COMMONWEALTH of Pennsylvania, Appellee v. Khiri ARTER, Appellant
No. 63 MAP 2015
Supreme Court of Pennsylvania.
ARGUED: April 5, 2016. DECIDED: December 28, 2016.
151 A.3d 149
James Jude Karl, Esq., Colby Joseph Miller, Esq., Bradley Adam Winnick, Esq., for Arter, Khiri, Appellant.
Joseph P. Cardinale Jr., Esq., Harrisburg, Kristie M. Falbo, Esq., Dauphin County District Attorney‘s Office, Edward Michael Marsico Jr., Esq., Harrisburg, for Commonwealth of Pennsylvania, Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION
JUSTICE TODD
We granted allowance of appeal in the instant case to determine whether illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to
I. Factual and Procedural Background
At approximately 5:30 p.m. on May 15, 2013, Harrisburg Police Officer Darin Bates and Dauphin County Adult Probation Officer (“APO“) Richard Anglemeyer were traveling in an unmarked police vehicle in an area known for frequent drug activity when they observed two men conversing on a street corner; one of those men was Appellant. According to Officer Bates’ testimony, APO Anglemeyer recognized Appellant as one of his parolees,1 and asked Officer Bates to stop the vehicle. APO Anglemeyer walked toward Appellant, and then summoned Appellant to come and speak with him. APO Anglemeyer told Appellant that he was his assigned probation officer, and proceeded to give him reporting instructions. APO Anglemeyer then asked Appellant if he could search him, and Appellant declined, stating, “Come on, man. You gonna do me like that? I just got out of jail.” N.T. Hearing, 11/14/13, at 16. Notwithstanding Appellant‘s objection, APO Anglemeyer performed a pat-down search of Appellant and felt a bulge in the right coin pocket of Appellant‘s pants. APO Anglemeyer reached into Appellant‘s pocket and retrieved what appeared to be crack cocaine. APO Anglemeyer then “turned the case over to Officer Bates,” who arrested Appellant. Id. at 18. A search incident to his arrest revealed that Appellant was carrying a second bag of cocaine, a digital scale, a cell phone, and $21.
The Commonwealth charged Appellant with possession with intent to deliver a controlled substance and possession of drug paraphernalia. As a consequence of the new criminal charges, the Dauphin County Adult Probation and Parole Office issued
At the ensuing criminal proceedings on the new drug charges, commenced in the Dauphin County Court of Common Pleas, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer. The Honorable Andrew H. Dowling granted Appellant‘s motion to suppress, concluding the search of Appellant was not supported by reasonable suspicion, as required under
On January 13, 2014, in anticipation of his parole revocаtion hearing, and recognizing that the United States Supreme Court has ruled that the exclusionary rule is not applicable to revocation proceedings under the Fourth Amendment, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer under the privacy protections of
Appellant filed a petition for allowance of appeal, and this Court granted allocatur to consider whether the Superior Court erred in upholding the trial court‘s denial of Appellant‘s motion to suppress based on
II. Analysis
As Appellant challenges the Superior Court‘s decision affirming the trial court‘s denial of his motion to suppress, we first note our well established standard of review of claims regarding the denial of a suppression motion:
We may consider only the Commonwealth‘s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the suppression court‘s conclusions of law.
Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 106 (2014) (citation omitted). In reviewing questions of law, our standard of review is de novo and our scope of review is plenary. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 903 (2007).
The instant matter implicates both the Fourth Amendment to the United States Constitution, and
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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 probable cause, supported by oath or affirmation subscribed to by the affiant.
Plainly speaking, both the Fourth Amendment and
To effectuate the rights guaranteed under the Fourth Amendment, in the early part of the last century, the United
The high Court has repeatedly explained that the purpose of the exclusionary rule is not to “cure the invasion of the defendant‘s rights which he has already suffered.” United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citation omitted). Rather, the rule is a “judicially created means of deterring illegal searches and seizures.” Scott, 524 U.S. at 363, 118 S.Ct. 2014 (citing United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). Thus, the high Court has stated that the exclusionary rule applies only “where its remedial objectives are thought most efficaciously served.” Calandra, 414 U.S. at 348, 94 S.Ct. 613; see also United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (“If ... the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.“); Leon, 468 U.S. at 908, 104 S.Ct. 3405 (evidence seized in good faith by police pursuant to warrant duly issued by a magistrate, but which is later deemed unsupported by probable cause, need not be suppressed pursuant to Fourth Amendment because the deterrence goal of the exclusionary rule would not be served). Further, the rule applies “only where its deterrence benefits outweigh its ‘substantial social costs.‘” Scott, 524 U.S. at 363, 118 S.Ct. 2014 (quoting Leon, 468 U.S. at 907, 104 S.Ct. 3405).
