Commonwealth v. Johnson

dissenting.

The question before the Court is whether evidence found during a search incident to arrest is admissible at trial under Article I, Section 8 of the Pennsylvania Constitution even though the warrant for the arrest was subsequently found to have already been served and thus was no longer valid. In Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), the United States Supreme Court held that when police mistakes in the execution of an expired arrest warrant are the result of negligence, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule should not apply. I would hold that Article I, Section 8 does not require greater privacy protection than the high Court afforded in Herring. Accordingly, I dissent.

Fourth Amendment Jurisprudence

One hundred years ago, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the United States Supreme Court held for the first time that, in a federal prosecution, the Fourth Amendment barred the use of evidence that had been obtained via a warrantless search. Several decades later, in Wolf v. Colorado, 338 U.S. 25, 33, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the high Court expressly limited Weeks’s holding to federal prosecutions, stating that “in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.” However, only twelve years after Wolf was decided, it was overruled in Mapp v. Ohio, 367 U.S. 643, 644-45, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”). Twenty-three years after Mapp was decided, the United States Supreme Court limited the scope of the exclusionary rule, holding that evidence obtained by police officers acting in reasonable reliance on a search warrant subsequently found to be unsupported by probable cause was not barred from use at trial. U.S. v. Leon, 468 U.S. 897, 900, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In promulgating this “good faith exception” to the exclusionary rule, the high Court held as follows:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

Id. at 926,104 S.Ct. 3405.

The Leon Court explained that it had reexamined the purposes of the exclusionary rule and concluded that its primary purpose is to deter police misconduct, i.e., “willful, or at the very least negligent, [police] conduct which has deprived the defendant of some right.” Id. at 916, 919, 926, 104 S.Ct. 3405 (citations omitted). When the police have not engaged in any misconduct, but rather have acted with objectively reasonable reliance on a search warrant that is subsequently determined to be invalid, then the benefits of applying the exclusionary rule are “marginal or nonexistent.” Id. at 922, 104 S.Ct. 3405. Under such circumstances, the Leon Court held, the costs of applying the exclusionary rule outweigh the benefits, and, pursuant to the good faith exception, determined that the rule is inapplicable. Id. at 926, 104 S.Ct. 3405.

The U.S. Supreme Court employed a similar balancing approach to decide a recent case with facts and circumstances closely resembling the case currently before us. See Herring, supra. The defendant-petitioner was arrested on a warrant, *193and a search incident to arrest revealed drugs on his person and an illegally possessed firearm in his motor vehicle. Very shortly after the arrest, the warrant was found to have been recalled months earlier, and thus it was invalid. Id. at 137-38, 129 S.Ct. 695. After the defendant-petitioner was indicted for illegal possession of the drugs and the firearm, he moved to suppress the evidence, contending that his arrest was illegal under the Fourth Amendment because the warrant had been rescinded. The district court, adopting the magistrate judge’s recommendation, denied the suppression motion, concluding that the arresting officers had acted in a good faith belief that the warrant was still outstanding. The Court of Appeals for the Eleventh Circuit affirmed, holding that the evidence was admissible under the good faith rule of Leon, supra. The Eleventh Circuit concluded that the arresting officers had not engaged in any wrongdoing or carelessness, and that the sheriffs office had acted only negligently, not deliberately or tactically, in failing to update the records regarding the warrant’s rescission. Herring, supra at 138-39, 129 S.Ct. 695.

The high Court affirmed, reiterating that the exclusionary rule is a judicially created rule, not an individual right; is not a necessary consequence of a Fourth Amendment violation; and applies only where it has the potential to result in the deterrence of future Fourth Amendment violations. Id. at 141, 129 S.Ct. 695. The high Court retained its focus on the deterrence of police misconduct: “evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 143, 129 S.Ct. 695 (citations and internal quotation marks omitted). Recognizing that the cases that had given rise to the exclusionary rule involved intentional, flagrant, patently unconstitutional conduct, the high Court made clear that the “exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Id. at 144, 129 S.Ct. 695.

In applying these principles to the facts and circumstances of Herring, the high Court determined that the conduct of the law enforcement officers “was not so objectively culpable as to require exclusion [of the evidence].” Id. at 146, 129 S.Ct. 695. There was no evidence that record-keeping errors in the sheriffs office were routine or widespread; rather, the testimony suggested that such errors were rare. Id. at 147, 129 S.Ct. 695. Accordingly, the high Court held as follows: “[W]hen police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way’,” and thus the exclusionary rule should not apply. Id. at 147-48, 129 S.Ct. 695 (citation omitted).

