                            [J-39-2019] [MO: Dougherty, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,                 :   No. 45 MAP 2018
                                                  :
                       Appellee                   :   Appeal from the Order of Superior
                                                  :   Court at No. 1656 MDA 2016 dated
                                                  :   February 13, 2018 Affirming the
                v.                                :   Judgment of Sentence dated May 10,
                                                  :   2016 by the Cumberland County
                                                  :   Court of Common Pleas, Criminal
    DYLAN SCOTT TURPIN,                           :   Division, at No. CP-21-CR-0000623-
                                                  :   2015
                       Appellant                  :
                                                      ARGUED: May 15, 2019


                                   DISSENTING OPINION


JUSTICE DONOHUE                                            DECIDED: September 26, 2019

        The Majority holds that under the Pennsylvania Constitution, an individual has no

protected reasonable expectation of privacy in his private bedroom if he shares a home

with other unrelated individuals. Majority Op. at 21. In one sentence, the Majority curtly

explains its disregard for our Constitution’s recognition of the fundamental right to privacy:

“We recognize appellant had a reasonable expectation of privacy in his bedroom but …

this expectation of privacy does not transform the single family townhouse described in

the warrant into a multi-unit dwelling.” Id. at 20 (internal citation omitted). With its opinion,

the Majority has reduced the analysis of the warrant requirement of Article I, Section 81



1 “The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or to seize any
person or things shall issue without describing them as nearly as may be, nor without
to a simple application of zoning law concepts without any consideration for what our

Constitution is intended to protect – the privacy rights of individuals.

       Our constitutional law is generally developed as we consider cases involving

individuals who have been convicted of crimes. But our holdings define the scope of the

protections from governmental intrusions to which all Pennsylvanians are entitled. The

Majority’s holding profoundly impacts young adults who share a home to economize early

in their careers or while in college; adults in their golden years who, by virtue of being

widowed or divorced, choose shared living arrangements to maintain a standard of living

or for companionship; and adults who, because of financial constraints, must share the

cost of a home in order to survive. To hold that they have no rights to privacy in their

separate bedrooms, in contrast to those who have the wherewithal to live in a separate

residence, is unsupportable, particularly where the driving rationale for this dichotomy is

the Majority’s overriding concern for the convenience of law enforcement. See Majority

Op. at 20-21. This rationale is perverse since protection from unreasonable government

intrusion is the precise reason for Article I, Section 8.

       Although police had no probable cause to connect Dylan Scott Turpin to the sale

of drugs, the Majority holds that police could permissibly search his private bedroom

because there was probable cause to suspect that his housemate, Benjamin Irvin, was

selling drugs. Despite recognizing the greater privacy protections that our Constitution




probable cause, supported by oath or affirmation subscribed to by the affiant.” Pa. Const.
art. I, § 8.



                            [J-39-2019] [MO: Dougherty, J.] - 2
affords to individuals under Article I, Section 8 over that of the Fourth Amendment,2 as

well as the expectation of privacy that Turpin enjoyed in his private bedroom, the Majority

nonetheless reaches this conclusion simply because the search conducted was of a

single-family home.3 Majority Op. at 20. As stated, in my view, the constitutional rights

of individuals do not depend upon, and cannot be limited by, the zoning laws that

categorize the structure in which they reside. Rather, I would conclude that where, as

here, police are aware that the residence to be searched is shared by unrelated adults,

the Pennsylvania Constitution requires that the affidavit of probable cause expressly

include the basis for probable cause to search the area of the home occupied exclusively

by a person other than the target of the warrant.

       The law is clear that if a person has an expectation of privacy in a particular area,

police generally must first obtain a warrant, supported by probable cause, to search the

area. Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017). Pursuant to Article

I, Section 8 of the Pennsylvania Constitution, “no warrant to search any place … shall

issue without describing them as nearly as may be, nor without probable cause.” Pa.

Const. art. I, § 8 (emphasis added). Based on the emphasized language, we require the

description of the place to be searched, both in the warrant application and in the warrant

itself, “to be as particular as is reasonably possible.” Commonwealth v. Grossman, 555

A.2d 896, 899 (Pa. 1989); see also Pa.R.Crim.P. 205(A)(3), 206(3) (requiring the



2 It is pertinent to note that there is no discernable distinction between the rights defined
by the Majority in this case under Article I, Section 8 and the Fourth Amendment.
3 I do not address the Majority’s analysis under the Fourth Amendment, see Majority Op.
at 12-15, as I conclude that the decision cannot be sustained under the Pennsylvania
Constitution.


                            [J-39-2019] [MO: Dougherty, J.] - 3
application for a search warrant and the warrant itself “describe with particularity the

person or place to be searched”).

       As our Court has held, the “as nearly as may be” language sets us apart from the

Fourth Amendment to the United States Constitution and provides greater privacy

protections to our citizens than does the federal charter. Grossman, 555 A.2d at 899

(stating that the language requiring the description to be “as nearly as may be” in Article

I, Section 8 “is more stringent than that of the Fourth Amendment, which merely requires

particularity in the description”) (footnote omitted).