Of particular relevance to the instant case, in accordance with this balancing approach—requiring that the exclusionary rule‘s deterrence benefits outweigh its social costs—the United States Supreme Court consistently has declined to extend the exclusionary rule to proceedings other than criminal trials.
Finally, and dispositive of Appellant‘s right to relief under the Fourth Amendment, in Scott, the high Court specifically declined to extend application of the exclusionary rule to parole revocation proceedings. In Scott, which arose out of Pennsylvania state proceedings, a condition of Scott‘s parole was that he refrain from owning or possessing weapons. Scott signed a parole agreement which provided:
I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in [sic] the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.
524 U.S. at 360, 118 S.Ct. 2014.
Several months after he was paroled, parole officers suspected that Scott had violated several conditions of his parole, including the prohibition against possessing firearms. The parole officers arrested Scott at a local diner, whereupon Scott gave the parole officers the keys to his residence, which was owned by his mother. Without obtaining a warrant, the parole
Scott appealed, and the Commonwealth Court reversed and remanded, holding the search of Scott‘s residence was conducted without the owner‘s consent, and, moreover, was not authorized by any state statutory or regulatory framework ensuring the reasonableness of searches by parole officers. Commonwealth v. Scott, 668 A.2d 590, 597 (Pa. Cmwlth. 1995). Additionally, the court concluded that the exclusionary rule should apply because the benefit of deterring unlawful police conduct substantially outweighed the injury resulting from exclusion of the evidence. Id. at 600. The Commonwealth appealed the Commonwealth Court‘s decision, and, ultimately, this Court affirmed the Commonwealth Court‘s holding in Scott. Commonwealth v. Scott, 548 Pa. 418, 698 A.2d 32 (1997).2 Initially, we opined that the signed parole agreement was immaterial to Scott‘s Fourth Amendment right against unreasonable searches and seizures. Id. at 36. We then determined that the search of Scott‘s residence was unreasonable because it was supported by the agents’ “mere speculation,” as opposed to reasonable suspicion, of a parole violation. Id. Finally, “modify[ing]” our prior holding in Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (Pa. 1973), wherein we held
Subsequently, the United States Supreme Court granted certiorari, and reversed this Court‘s decision. Reiterating that the federal exclusionary rule is designed to deter illegal searches and seizures, and, thus, should only be applied where the deterrence objective can be served, and noting that it previously declined to extend the exclusionary rule to proceedings other than criminal trials, see Janis, Calandra, and Lopez-Mendoza, the high Court concluded:
Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.
524 U.S. at 364, 118 S.Ct. 2014.
While, as a federal matter, it is undisputed that the exclusionary rule does not apply to revocation proceedings, in the case sub judice, Appellant argues that this Court should apply the exclusionary rule to probation and parole revocation proceedings pursuant to the distinct privacy protections of
As we further explained in Edmunds, when a litigant seeks relief based exclusively on the Pennsylvania Constitution, as does Appellant in this case, it is important that the litigant brief and analyze the following four factors: (1) the text of the Pennsylvania constitutional provision; (2) the history of the provision, including Pennsylvania case law; (3) relevant case law from other jurisdictions; and (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Edmunds, 586 A.2d at 895; Commonwealth v. Russo, 594 Pa. 119, 934 A.2d 1199, 1205 (2007). Appellant has addressed in his brief each of the four Edmunds factors. Thus, to determine whether illegally-seized evidence is subject to the exclusionary rule under
A. Comparative text of federal and state constitutional provisions
The first prong of an Edmunds analysis requires an examination of the text of the relevant state constitutional provisions. As set forth above,
Security from searches and seizures
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 probable cause, supported by oath or affirmation subscribed to by the affiant.
