526 Pa. 374 (1991) 586 A.2d 887

COMMONWEALTH of Pennsylvania, Appellee,
v.
Louis R. EDMUNDS, Appellant.

Supreme Court of Pennsylvania.

Submitted March 6, 1990. Decided February 4, 1991.

*375 Kenneth B. Burkley, Greensburg, for appellant.

Jeffrey P. Shender, Defender Ass'n of Philadelphia, Theodore Simon, American Civil Liberties Union, Philadelphia, for amici curiae.

John J. Driscoll, Dist. Atty., William C. Gallishen, Asst. Dist. Atty., Greensburg, for appellee.

*376 Catherine Marshall, Ronald Eisenberg, Office of the District Attorney of Philadelphia County, Philadelphia, for amicus curiae.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

I. HISTORY OF THE CASE

The issue presented to this court is whether Pennsylvania should adopt the "good faith" exception to the exclusionary rule as articulated by the United States Supreme Court in the case of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We conclude that a "good faith" exception to the exclusionary rule would frustrate the guarantees embodied in Article I, Section 8, of the Pennsylvania Constitution. Accordingly, the decision of the Superior Court is reversed.

The defendant in the instant case was found guilty after a non-jury trial on August 18, 1987 of criminal conspiracy, 18 Pa.C.S. Section 903(a)(1), simple possession, possession with intent to deliver, possession with intent to manufacture and manufacture of a controlled substance, in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. The conviction was premised upon the admission into evidence of marijuana seized at the defendant's property pursuant to a search warrant, after information was received from two anonymous informants.

The trial court held that the search warrant failed to establish probable cause that the marijuana would be at the location to be searched on the date it was issued. The trial court found that the warrant failed to set forth with specificity the date upon which the anonymous informants observed the marijuana. See, Commonwealth v. Conner, 452 *377 Pa. 333, 305 A.2d 341 (1973). However, the trial court went on to deny the defendant's motion to suppress the marijuana. Applying the rationale of Leon, the trial court looked beyond the four corners of the affidavit, in order to establish that the officers executing the warrant acted in "good faith" in relying upon the warrant to conduct the search. In reaching this conclusion the trial court also decided that Leon permitted the court to undercut the language of Pa.R.Crim.P. 2003,^[1] which prohibits oral testimony outside the four corners of the written affidavit to supplement the finding of probable cause.

The Superior Court in a divided panel decision, opinion by Wieand J., dissent by Popovich J., affirmed the judgment of the trial court, specifically relying upon the decision of the United States Supreme Court in Leon. Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988). Allocatur was granted by this Court.

The pertinent facts can be briefly summarized as follows. On August 5, 1985 State Police Trooper Michael Deise obtained a warrant from a district magistrate to search a white corrugated building and curtilage on the property of the defendant. The warrant on its face also included the defendant's residence as part of the property to be searched; however, the Commonwealth now concedes that probable cause did not properly exist for the search of the residence. As the affidavit of probable cause is central to our decision, we will set it forth in full:

*378 On the date of August 4, 1985, this affiant Michael D. Deise, Penna. State Police, was in contact by telephone with two anonymous Males who were and are members of the community where Louis R. Edmunds resides. Both anonymous males advised the affiant that while checking out familiar hunting areas off Rte. 31, east of Jones Mills and along the south side of Rte. 31. (sic) These men observed growing marijuana near a white corrugated building approximately 20 X 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that Louis R. Edmunds lived there. Edmund's description being that of a white male in his middle thirties and he lived at the aforementioned location.

On the 5th of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Rte. 31 entrance and observed a mail box with "Edmunds 228" printed on it.

After obtaining the warrant from the local magistrate, Trooper Deise, accompanied by three other troopers, served the warrant upon the defendant at his residence. Though he did not place the defendant under arrest at this time, the trooper did advise him of his Miranda rights, and had him read the warrant. The trooper also explained to the defendant *379 that the warrant was not for his residence, although the warrant itself included the residence. Rather, the trooper stated that the warrant was meant to relate to the white corrugated building, and that they were searching for marijuana in that building.

The defendant acknowledged that he owned the land in question, but stated that he leased the white corrugated building to a Thomas Beacon. The defendant, followed by the trooper, went to the second floor of his residence to obtain a copy of the lease to demonstrate that the building was in fact leased to Mr. Beacon. Trooper Deise followed the defendant to ensure that he did not obtain a weapon or otherwise endanger the officers. While accompanying the defendant to the second floor, the trooper noticed near the top of the stairs four (4) large transparent plastic bags containing what appeared to be marijuana. Based upon this discovery the trooper placed the defendant under arrest.