              [Pursuant to Article I, Section 8,] a warrant must describe the
              place to be searched … with specificity, and the warrant
              must be supported by probable cause. The place to be
              searched must be described “precise enough to enable the
              executing officer to ascertain and identify, with reasonable
              effort, the place intended, and where probable cause exists
              to support the search of the area so designated, a warrant
              will not fail for lack of particularity.

Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998) (emphasis added; internal

citation omitted).

       In other words, the warrant must specifically describe the place to be searched,

and there must be probable cause to support the search of that place. Furthermore, this

Court has long recognized that “a search warrant directed against a … multiple-

occupancy structure will be held invalid for lack of specificity if it fails to describe the

particular room or subunit to be searched with sufficient definiteness to preclude a search

of other units.” Commonwealth v. Carlisle, 534 A.2d 469, 471 (Pa. 1987). The intent

behind this requirement is to prevent a search, without probable cause, of other

apartments or units. Id. Although Carlisle involved a multiunit apartment building, this

statement of the law is no less applicable to the circumstances currently before this Court,



                            [J-39-2019] [MO: Dougherty, J.] - 4
as it pertains to the search of a person’s private living quarters, where he has a

reasonable expectation of privacy, and for whom the police do not have probable cause

to suspect involvement in criminal activity.

       In the case at bar, the affidavit of probable cause supporting the issuance of the

warrant indicates that police were aware that Turpin lived in the townhouse located at 105

E. Green Street with Irvin. Affidavit of Probable Cause at 2. The police admittedly did

not have probable cause to suspect Turpin’s involvement in criminal activity.

Nonetheless, police sought and obtained a warrant for the entirety of the residence. Upon

arriving at the home to execute the search warrant, Turpin identified his bedroom to police

and informed them that he kept the door to his bedroom closed when he was not home

and that Irvin was not permitted to enter his bedroom without permission. Police searched

Turpin’s bedroom anyway. Under these circumstances, the warrant lacked the requisite

specificity under Article I, Section 8, and police lacked probable cause to search Turpin’s

bedroom, rendering the search illegal and the items seized subject to suppression.

       The Majority justifies the search because Irvin could have frustrated law

enforcement efforts by hiding his drugs in Turpin’s room. See Majority Op. at 20-21. I

find this argument unpersuasive, as Irvin could have hidden his drugs anywhere, including

at an entirely separate location. Moreover, if that is the basis for allowing the search of a

private bedroom of a person police have no probable cause to believe is involved in the

sale of drugs, then I agree with Turpin’s argument that Irvin, and not Turpin, should have

been charged with the drugs found in Turpin’s room. See Turpin’s Brief at 21.

       The Majority’s reliance on Waltson to conclude that the search of Turpin’s room

was permissible is not warranted. See Majority Op. at 20. The Majority acknowledges




                            [J-39-2019] [MO: Dougherty, J.] - 5
that “Waltson is not on all fours with the present scenario[ as] the house at issue in

Waltson was occupied by only one individual while the house at issue here was occupied

by multiple unrelated individuals.” Id. at 19. In fact, not only is Waltson not controlling, it

does not even remotely address the issue presented here – unrelated individuals with

distinct privacy interests in the same home. As the Majority recognizes and as stated

above, Turpin had a reasonable expectation of privacy in his bedroom, which he kept

closed and did not allow his roommate to access without permission. Id. at 20.

       I further disagree with the Majority’s reliance on the Superior Court’s decision in

Commonwealth v. Korn, 139 A.2d 249 (Pa. Super. 2016), to support its conclusion. See

Majority Op. at 19-20. In Korn, police had probable cause to suspect that Aaron Murray

was selling drugs out of his bedroom in an apartment located in State College,

Pennsylvania but police were unaware that Murray had a roommate and had no probable

cause to suspect his involvement in any crimes. They obtained a search warrant for the

entire apartment, listing Murray as the sole occupant of the apartment. Upon executing

the warrant, however, police learned that Jordan Korn also lived in the apartment, and

found him in a separate bedroom behind a locked door. When Korn opened the door,

police searched him and recovered drugs from his person. Police proceeded to search

his bedroom, ultimately locating a key that unlocked a desk safe, revealing pills packaged

for sale, drug paraphernalia and a large amount of United States currency.

       The Superior Court majority reversed the lower court’s suppression order, relying

on Waltson for the proposition that because Korn and Murray lived together in a single

residence, police could permissibly search any room of the apartment for drugs. Korn,

139 A.3d at 256. The Superior Court found that because Korn’s bedroom did not have a




                            [J-39-2019] [MO: Dougherty, J.] - 6
deadbolt, key entry, separate mailbox, private entrance or address, it did not constitute a

“separate living unit,” as found by the suppression court, but instead was part of the

single-family residence, and thus properly searched by police. Id. at 254, 256.