Pennsylvania Jurisprudence

Pr e-Mapp

Pennsylvania was not quick to conclude that the exclusionary rule constituted an available remedy under — much less an integral part of — Article I, Section 8 of the Pennsylvania Constitution. Although the U.S. Supreme Court adopted the Fourth Amendment exclusionary rule in 1914, for more than four decades, we declined to adopt the exclusionary rule as a matter of state law.1 For example, in Commonwealth v. Dabbierio, 290 Pa. 174, 138 A. *194679, 681 (1927), we recognized but explicitly rejected Weeks in upholding, under state constitutional law, the admission of evidence that had been obtained pursuant to a defective search warrant.2 Rather than follow Weeks, the Dabbierio Court “[found itself] in more complete accord with ... McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260 [71 L.Ed. 556 (1927) ].” Dabbierio, supra at 681. In McGuire, supra at 260, six federal revenue agents, acting pursuant to a search warrant, seized several gallons of liquor from the defendant-appellant’s premises, destroyed most of the liquor without legal authority, but retained two quarts as evidence. The defendant-appellant challenged the admissibility of that evidence, contending that, by destroying the seized liquor, the agents “lost the protection and authority conferred upon them by the search warrant,” and thus rendered the seizure illegal under the Fourth Amendment. In denying this challenge, the high Court conceded that the destruction of the liquor was an illegal act, but declined to conclude that the seizure of the liquor or its use as evidence violated any constitutional immunities of the defendant. Id. at 260-61. The high Court reasoned as follows, reasoning with which our Dabbierio Court explicitly agreed:

Even if the officers were liable as trespassers ab initio, which we do not decide, we are concerned here not with their liability but with the interest of the government in securing the benefit of the evidence seized, so far as may be possible without sacrifice of the immunities guaranteed by the Fourth and Fifth Amendments. A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule. The use by prosecuting officers of evidence illegally acquired by others does not necessarily violate the Constitution nor affect its admissibility.

McGuire, 47 S.Ct. at 260 (quoted in Dabbierio, 138 A. at 681).

Thus, even though the facts of Dabbierio much more closely resembled those of Weeks than those of McGuire, the Dabbi-erio Court found more persuasive the high Court’s ruling in McGuire, which emphasized the interest of the government in securing evidence for and using evidence in criminal prosecutions. Privacy interests protected by the Pennsylvania Constitution did not prevail even though Dabbierio was decided under state constitutional law.

The Dabbierio decision was consistent with the common law rule, i.e., “the admissibility of evidence is not affected by the illegality of the means by which it was obtained.” Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379, 381 (1955); see also Commonwealth v. Connolly, 290 Pa. 181, 138 A. 682 (1927) (in dicta, applying Dabbierio’s holding); Commonwealth v. Hunsinger, 290 Pa. 185, 138 A. 683 (1927) (applying Dabbierio’s holding in a case with similar facts); Commonwealth v. Agosten, 364 Pa. 464, 72 A.2d 575, 585 (1950) (in upholding the admissibility of evidence obtained without a search warrant, applying the common law rule that “the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evi*195dence”). This common law rule remained “firmly entrenched in the decisions of the appellate courts of our [ ] Commonwealth,” Chaitt, supra, until the U.S. Supreme Court in Mapp imposed the exclusionary rule on the states for Fourth Amendment purposes. See Russo, 934 A.2d at 1199; Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, 306-09 (1963) (in the first case challenging the admissibility of evidence obtained through an allegedly illegal search and seizure to reach this Court after Mapp, recognizing that Mapp prohibited the use in state courts of evidence that had been obtained by unreasonable search and seizure).