After producing the lease which indicated that the white corrugated building was in fact leased to Thomas Beacon, the defendant accompanied the troopers to the building, which was approximately one-quarter of a mile away, up a steep mountainous terrain, on a separate parcel of property owned by Edmunds. The record is devoid of evidence that there was marijuana growing outside the corrugated building.^[2] The defendant unlocked the door of the white building and entered with the troopers. Inside the building the troopers discovered seventeen (17) growing marijuana plants, along with gardening implements, high-wattage lights, and a watering system. The marijuana was seized and the charges as recited above were brought against the defendant.

Prior to trial the defendant moved to suppress the marijuana seized in his residence, the marijuana found growing in the white corrugated building, as well as statements made by defendant Edmunds. A suppression hearing was *380 held by the trial court on January 27, 1986, at which time Trooper Deise testified concerning the information set forth in the affidavit of probable cause. Counsel for defendant moved to suppress all of the above evidence, on the ground that the warrant was constitutionally defective, and probable cause was lacking, because the warrant failed to set forth a time frame in which the informants had observed the marijuana.

Recognizing that the affidavit of probable cause was deficient on its face, the trial court granted the request of the district attorney to convene a supplemental suppression hearing, which occurred on April 21, 1986. The express purpose of this hearing was to allow the district attorney to provide oral supplementation of the facts set forth in the written affidavit and warrant, in order to establish a "good faith" exception to the exclusionary rule under the auspices of Leon. The Commonwealth thus introduced evidence that the two informants had observed the marijuana on August 4, 1986, and that such date had been related to District Justice Tlumac prior to the issuance of the warrant, although it was not contained in the affidavit of probable cause or the warrant itself.

Trooper Deise and District Justice Tlumac each offered testimony consistent with that position. However, the testimony of District Justice Tlumac was somewhat ambivalent. She testified that Trooper Deise appeared in her office on August 5, 1986, and related his conversation with the two anonymous informants. She stated that Trooper Deise thereafter dictated the affidavit, which she typed verbatim. She then prepared and issued the search warrant. When asked whether Trooper Deise had indicated that the events in question had occurred the preceding day, District Justice Tlumac testified as follows: "And I felt with knowing Officer Deise over a period of fifteen, twenty years and had countless search warrants, and they were always fresh, that apparently he wouldn't (sic) bring information that just occurred, that was so fresh. The question wouldn't have *381 even arose (sic) in my mind. And at that time I was under the impression this all occurred the day before."

Upon the close of the supplemental suppression hearing, the trial court found that, strictly adhering to Rule 2003 of the Pennsylvania Rules of Criminal Procedure, this warrant would be incapable of establishing probable cause to justify the search of defendant's property. The warrant failed to set forth a time frame from which a neutral and detached magistrate could reasonably infer that the criminal conduct observed was recent and would most likely still be in progress at the time the warrant was requested. Conner, supra.

The trial court went on to reason, however, that the facial invalidity of the warrant did not necessitate the exclusion of the evidence. On the basis of testimony offered by the district attorney at the supplemental suppression hearing, the trial court applied the federal test of Leon, and held that where the officer acts in "good faith" reliance upon the District Justice's determination of probable cause, the evidence seized will not be excluded at trial, regardless of the warrant's defects.

The trial court further concluded that the trooper, being reasonably well trained, believed the warrant to be valid because it had been issued by a neutral magistrate. Therefore, the trial court concluded that the trooper acted in "good faith" in executing the warrant, and determined that the federal Leon rule permitted the evidence to be introduced, despite the fact that the affidavit was defective and failed to establish probable cause under Pennsylvania law.

The Superior Court adopted the reasoning of the trial court, and went on to hold that Article I Section 8 of the Pennsylvania Constitution afforded no greater protection to its citizens than that provided under the 4th Amendment to the United States Constitution. The Superior Court panel found no compelling reason to deviate from the decision of the United States Supreme Court in Leon, and likewise endorsed the federal "good faith" exception to the exclusionary rule as a matter of Pennsylvania jurisprudence.

*382 As a preliminary matter, we concur with the inevitable conclusion of the trial court and the Superior Court, that probable cause did not exist on the face of the warrant. In Conner, this Court made clear that a search warrant is defective if it is issued without reference to the time when the informant obtained his or her information. Id. 452 Pa. at 339, 305 A.2d at 345. Coupled with Pa.R.Crim.P. 2003, which mandates that courts in Pennsylvania shall not consider oral testimony outside the four corners of the written affidavit to supplement the finding of probable cause for a search warrant, we are compelled to conclude that the affidavit of probable cause and warrant were facially invalid. Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973). As the Superior Court candidly stated, the affidavit in question "did not contain facts from which the date of the hunters' observations could be determined." 373 Pa.Super. at 390, 541 A.2d at 371.^[3] Indeed, *383 the dissenting opinion of Mr. Justice McDermott concedes that probable cause was lacking.