The Fourth Amendment to the United States Constitution provides:
The text of the Pennsylvania Constitution is undeniably similar to that of the Fourth Amendment to the United States Constitution. We note that both provisions guarantee an individual‘s right to be free from unreasonable searches and seizures of their “person.” Further, neither provision specifically precludes application to probationers and/or parolees. Thus, we find a comparison of the text of the two provisions provides little guidance as to whether the exclusionary rule should apply to revocation proceedings pursuant to
B. History of Article I, Section 8 and interpretative case law
As this Court recounted in Edmunds, despite a common misconception that Pennsylvania‘s state constitution is patterned after the United States Constitution, the reverse is actually true: “[t]he federal Bill of Rights borrowed heavily from the Declarations of Rights contained in the constitutions of Pennsylvania and other colonies.” Id. at 896. In fact,
In construing
Article I, section 8 , we find it highly significant that the language employed in that provision does not vary in any significant respect from the words of its counterpart in our first constitution. The text ofArticle I, section 8 thus provides no basis for the conclusion that the philosophy and purpose it embodies today differs from those which first prompted the Commonwealth to guarantee protection from unreasonable governmental intrusion. Rather, the survival of the language now employed inArticle I, section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.
504 Pa. 46, 470 A.2d 457, 467 (1983).
Indeed, since 1973, this Court has repeatedly emphasized that
We have further declared that “[t]he notion of privacy in
Significantly, with respect to our employment of the exclusionary rule, in Edmunds, we most emphatically explicated the privacy focus of
Whethеr the United States Supreme Court has determined that the exclusionary rule does not advance the 4th Amendment purpose of deterring police conduct is irrelevant. Indeed, we disagree with that Court‘s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in “good faith” in carrying out their duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in “good faith” carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a
“good faith” exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.
Following Edmunds, we have continued to emphasize the unique privacy focus of
In Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996), we concluded that a police officer‘s seizure of evidence discarded by a fleeing individual during a police pursuit that was unsupported by reasonable suspicion or probable cause was an unconstitutional seizure under
In Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987), we determined that a canine sniff of a storage locker constitutes a search under
Although we have not previously addressed whether the state exclusionary rule applies to revocation proceedings, in Williams, supra, we declined to hold that
This Court reversed the Superior Court‘s decision. We first observed that probationers and parolees have “limited Fourth Amendment rights because of a diminished expectation of privacy,” such that a parole officer does not need probable cause to obtain a search warrant before conducting a search. 692 A.2d at 1035 (citing Griffin v. Wisconsin, 483 U.S. 868, 873-75, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). We further noted that, “[i]n order to ... facilitate the parolee‘s transition into society, the General Assembly has given the Parole Board broad powers to supervise a parolee and to impose regulations on a parolee‘s conduct upon release that the Commonwealth could not impose on ordinary citizens,” such as requiring a parolee to report regularly to his parole officer, live in a
We recognized, however, that, while diminished, a parolee does have a protected privacy interest under the Fourth Amendment, and, therefore, searches of probationers and parolees must be “reasonable.” Williams, 692 A.2d at 1035; see also Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093, 1096 (1993) (noting that U.S. Supreme Court has recognized that parolees do have “limited fourth and fifth amendment rights in parole revocation hearings,” and holding that, absent statutory or regulatory guidance, or an agreement by a parolee consenting to a warrantless search, the Fourth Amendment prohibits warrantless searches of probationers and parolees).5 Concluding that a warrantless search pursuant to a signed parole agreement “comports with the Fourth Amendment protection afforded to parolees by the United States Supreme Court” and our sister states, and noting that Williams signed a parole agreement specifically authorizing warrantless searches of his person and premises, we determined that the search of Williams’ bedroom was reasonable, and, therefore, that his Fourth Amendment rights had not been violated. 692 A.2d at 1037.
