                           [J-42-2016][M.O. – Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 63 MAP 2015
                                              :
                   Appellee                   :   Appeal from the Order of the Superior
                                              :   Court at No. 396 MDA 2014 dated
             v.                               :   10/8/14 reconsideration denied 12/2/14
                                              :   affirming the judgment of sentence of
                                              :   Dauphin County Court of Common
KHIRI ARTER,                                  :   Pleas, Criminal Division, at No. CP-22-
                                              :   CR-0001297-2012, dated 2/4/14
                   Appellant                  :
                                              :
                                              :   ARGUED: April 5, 2016




                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: December 28, 2016


      I respectfully dissent, since, as a predicate to application of the exclusionary rule

in the context of parole revocation proceedings, I would require a factual determination

concerning whether officers involved proceeded with an improper motive.

      Since state courts, in the 1970s, began to ground departures from federal

constitutional doctrine upon interpretations of their own state constitutions’ counterparts

to provisions of the United States Constitution, this “new judicial federalism” has been

the subject of substantial debate. A prominent line of controversy centers upon the

imposition, by state courts, of an exclusionary rule where the United States Supreme

Court has determined that none should apply. See, e.g., Lawrence Friedman, Reactive

and Incompletely Theorized State Constitutional Decision-Making, 77 MISS. L.J. 265,

300 (2007) (positing that this Court’s seminal decision in Commonwealth v. Edmunds,
526 Pa. 374, 586 A.2d 887 (1991), failed to supply “a coherent theory to explain how

the exclusionary rule should be understood and applied” for purposes of state

constitutional law).

       In terms of considering when the Pennsylvania Constitution should be invoked to

justify suppression of evidence in the search-and-seizure setting, I agree with those who

emphasize that Article I, Section 8 of the state charter and the Fourth Amendment to the

United States Constitution reflect what, to their respective framers, was the same

normative protection. See Commonwealth v. Schaeffer, 370 Pa. Super. 179, 238-39 &

nn.6-7, 536 A.2d 354, 384 & nn.6-7 (1987) (Kelly, J., concurring and dissenting)

(explaining that the terms presently reposed in Article I, Section 8 were adopted by the

Pennsylvania General Assembly in 1790, contemporaneous with the Legislature’s

ratification of the Fourth Amendment, and highlighting the close similarity of such

respective provisions); accord Arthur Leavens, State Constitutionalism: State-Court

Deference or Dissonance?, 33 W. NEW ENG. L. REV. 81, 82-83 (2011) (making the same

point concerning the Massachusetts analogue to the Fourth Amendment). I also believe

that prominent decisions in the Pennsylvania line of the new judicial federalism have

inordinately ignored or downplayed the nearly-200 years of history throughout which this

Court had maintained the common law approach of refusing to impose an exclusionary

precept, over and against arguments advocating for its recognition under the

Pennsylvania Constitution. See generally Commonwealth v. Russo, 594 Pa. 119, 134,

934 A.2d 1199, 1208 (2007) (collecting cases and explaining that “no decision of this

Court has squarely purported to examine and disapprove of the long and unbroken line

of pre-Mapp [v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961)] decisions holding that, far




                            [J-42-2016][M.O. – Todd, J.] - 2
from recognizing greater exclusionary-rule-related privacy rights, Article I, Section 8

contained no exclusionary remedy whatsoever” (emphasis in original)).1

       From my point of view, the failure to remediate the early lapses in the above

respects -- as the new judicial federalism has matured and the Court has continued to

selectively sanction instances of departure from federal constitutional doctrine -- has left

the Court vulnerable to criticisms of revisionism and diminished legitimacy in this line of

decisions. See, e.g., McCarthy, Counterfeit Interpretations, 58 SYRACUSE L. REV. at

135-36; cf. James W. Diehm, New Federalism and Constitutional Criminal Procedure:

Are We Repeating the Mistakes of the Past?, 55 MD. L. REV. 223, 244 (1996) (referring

to a “perplexing melange of disparate constitutional principles” reflected in state

constitutional law decisions); James A. Gardner, The Failed Discourse of State

Constitutionalism, 90 MICH. L. REV. 761, 763 (1992) (characterizing various departure

pronouncements under state constitutions as reflecting a “vast wasteland of confusing,

conflicting, and essentially unintelligible pronouncements”). Since the exclusionary rule