We are not at liberty to ignore the Leon issue as it has been injected into the case by the trial court, and expressly affirmed by the Superior Court. Both lower courts have acknowledged, correctly, that Rule 2003 and our decision in Conner render the warrant invalid on its face under Pennsylvania law. The only way to salvage the warrant from facial invalidity is to disregard Rule 2003 and consider oral testimony outside the four corners of the affidavit to establish probable cause, which we are not free to do; or to consider the same oral testimony to establish a "good faith" exception under the federal Leon test, which is precisely what the trial court sought to accomplish. The trial judge conducted a supplemental suppression hearing for the express purpose of bringing the Leon issue four-square into this case, and the Superior Court affirmed explicitly on that basis. The "good faith" exception issue having thus been joined by both courts below, we are now constrained to address it.

The sole question in this case, therefore, is whether the Constitution of Pennsylvania incorporates a "good faith" exception to the exclusionary rule, which permits the introduction of evidence seized where probable cause is lacking on the face of the warrant.

Put in other terms, the question is whether the federal Leon test circumvents the acknowledged deficiencies under Pennsylvania law, and prevents the suppression of evidence seized pursuant to an invalid search warrant. For the reasons that follow, we conclude that it does not.

*384 II. UNITED STATES v. LEON

Our starting point must be the decision of the United States Supreme Court in Leon. In Leon, the Supreme Court in 1984 departed from a long history of exclusionary rule jurisprudence dating back to Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court in Leon concluded that the 4th Amendment does not mandate suppression of illegally seized evidence obtained pursuant to a constitutionally defective warrant, so long as the police officer acted in good faith reliance upon the warrant issued by a neutral and detached magistrate.

In Leon, police officers in Burbank, California, had initiated a drug investigation after receiving a tip from a confidential informant that large quantities of cocaine and methaqualone were being sold from a residence. The informant had indicated that he witnessed a sale of methaqualone approximately five months earlier. The Burbank police set up a surveillance of three residences, and observed known drug offenders, including Leon, arriving in automobiles and leaving with small packages. Leon 468 U.S. at 901-902, 104 S.Ct. at 3409-3410. The officers also observed certain of the suspects boarding separate flights for Miami. Id. at 902, 104 S.Ct. at 3409.

Based upon these and other observations, the Burbank police prepared an affidavit and obtained a search warrant from a Superior Court judge. A search of the suspects' residences and automobiles uncovered large quantities of cocaine and methaqualone. Id. at 902, 104 S.Ct. at 3409.

After being indicted in federal court, the respondents moved to suppress the evidence. The district court agreed that the affidavit was insufficient to establish probable cause. First, the observations of the informant had been made six months earlier, creating a staleness problem. Second, there was no basis for establishing the reliability or credibility of the informant, who had no track-record with respect to providing reliable information. Moreover, the police investigation "neither cured the staleness nor corroborated *385 the details of the informant's declarations," Id. at 904, 104 S.Ct. at 3411. The information gathered by the police officers was "as consistent with innocence as it is with guilt." Id. at 903 n. 2, 104 S.Ct. at 3410 n. 2. Thus, the then-existing test for probable cause under Aguilar-Spinelli had not been met. Id. at 902, n. 2, 104 S.Ct. at 3410, n. 2.

The Court of Appeals in Leon affirmed, rejecting the government's invitation to recognize a good faith exception to the exclusionary rule. The United States Supreme Court reversed, in a 6-3 decision.

Justice White, writing for the majority in Leon, first indicated that the exclusionary rule was not a "necessary corollary of the Fourth Amendment." 468 U.S. at 905, 104 S.Ct. at 3411. Although Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) and Mapp v. Ohio, supra, had suggested that the exclusion of illegally seized evidence was part-and-parcel of the 4th Amendment's guaranty, the Leon Court took the position that the exclusionary rule operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." Id., quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).

Justice White went on to conclude that the issue of whether the exclusionary rule should be imposed in a particular case "must be resolved by weighing the costs and benefits" of precluding such evidence from the prosecution's case. Leon, 468 U.S. at 906-907, 104 S.Ct. at 3411-3412. On the costs side of the analysis, Justice White declared that the exclusionary rule incurs "substantial social costs" in terms of "imped(ing) unacceptably the truth-finding functions of judge and jury." Id. at 907, 104 S.Ct. at 3412 quoting United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980). As a result, Justice White noted that "some guilty defendants may go *386 free or receive reduced sentences as a result of favorable plea bargains." Leon, 468 U.S. at 907, 104 S.Ct. at 3412.

