                             [J-71-2018][M.O. - Donohue, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  WESTERN DISTRICT



                                              :   No. 56 WAP 2017
COMMONWEALTH OF PENNSYLVANIA,                 :
                                              :   Appeal from the Order of the Superior
                      Appellee                :   Court entered May 23, 2017 at No. 951
                                              :   WDA 2015, affirming the Judgment of
                                              :   Sentence of the Court of Common
                                              :   Pleas of Allegheny County entered May
                 v.                           :   21, 2015 at No. CP-02-CR-0003205-
                                              :   2014.
MOLLY HLUBIN,                                 :
                                              :
                      Appellant               :
                                              :   ARGUED: October 23, 2018
                                              :




                       CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                              DECIDED: MAY 31, 2019


      I join Parts I and IV of the majority opinion, and I agree that the police officer who

seized Appellant at the sobriety checkpoint lacked statutory authorization to do so.

Consistent with the majority’s approach, I also find that the remedy of suppression is

presently warranted in the constitutionally sensitive arena of suspicionless seizures.

      I would not, however, effectively overrule the decision in Commonwealth v.

O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989), without advocacy on the subject. In this

regard, I have previously expressed an array of concerns with courts acting sua sponte

to depart from precedent. See Freed v. Geisinger Med. Center, 607 Pa. 225, 240-45, 5

A.3d 212, 221-25 (2010) (Saylor, J., dissenting). From my point of view, the application
of the exclusionary rule to statutory violations, in scenarios in which suppression is not

constitutionally required, should be approached as a matter of statutory interpretation

(i.e., did the General Assembly intend to afford the remedy of suppression?). Absent

otherwise discernable guidance from the Legislature, it does not seem to me that the

O’Shea test -- perhaps subject to some refinement going forward to conform it more

closely to principles of statutory construction -- is so misplaced as to warrant its

disapproval based on premises not argued by the parties.



      Justices Baer and Dougherty join this concurring and dissenting opinion.




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