Post -Mapp, Pre-Edmunds

In the three decades immediately following Mapp and Bosurgi, this Court decided numerous search and seizure cases. In many, this Court’s rulings were aligned with federal jurisprudence. See, e.g., Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29, 31 n. 2, 34 (1973) (holding, under the Fourth Amendment and Article I, Section 8, that a warrant to search an apartment does not extend to a visitor’s suitcase found in that apartment), overruled, Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909, 910-12 (1988) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), in overruling Pla-tou, and holding that the search of a visitor’s jacket was within the scope of a warrant to search an apartment for drugs); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101, 105-07 (1978) (following a coterminous approach with respect to the Fourth Amendment and Article I, Section 8, and holding that it was reasonable for constitutional purposes for the police to seize and hold a vehicle until a search warrant could be obtained, where the seizure occurred after the owner had been placed into custody); Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378, 385 (1979) (accepting “the wisdom of [the federal] approach” in holding that a violation of a procedural rule for the execution and return of warrants should not render an otherwise valid search illegal unless the defendant can show prejudice); In Re Search Warrant B-21778, 513 Pa. 429, 521 A.2d 422, 426-27 (1987) (citing federal Fourth Amendment law in rejecting the appellant’s claim that he could assert vicariously the privacy rights of another individual under the Fourth Amendment and Article I, Section 8); Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 86-88 (1988) (in holding that Section 5704(2) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-82, did not violate Article I, Section 8, finding persuasive the U.S. Supreme Court’s rationale in several electronic surveillance cases).

It is therefore apparent that this Court, from its earliest days up through most of the 20th century, discerned no additional or strengthened protections in the Pennsylvania Constitution as compared to the Fourth Amendment with regard to search and seizure cases. See also Kerr v. Pennsylvania State Board of Dentistry, 599 Pa. 107, 960 A.2d 427, 438-39 (2008) (Castille, C.J., concurring) (briefly discussing the history of the exclusionary rule in Pennsylvania).

In the late 1970’s, however, a line of cases began to emerge from this Court that departed from federal search and seizure jurisprudence, based on our discernment of greater protection for individual privacy rights in Article I, Section 8 of the Pennsylvania Constitution than in the Fourth Amendment to the U.S. Constitution. In Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), this Court declined to follow the U.S. Supreme Court’s decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 *196(1976), in which the high Court held that a depositor had no reasonable expectation of privacy in his or her bank records. This Court found the analysis of the California Supreme Court in Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1974), “in recognizing modern electronic realities, [to be] more persuasive than the simplistic propriety analysis I used by the [U.S. Supreme Court] in Miller.” DeJohn, supra at 1290. Relying on implicit privacy protections discerned under Article I, Section 8 of the Pennsylvania Constitution, this Court held that “bank customers have a legitimate expectation of privacy in records pertaining to their affairs kept at the bank,” and, therefore, a warrant supported by probable cause was required to access them. DeJohn, supra at 1291.3

In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 459 (1983), the issue was the doctrine of automatic standing to contest a search and seizure when a defendant has been charged with a possessory offense. Three years before Sell, the U.S. Supreme Court had abandoned the doctrine of automatic standing, see United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), requiring instead that a defendant seeking to challenge the admissibility of evidence under the Fourth Amendment show a legitimate expectation of privacy in the searched area as a predicate to establishing standing. Relying on Article I, Section 8 of the Pennsylvania Constitution, this Court in Sell retained the doctrine of automatic standing, thus declining to follow the Salvucci holding. Sell, supra at 465-66. The Sell Court concluded that “Article I, Section 8 of the Pennsylvania Constitution, as consistently interpreted by this Court, mandates greater recognition of the need for protection from illegal governmental conduct offensive to the right of privacy.” Sell, supra at 468-69.

In Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), this Court again relied on Article I, Section 8 in declining to follow a U.S. Supreme Court ruling — this time concerning whether a pen register constituted a search and therefore must be supported by probable cause. The U.S. Supreme Court in Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), had held that the use of a pen register was not a search under the Fourth and Fourteenth Amendments, and, therefore, no warrant supported by probable cause was required for its installation. However, this Court expressly rejected Smith, and relied instead on the privacy interests protected under Article I, Section 8 of the Pennsylvania Constitution to hold that police must obtain a court order based on probable cause before utilizing a pen register. Melilli, supra at 1257-59.

