J-A14033-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

STEWART ENOS,

                         Appellee                    No. 1131 EDA 2016


           Appeal from the Judgment of Sentence March 22, 2016
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008798-2014


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

CONCURRING MEMORANDUM BY BENDER, P.J.E.:FILED DECEMBER 08, 2017

      I agree with the Majority that the trial court abused its discretion by

entertaining Appellee’s untimely suppression motion based solely on the

court’s desire to avoid a collateral ineffectiveness claim.   I recognize that

decision as the holding in this case and, consequently, I view the Majority’s

analysis of the underlying constitutional claim as dicta, regardless of its

merit. Nevertheless, I write to express my concerns with that analysis.

      Here, without a warrant, and lacking any exigency justification, the

police enlisted a private citizen, the confidential informant (“CI”), to conduct

a surreptitious search within Appellee’s vehicle with a video camera.       The

Majority tacitly approves of this warrantless search by concluding that

Appellant “voluntarily invited” the CI into his car, thereby “relinquishing his

reasonable expectation of privacy” and with it, “the protections of the Fourth
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Amendment [of the United States Constitution] and Article I, Section 8” of

the Pennsylvania Constitution. Majority Opinion at 14.

      If the CI had come to the police, unsolicited, with the very same video

recording of Appellee, I would have no complaint with the Majority’s

analysis. The Fourth Amendment and Article I, Section 8 are restraints on

state action, not the behavior of individual citizens. Here, however, the CI

acted as no more than an extended organ of the state. The police provided

the CI with both the camera to record the illicit transaction and the currency

to effectuate it.   It is plainly disingenuous to construe this matter as an

interaction between two private parties.

      If ‘privacy’ is to mean anything to us as a society, it must mean that

our right to selectively include individuals in our private affairs is not so

easily breached by surreptitious ploys.    If we recoil at the notion that a

private response to an email purporting to be from our bank vitiates our

privacy right to the information in that response, even when that email was

sent by an internet scammer, we should also recoil at the notion that the

Commonwealth can enter our cars to record our behavior, without a

warrant, under the false pretense of doing so under the guise of just another

private citizen.

      What terrible burden would confront the authorities if they had to seek

a warrant to conduct such a search? What overwhelming hurdle would the

courts impose on police if these actions were not condoned? The answer is

so underwhelming. The police would merely have to obtain a warrant from a

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magistrate based on probable cause to conduct this search, as required by

our state and federal constitutions – a standard which most likely could have

easily been met by means of an affidavit provided by the CI regarding his

prior knowledge of Appellee’s drug dealing.

    The Majority’s analysis reflects no such balancing of interests between

the legitimate police power and an individual’s right to privacy. The Majority

does rightfully recognize the sanctity of the privacy one reasonably expects

in one’s own home, as well as the relatively diminished expectation of

privacy one can expect in their own vehicle. However, from that point on, I

find the Majority’s analysis unconvincing that a diminished expectation of

privacy in a vehicle effectively constitutes no expectation of privacy under

the facts of this case.

      However, the Majority’s analysis, I concede, is not without precedent.

The Majority relies, understandably, on Commonwealth v. Blystone, 549

A.2d 81 (Pa. 1988) (holding no constitutional violation when a suspect's

conversations with an informant were intercepted with the consent of the

informant and without a warrant), and Blystone itself was firmly grounded

on decisions by the United States Supreme Court, including, among other

cases, Lopez v. U.S., 373 U.S. 427 (1963) (holding a government agent’s

secretive recording of a conversation with defendant in his office was not

violative of the Fourth Amendment, because the agent was voluntarily

permitted into the office with the defendant’s consent).




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      Nevertheless, I stand with the late Justice Brennan who, confronted

with the Lopez Majority’s reasoning, dissented, in pertinent part, as follows:

             The other half of the Government's argument is that Lopez
      surrendered his right of privacy when he communicated his
      ‘secret thoughts’ to Agent Davis. The assumption, manifestly
      untenable, is that the Fourth Amendment is only designed to
      protect secrecy. If a person commits his secret thoughts to
      paper, that is no license for the police to seize the paper; if a
      person communicates his secret thoughts verbally to another,
      that is no license for the police to record the words. The right of
      privacy would mean little if it were limited to a person's solitary
      thoughts, and so fostered secretiveness. It must embrace a
      concept of the liberty of one's communications, and historically it
      has. ‘The common law secures to each individual the right of
      determining, ordinarily, to what extent his thoughts,
      sentiments, and emotions shall be communicated to others …
      and even if he has chosen to give them expression, he generally
      retains the power to fix the limits of the publicity which shall be
      given them.’ Warren and Brandeis, The Right to Privacy, 4
      Harv.L.Rev. 193, 198 (1890). (Emphasis supplied.)
                                        …
             It is no answer to say that there is no social interest in
      encouraging Lopez to offer bribes to federal agents. Neither is
      there a social interest in allowing a murderer to conceal the
      murder weapon in his home. But there is a right of liberty of
      communications as of possessions, and the right can only be
      secure if its limitations are defined within a framework of
      principle. The Fourth Amendment does not forbid all searches,
      but it defines the limits and conditions of permissible searches;
      the compelled disclosure of private communications by electronic
      means ought equally to be subject to legal regulation. And if
      this principle is granted, I see no reasoned basis for reaching
      different results depending upon whether the conversation is
      with a private person, with a federal undercover agent …, or with
      an avowed federal agent, as here.

Lopez, 373 U.S. at 449–51 (J. Brennan, Dissenting) (citation omitted).

      Extrapolating from Justice Brennan’s dissenting thoughts in Lopez, I

fear we have now reached the point, as Justice Brennan warned, where our


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right to ‘privacy,’ arising from the Fourth Amendment and its analogue in

Article I, Section 8, means no more than mere ‘secrecy.’          As we enter a

world of exponentially proliferating technology, which further degrades any

practical right to privacy, I believe it is time to reconsider the limited view of

the privacy right that we have inherited from narrow majority of jurists living

in the mid-20th century.     Moreover, I believe the burden on the state to

obtain a warrant in order to secure such evidence for use in court is a trivial

price to pay to secure a more robust right to privacy.




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