As Williams alternatively sought suppression of the evidence pursuant to
Notably, however, the critical issue in Williams, and in the cases relied on therein, was, in the first instance, the legality of the warrantless search under the federal and state constitutions. See Williams; People v. Slusher, 844 P.2d 1222, 1225 (Colo. Ct. App. 1992) (parole officers had reasonable grounds to believe that defendant was in violation of his parole based on information they received from the police and thus warrantless search of defendant‘s home was deemed proper); State v. Vailes, 564 So.2d 778, 781 (La. Ct. App. 1990) (probation officer‘s search of probationer‘s house was “reasonable” where officer had received information that defendant was possibly selling drugs and keeping weapons in his home); State v. Vega, 110 Idaho 685, 718 P.2d 598, 601 (1986) (information provided by parolee‘s girlfriend and victim identification of parolee as person who committed robbery was sufficient to support a reasonable belief that defendant had violated his parole).
By contrast, in the present case, the trial court determined that the search of Appellant was illegal in that it was not supported by probable cause or reasonable suspicion, a finding not presently before this Court. Rather, the issue before us is whether the illegally obtained evidence should have been suppressed in Appellant‘s parole revocation proceedings under
The decisions of this Court, discussed above, evidence that “the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the
C. Case law from other jurisdictions
We now turn to the third prong of Edmunds, which requires an examination of the decisions of our sister states that have considered whether their state constitutions afford greater protection than the Fourth Amendment with respect to аpplication of the exclusionary rule in probation and parole revocation proceedings. Appellant cites several decisions in which appellate courts have determined, based on the strong notion of the protection of privacy interests embodied in their state constitutions, that the exclusionary rule applies to revocation proceedings. In State v. Marquart, 123 N.M. 809, 945 P.2d 1027 (1997), the New Mexico Court of Appeals held that, pursuant to Article II, Section 10 of the New Mexico Constitution, the exclusionary rule extends to probation revocation proceedings. In so holding, the court explained:
The New Mexico Supreme Court in [State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993),] distinguished its rationale for application of the exclusionary rule from that of the United States Supreme Court. While the United States Supreme Court held that the purpose of the exclusionary rule is to deter police misconduct, the New Mexico Supreme Court has held that the focus of the exclusionary rule “is to effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.”
...
Accordingly, our Supreme Court in Gutierrez emphasizes that our state constitution focuses on the constitutional [privacy] rights of individuals; thus, the exclusionary rule is not a “mere judicial remedy” for unconstitutionally seized evidence.... Application of the exclusionary rule to proba-
Marquart, 945 P.2d at 1031. Notably, the Marquart court concluded that the exclusionary rule applies even where the evidence is seized by an officer who is unaware of the probationer‘s status.
In State ex rel Juvenile Dep‘t of Multnomah County v. Rogers, 314 Or. 114, 836 P.2d 127 (1992), the Oregon Supreme Court held that, under its state constitution, the exclusionary rule applied to probation revocation proceedings. In doing so, the Court distinguished the underlying purpose of the Fourth Amendment with that of its state constitution as follows:
“[U]nlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under
Article I, section 9 [of the Oregon Constitution] have been based on the personal right to be free from an unlawful search and seizure.” Thus, when the government violates an individual‘sArticle I, section 9 , rights by conducting an unreasonable search or seizure in obtaining evidence, the individual‘s state constitutional right to be secure against that unlawful search or seizure is protected “through the sanction of [the] suppression of evidence.” This court has consistently reaffirmed that personal rights underlie the Oregon exclusionary rule.
Id. at 129-30 (citing, inter alia, State v. Tanner, 304 Or. 312, 745 P.2d 757, 761 (1987) (noting Oregon Supreme Court “identified privacy as the principal interest protected against unlawful searches“)). The court further concluded that application of the exclusionary rule is not limited to criminal prosecutions, and that the petitioner, who had been on probation but was recommitted to the custody of the state, had a liberty interest that was “sufficiently analogous to the liberty interest at stake in traditional criminal prosecutions that the reasons for the sanction of suppression of evidence are equally applicable.” Id. at 130.
In State v. Lampman, 45 Wash.App. 228, 724 P.2d 1092 (1986), the Washington Court of Appeals acknowledged that
Guided by this emphasis on the right to privacy, we hold that
article 1, section 7 requires application of the exclusionary rule, without exception, to probation revocation proceedings. The exclusionary rule, underarticle 1, section 7 , is a remedy for a violation of an individual‘s right to privacy. If a probationer‘s right to privacy is violated, the exclusionary rulе should be invoked regardless of the particular proceeding involved. A probationer, however, has a diminished expectation of privacy, which, in effect, means a diminished right of privacy.7 That diminished expectation or right of privacy is reflected in the warrantless search excepted [sic] that Washington courts apply to reasonable searches of probationers. The standard for determining whether a warrantless search of a probationer is reasonable is whether the police or probation officer has a well-founded suspicion that a probation violation has occurred.
