Consent searches at Pennsylvania traffic stops and the log police now keep

Section 6329(a) applies to any self-initiated traffic stop made under Title 75 as authorized by § 6308, and § 6329(h) defines a self-initiated traffic stop as one, regardless of outcome, that was initiated as a result of reasonable suspicion or probable cause of a violation of traffic or criminal law. Seven data points must be captured in a form and manner set by the Pennsylvania State Police: the reason for the stop, the perceived race and ethnicity of the driver, the driver’s gender and age, whether a search was initiated of the vehicle or the operator or the passengers and whether that search was consented to, the results of the search, whether the encounter ended in a warning, citation, arrest or other action, and anything else the State Police deem necessary.

The reach of the section is capped by population, which is the detail most summaries omit. Section 6329(h) defines a local police department as either a regional police department serving more than one municipality under an agreement or contract with a combined population above 5,000 according to the 2020 Federal decennial census, or a municipal police department for a municipality of more than 5,000 on that same census. A borough force covering 3,000 residents in Elk or Forest County is therefore outside the statute entirely, while the State Police are covered everywhere they patrol, which in much of rural Pennsylvania is the only coverage there is.

The statute also tells you what the record is not. Section 6329(b) states plainly that a failure by a State Police member or a local officer to collect the data does not affect the validity of the underlying traffic stop, so a missing entry is not a suppression argument. Section 6329(g) removes the collected data from the reach of the Right-to-Know Law of February 14, 2008, No. 3, so an individual cannot file a right-to-know request for the raw stop records. What does become public is the analysis: § 6329(c) requires each local department to send its data annually to the State Police or to a designated third party experienced in analyzing such data, and requires the resulting annual analysis and report to be posted on a publicly accessible website and sent to the chair and minority chair of the Senate Transportation Committee, the chair and minority chair of the House Transportation Committee, the Pennsylvania Commission on Crime and Delinquency and the Pennsylvania Human Relations Commission. Departments that were already collecting, analyzing through a third party and publishing on the effective date are exempt under § 6329(f)(1), and lose that exemption the moment they stop.

On the search itself, Pennsylvania departs from federal law in a way that matters at the roadside. Article I, Section 8 of the Pennsylvania Constitution provides that the people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures. In Commonwealth v. Alexander, No. 30 EAP 2019, decided 22 December 2020, the Supreme Court of Pennsylvania overruled Commonwealth v. Gary and returned the Commonwealth to a limited automobile exception under which warrantless vehicle searches require both probable cause and exigent circumstances, adding that one without the other is insufficient. The federal automobile exception, which allows a warrantless search on probable cause alone, does not state Pennsylvania law.

Consent is the exception that removes the warrant question altogether, which is exactly why officers ask. Nothing in Title 75 obliges a driver or passenger to agree, and § 6329(a)(4) is drafted on the assumption that consent is a variable rather than a given: the officer must record whether the search happened with consent, which only makes sense if refusal is a real option. There is also no Pennsylvania statute requiring the officer to advise you that you may refuse, and no statute requiring the consent to be in writing or recorded.

The scope of the stop itself is statutory. Under 75 Pa.C.S. § 6308(b), an officer may stop a vehicle when engaged in a systematic program of checking vehicles or drivers, or on reasonable suspicion that a Title 75 violation is occurring or has occurred, and the stated purposes are checking the registration, proof of financial responsibility, the vehicle identification or engine number or the driver’s license, or securing such other information as the officer may reasonably believe necessary to enforce Title 75. That is a document check, not a search authorization.

Marijuana odor no longer carries a vehicle search on its own in Pennsylvania. The Medical Marijuana Act, Act 16 of 2016, provides at section 303(a) that use or possession of medical marijuana as set forth in that act is lawful within this Commonwealth, and at section 2103(a) that patients, caregivers and practitioners are not subject to arrest, prosecution or penalty in any manner solely for lawful use. In Commonwealth v. Barr, No. 28 MAP 2021, decided 29 December 2021, the Supreme Court of Pennsylvania held that the odor of marijuana alone does not amount to probable cause to conduct a warrantless vehicle search, though it may be considered as one factor in the totality of the circumstances. That is narrower than it sounds: smell plus other observations can still get an officer there, and Pennsylvania has not legalized adult recreational use, so the Controlled Substance, Drug, Device and Cosmetic Act still applies to anyone outside the medical program.

§ 6329 penalizes a driver, and nothing in it penalizes an officer either. Section 6329(b) expressly provides that a failure to collect the data does not affect the validity of the underlying traffic stop, so the consequence of non-collection is institutional rather than case-specific: the department’s annual figures are incomplete when the State Police or its designated third party publishes the analysis under § 6329(c) and transmits it to the Senate and House Transportation Committee chairs, the Pennsylvania Commission on Crime and Delinquency and the Pennsylvania Human Relations Commission.

Where a search itself was unlawful, the remedy is a pre-trial motion to suppress in the court of common pleas for the county where the charges were filed, argued under Article I, Section 8 of the Pennsylvania Constitution as construed in Commonwealth v. Alexander, which requires both probable cause and exigent circumstances for a warrantless vehicle search, and under Commonwealth v. Barr where the asserted basis was the odor of marijuana. § 5101 requires force, violence, physical interference or an obstacle and excludes avoiding compliance without affirmative interference. § 6502(a).