1
  For example, the majority references Commonwealth v. Sell, 504 Pa. 46, 470 A.2d
457 (1983), for the proposition that the survival of the normative protection embodied in
Article I, Section 8 “through over 200 years of profound change in other areas
demonstrates that the paramount concern for privacy . . . continues to enjoy the
mandate of the people of this Commonwealth.” Majority Opinion, slip op. at 12 (quoting
Sell, 504 Pa. at 65, 470 A.2d at 467). As in a number of this Court’s previous decisions,
however, this manner of presentation downplays the fact that, throughout most of this
200-year history, this Court did not believe that such mandate should encompass any
requirement that evidence secured in violation of constitutional rights must be
suppressed. See Russo, 594 Pa. at 133, 934 A.2d at 1207 (“[A]ny historical survey
respecting . . . any suppression case under the Pennsylvania charter, hits a brick wall in
1961; there is no relevant history to support a broader state constitutional interpretation
because there was no point in seeking such an interpretation, at least in a criminal case,
since there was no exclusionary remedy available.” (emphasis in original)); accord
Francis Barry McCarthy, Counterfeit Interpretations of State Constitutions in Criminal
Procedure, 58 SYRACUSE L. REV. 79, 117 (2007) (“Any claim by one of the fourteen
states that rejected the exclusionary rule that the state has a long history of protecting
state constitutional rights must ring hollow.”).


                             [J-42-2016][M.O. – Todd, J.] - 3
was imposed on Pennsylvania under federal constitutional doctrine after a prolonged

period of Commonwealth-level rejection, see Russo, 594 Pa. at 132-34, 934 A.2d at

1207-08, it should be apparent that, when this Court has expanded the field of

mandatory suppression on state constitutional grounds, it has built upon a foundation

constructed by the Supreme Court of the United States, not one solidly premised upon

unique state sources.    The Edmunds formulation notwithstanding, I submit that the

departure cases expanding the exclusionary rule ultimately distill to policy choices on

the part of the prevailing majorities pertaining to a non-textual, judge-made convention

which should be administered with great restraint. See Commonwealth v. Williams, 454

Pa. 368, 372, 312 A.2d 597, 600 (1973).2

      The Court had recently moved to a more overt cost-benefit balancing between

the value of extending exclusion as a “remedy,”3 and the corresponding impairment to

the truth-determining process in the administration of justice. See Henderson, 616 Pa.

at 289, 47 A.3d at 804 (“The greatest difficulty in the enforcement of a prophylactic rule

intended to guard individual liberties is on account of the competing value in society’s

2
  Parenthetically, I observe that this Court’s Article I, Section 8 jurisprudence otherwise
seemed to have been trending toward retrenchment in recent years. See, e.g.,
Commonwealth v. Gary, 625 Pa. 183, 242, 91 A.3d 102, 138 (2014) (plurality)
(reflecting the present culmination of decades of controversy via the adoption of the
federal automobile exception to the warrant requirement as a matter of state
constitutional law); Commonwealth v. Henderson, 616 Pa. 277, 289-90, 47 A.3d 797,
804-05 (2012) (refusing to enforce an independent-source requirement under the
Pennsylvania Constitution in the absence of police misconduct).

3
  Notably, the remedial aspect of suppression is indirect, as the exclusion of evidence
does not, “strictly speaking, remedy the privacy, dignity, and security harms that the
relevant constitutional provisions seek to prevent.” Aziz Z. Huq, Judicial Independence
and the Rationing of Constitutional Remedies, 65 DUKE L.J. 1, 18 (2015). Nevertheless,
I recognize that “[e]xclusion is fairly ranked as a remedy to the extent it is sought by a
putatively injured party, and purports to eliminate an advantage that the state as
counterparty possesses as a consequence of the constitutional wrong.” Id.


                             [J-42-2016][M.O. – Todd, J.] - 4
interest in identifying and punishing wrongdoers.”). From my point of view, particularly

given that offenders in the parole revocation setting have a lesser expectation of

privacy, and in light of the strong societal interest in ensuring compliance with parole-

release requirements, I find that the more restrained and appropriate balance is to

decline to award suppression in parole-revocation proceedings in the absence of a

judicial determination that law enforcement or supervising officials acted with an

improper motive. See, e.g., Logan v. Commonwealth, 688 S.E.2d 275, 278-79 (Va.

2010) (implementing such an approach, while defining “bad faith” as directed to

scenarios in which “the search was motivated by bias, personal animus, a desire to

harass, a conscious intent to circumvent the law, or a similar improper motive”).

       Finally, I would also suggest that such an approach would have a greater

potential for sustainability relative to a balancing assessment concerning which

reasonable minds will always differ. Accord Henderson, 616 Pa. at 290, 47 A.3d at 805

(positing that “the ‘twin aims’ of Article I, Section 8 – namely, the safeguarding of privacy

and enforcement of the probable-cause requirement – may be vindicated best, and

most stably, by taking a more conservative approach to the departure this Court has

taken from the established Fourth Amendment jurisprudence”).




                             [J-42-2016][M.O. – Todd, J.] - 5
