to the warrant requirement was recently carved out by the United States Supreme Court in Minnesota v. Dickerson, — U.S.-, 113 *95 S.Ct. 2130, 124 L.Ed.2d 334 (1993), in which the Court determined that police may seize non-threatening contraband detected, by touch, during a protective pat-down search, so long as the official search stays within the bounds permitted by Terry.