       Korn is not on point because unlike in the case at bar, when obtaining the warrant,

the police officers in were not aware that the home was shared by an individual other than

the target. The Majority draws from Korn its indicia of what constitutes a separate living

unit. It is absurd to hinge a finding that a house is a privacy-right-protected multiple

occupancy structure on whether a resident mounted a mailbox or deadbolt outside of his

bedroom door.4 Few, if any, single-family homes have separate mailboxes or deadbolts

on bedroom doors or private entrances to individual bedrooms. Of course, all of this is

irrelevant since, according to the Majority, even deadbolts and/or locks on one’s private

bedroom will not assure that an individual’s bedroom is a private sanctuary free from

government intrusion. Majority Op. at 15 n.7. The Majority’s decision therefore effectively

eliminates the Article I, Section 8 rights of anyone who shares a single-family home with

another unrelated adult, allowing their privacy to be freely invaded based solely on the

existence of probable cause that their housemate may have committed a crime.

       As such, the Majority’s decision discriminates against those who choose not to live

alone and those who cannot afford to live in their own separate home. They are not

entitled to the same constitutional protection of their privacy interests as those who

choose to or have the means to live by themselves. As aptly observed by the Supreme



4 In fact, many apartment complexes do not have mailboxes outside of each unit, but
have an area for mail delivery in an entirely separate location in the building. Yet a
warrant is unquestionably overbroad if it does not state, with particularity, the specific
apartment to be searched. Carlisle, 534 A.2d at 471.


                           [J-39-2019] [MO: Dougherty, J.] - 7
Court of Iowa, “[I]t is not unusual to see a group of unrelated single persons living together

and sharing expenses. We do not believe that when individuals decide on this type of

living arrangement, they believe they are giving up the right to privacy in their personal

space.” State v. Fleming, 790 N.W.2d 560, 567 (Iowa 2010). In such circumstances,

there are common spaces shared by all residents, “but the individual bedrooms remain

private,” and this is a “social norm” that is “well established.” Id. A person should not be

penalized with the loss of privacy rights for the choice or necessity of living with other,

unrelated adults.

       The fact that the search occurred inside a structure typically zoned as “single-

family” is wholly irrelevant to this constitutional discussion. Even the United States

Supreme Court has stated that the Fourth Amendment (which decidedly provides less

protection to a person’s individual privacy rights) “protects people, not places” and a

person’s expectation of privacy. Carpenter v. United States, 138 S. Ct. 2206, 2213

(2018). “[O]fficial intrusion” into a place where a person has an expectation of privacy,

i.e., “one that society is prepared to recognize as reasonable, … requires a warrant

supported by probable cause.” Id.

       The Majority’s holding is particularly jolting in light of the facts of the case before

us. When the police applied for the warrant at issue, the affidavit of probable cause made

clear that the police were aware, based on their three months of surveillance, that two

individuals, one of whom was Turpin, resided or at least frequently stayed at the residence

shared by Irvin, the target of the investigation. Affidavit of Probable Cause at 2. Indeed,

Turpin was referred to as an “occupant” of the residence in the affidavit of probable cause.

Id. at 2-3. It is also clear (in fact, admitted) that the police did not have probable cause to




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establish that Turpin was engaged in criminal activity. See Commonwealth’s Brief at 17.

In light of the clear elevated specificity requirement of Article I, Section 8 and the

uncontroverted recognition that Turpin had a reasonable expectation of privacy in his

private bedroom, it is to me an inescapable conclusion that the warrant in this case cannot

be upheld in the face of a challenge to its overbreadth. The warrant should have been

issued to exclude the area of the residence within the exclusive control of Turpin or any

other known resident.

       I recognize the Majority’s concern for the practicalities of the execution of search

warrants by law enforcement, but those concerns are not implicated in this case. Turpin

was on the premises and specifically identified his private bedroom. An appropriately

specific warrant could have been easily executed, and all of the evidence in the

possession of Irvin would have been confiscated, accomplishing the stated mission.

       There may be cases where law enforcement, after months of surveillance of a

residence, do not detect that individuals other than the target live in that home. There

may also be cases where, at the time of the execution of an appropriately specific warrant,

it is not reasonably feasible to determine the area of the residence excluded from its

scope. The case before us does not fit either of these hypothetical situations and I

express no opinion on the resolution of cases presenting those circumstances. Our case

law develops incrementally and in my view, the stark facts of this case demand the

establishment of a baseline recognition that the reasonable expectation of privacy of

unrelated individuals living in a shared residence are constitutionally protected by the

warrant provisions of Article I, Section 8 of our Constitution.




                            [J-39-2019] [MO: Dougherty, J.] - 9
      For the foregoing reasons, I would therefore reverse the decision of the Superior

Court and remand for further proceedings before the suppression court.




                         [J-39-2019] [MO: Dougherty, J.] - 10