On the benefits side of the analysis, Justice White indicated that the sole purpose of the exclusionary rule under the 4th Amendment was to "deter police misconduct rather than to punish the errors of judges and magistrates." Id. at 916, 104 S.Ct. at 3417. Given this goal, Justice White concluded that there was no reason to presume that judges or magistrates would be more inclined to "ignore or subvert" the 4th Amendment if evidence seized pursuant to a defective warrant were admissible. The majority wrote: "Although there are assertions that some magistrates become rubber stamps for the police and others may be unable effectively to screen police conduct . . . we are not convinced that this is a problem of major proportions." 468 U.S. at 916 n. 14, 104 S.Ct. at 3417 n. 14 (citations omitted).

The Court in Leon found that the argument that the exclusionary rule "deters future inadequate presentations" by police officers or prevents "magistrate shopping" was "speculative". Id. at 918, 104 S.Ct. at 3418. Consequently, the Fourth Amendment was not served by excluding improperly seized evidence, except on rare occasions. Wrote the Court:

In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable cause determination or his judgment that the form of the warrant is technically sufficient. . . . Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. 468 U.S. at 920-921, 104 S.Ct. at 3419.

The Leon majority therefore concluded that, where a police officer is acting in objective good faith, based upon a search warrant duly issued by a neutral magistrate or *387 judge, the 4th Amendment does not require exclusion of such evidence, even where it is later determined that probable cause was lacking for the warrant. Unless the police officer acted "knowingly" or "recklessly" in providing false information to the magistrate, or the affidavit of probable cause is "so lacking in indicia of probable cause as to render official belief in its existence unreasonable," the evidence is admissible. Leon, at 923, 104 S.Ct. at 3421, quoting, Brown v. Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975).

Thus, the Leon Court concluded that the drugs obtained through a defective search warrant, unsupported by probable cause, were nonetheless admissible as evidence without controverting the 4th Amendment. Leon, 468 U.S. at 925-926, 104 S.Ct. at 3421-3422.^[4]

The U.S. Supreme Court subsequently broadened the good-faith exception to the exclusionary rule, in the recent case of Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). In Krull, the Court held that a good-faith exception to the exclusionary rule permits the introduction of evidence obtained by an officer in reliance upon a statute, even where that statute is thereafter determined to be unconstitutional. Cf. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (previously indicating that the use of such evidence violated the 4th Amendment).

We must now determine whether the good-faith exception to the exclusionary rule is properly part of the jurisprudence of this Commonwealth, by virtue of Article 1, Section 8 of the Pennsylvania Constitution. In concluding that it is not, we set forth a methodology to be followed in analyzing *388 future state constitutional issues which arise under our own Constitution.

III. FACTORS TO CONSIDER IN UNDERTAKING PENNSYLVANIA CONSTITUTIONAL ANALYSIS

This Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

As Mr. Chief Justice Nix aptly stated in Sell, the federal constitution establishes certain minimum levels which are "equally applicable to the [analogous] state constitutional provision." Id. 504 Pa. at 63, 470 A.2d at 466, quoting, Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973). However, each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution. Sell, 504 Pa. at 63, 470 A.2d at 467.^[5]

The United States Supreme Court has repeatedly affirmed that the states are not only free to, but also encouraged *389 to engage in independent analysis in drawing meaning from their own state constitutions. See Prune Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980) (Rehnquist, J.). Indeed, this is a positive expression of the jurisprudence which has existed in the United States since the founding of the nation. Alexander Hamilton, lobbying for the ratification of the U.S. Constitution in the Federalist Papers over two hundred years ago, made clear that the Supremacy Clause of the Federal Constitution was never designed to overshadow the states, or prevent them from maintaining their own pockets of autonomy. See, The Federalist No. 33 (A. Hamilton), in The Federalist Papers (The New American Library ed.) 204.

The past two decades have witnessed a strong resurgence of independent state constitutional analysis, in Pennsylvania and elsewhere. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982); Linde, E Pluribus-Constitutional Theory and State Courts, 18 Ga.L.Rev. 165 (1984); Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex.L.Rev. 1141 (1985); Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex.L. Rev. 1081 (1985); Brennan, Symposium on the Revolution in State Constitutional Law, 13 Vt.L.Rev. 11 (1988).

Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they "are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees," Commonwealth v. Tarbert 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L. *390 Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

The recent focus on the "New Federalism"^[6] has emphasized the importance of state constitutions with respect to individual rights and criminal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution.^[7] The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032,