Commonwealth v. Edmunds

Citing DeJohn, Sell, and Melilli, this Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888, 894, 895 n. 7 (1991), again departed from U.S. Supreme Court precedent, and declined to adopt the “good faith” exception to the exclusionary rule as inconsistent with the guarantees embodied in Article I, Section 8 of the Pennsylvania Constitution. In Ed-munds, a state trooper served a search warrant on the defendant-appellant at his residence, found marijuana, and arrested him for drug-related offenses. The defendant-appellant moved to suppress the evidence, asserting that probable cause for *197the search was lacking and thus the warrant was constitutionally defective. Id. at 889-90. Following a hearing, the trial court found that the warrant did indeed lack probable cause under Pennsylvania law; however, the trial court further found that, in executing the warrant, the trooper had acted in good faith reliance thereon, reasonably believing that the warrant was valid because it had been issued by a neutral magistrate. Id. at 890. Accordingly, the trial court applied the good faith exception to the exclusionary rule, as had been set forth several years earlier by the U.S. Supreme Court in Leon, see discussion in text, supra, and denied the defendant-appellant’s suppression motion. Edmunds, supra. The Superior Court affirmed the order of the trial court.

This Court reversed, holding that “the good faith exception to the exclusionary rule is [not] properly part of the jurisprudence of this Commonwealth, by virtue of Article I, Section 8 of the Pennsylvania Constitution” because it would “frustrate the guarantees embodied” therein, particularly with regard to personal privacy interests. Id. at 894, 895. In reaching this holding, Edmunds set forth a methodology to be used in analyzing issues that arise under the Pennsylvania Constitution. Id. at 894. Specifically, the Court determined that it was “important” for the litigants in any future case implicating a provision of the Pennsylvania Constitution, to brief and analyze at least the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision including Pennsylvania case-law;

3) related case-law from other states;

4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Id. at 895.

This Court in Edmunds then proceeded to consider each of these factors in light of the circumstances of that case. With regard to the constitutional text, Edmunds acknowledged that the Fourth Amendment and Article I, Section 8 were “similar in language.” Id. at 895. As this Court has expressly acknowledged, “it is not the text itself [of Article I, Section 8] which imbues Pennsylvania jurisprudence with its unique character but, rather, the history of our case law as it has developed in the area of search and seizure.” Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655, 662 n. 11 (2000) (citation omitted).

Turning to the history of Article I, Section 8, Edmunds noted that Pennsylvania’s constitutional protection against unreasonable search and seizure predated the Fourth Amendment by fifteen years, and, as a part of the Declaration of Rights, was “an organic part of [Pennsylvania’s] original constitution of 1776.” Edmunds, supra at 896; see also Sell, supra at 466. The “modern” version of the search and seizure provision, i.e., Article I, Section 8, dates from 1790. Edmunds, supra at 897. Edmunds also noted the primary purpose of the warrant requirement guaranteed by Article I, Section 8:

The primary purpose of the warrant requirement was to abolish ‘general warrants,’ which had been used by the British to conduct sweeping searches of residences and businesses, based upon generalized suspicions. Therefore, at the time the Pennsylvania Constitution was drafted in 1776, the issue of searches and seizures unsupported by probable cause was of utmost concern to the constitutional draftsmen.

Id. at 897 (internal citations omitted).

Despite the early constitutional guarantees of the right to be free from unreason*198able search and seizure, Edmunds recognized that the remedy provided by the exclusionary rule had been unavailable in Pennsylvania until it was mandated by the 1961 ruling of the U.S. Supreme Court in Mapp, supra. See text, supra. However, as discerned in Edmunds, beginning in the 1970’s, “this Court began to forge its own path under Article I, Section 8 of the Pennsylvania Constitution, declaring ... that Article I, Section 8 [] embodied a strong notion of privacy, notwithstanding federal cases to the contrary.” Edmunds, supra at 898 (“From DeJohn forward, a steady line of caselaw has evolved under the Pennsylvania Constitution, making clear that Article I, Section 8 is unshakably linked to a right of privacy in this Commonwealth.”) (citing Platou, supra (1973); DeJohn, supra (1979); Sell, supra (1988); Blystone, supra (1988); and Melilli, supra (1989)); and Glass, supra at 662 n. 11 (stating that Edmunds found a “clear divergence from [the] philosophical underpinnings of [the] federal exclusionary rule [beginning] in 1978”) (internal quotation marks omitted).

Based on this emphasis on personal privacy, Edmunds concluded that the exclusionary rule in Pennsylvania “served to bolster the twin aims of Article I, Section 8; to -wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause.” Id. at 899. Edmunds explicitly rejected the U.S. Supreme Court’s view in