The determination of whether a probationer‘s right to privacy has been violated is dependent, then, on the nature of the search conducted and is not dependent on the nature of the proceeding in which the fruits of the search are to be admitted.
Appellant also cites Mason v. State, 838 S.W.2d 657, 659 (Tex. Ct. App. 1992) (recognizing that “[e]vidence that is obtained as a result of an illegal search and seizure is inadmissible over objection in a probation revocation hearing“), and State v. Dodd, 419 So.2d 333 (Fla. 1982) (holding that the exclusionary rule embodied in the search and seizure provision of the state constitution applies in probation revocation proceedings).
The Commonwealth, in its brief, cites a number of decisions in which state courts have concluded that evidence seized in violation of the Fourth Amendment is admissible at probation and parole revocation proceedings under their state constitutions. In Connecticut v. Foster, 258 Conn. 501, 782 A.2d 98 (Conn. 2001), the Connecticut Supreme Court considered several factors, similar to those set forth in Edmunds, to determine whether its state constitution affords greater protection than the federal constitution to a probationer who was subjected to a warrantless search of his home. The court first opined that the history of Connecticut‘s exclusionary rule did not support its application in parole and probation revocation proceedings, as, “[u]ntil the United States Supreme Court‘s decision in Mapp v. Ohio, Connecticut courts did not exclude unconstitutionally seized evidence.” 782 A.2d at 100. The Foster court further noted that its precedent did not support extending the exclusionary rule to parole and probation revocation proceedings because “[t]he purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim. . . . Instead, the rule‘s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Id. at 101 (quoting Payne v. Robinson, 207 Conn. 565, 541 A.2d 504 (1988)). In this regard, the court emphasized that there was no evidence that the police officers who conducted the search were aware that the defendant was on probation.
The Commonwealth also cites Georgia v. Thackston, 289 Ga. 412, 716 S.E.2d 517 (2011), wherein the Georgia Supreme Court declined to apply the exclusionary rule to probation proceedings based on its conclusion that such application “would achieve only marginal deterrent effects and would significantly alter and affect the proper administration of the probation system in this state.” Id. at 520.
Finally, the Commonwealth relies on Massachusetts v. Olsen, 405 Mass. 491, 541 N.E.2d 1003 (1989). In Olsen, the Massachusetts Supreme Court likewise refused to apply the exclusionary rule to a probation revocation proceeding on the ground that exclusion of reliable, but illegally obtained, evidence “would provide at most only marginal additional deterrence against police misconduct.” Id. at 1005.8 Like the Connecticut Supreme Court in Foster, the court in Olsen specifically left open “the question whether the police officer‘s knowledge of the probationer‘s status would compel a different result. Olsen, 541 N.E.2d at 1006.
Some states have determined that the exclusionary rule applies to parole or probation proceedings only in certain circumstances. For example, the Supreme Court of Virginia, in Logan v. Commonwealth, 279 Va. 288, 688 S.E.2d 275 (2010), held that the exclusionary rule applies tо revocation proceedings only where the defendant demonstrates bad faith on behalf of the police officer involved. To meet this burden, “the evidence must show that the officer making the search was motivated by bias, personal animus, a desire to harass, a conscious intent to circumvent the law, or a similar improper motive.” Id. at 278; see also State v. Turner, 257 Kan. 19, 891 P.2d 317, 323 (1995) (generally concluding that the exclusionary rule does not apply to probation revocation proceedings, but opining “there may be instances where the illegal acts of police officers, in the totality of the circumstances, are so egregious that the need for their deterrence outweighs the court‘s need for information“); People v. Ressin, 620 P.2d 717, 721 (Colo. 1980) (in the absence of evidence that law enforcement officers “knowingly engaged in a pretext arrest and exploratory search of the defendant because of his probationary status,” or engaged in a course of harassment or other egregious misconduct, the exclusionary rule does not apply to probation revocation proceedings); State v. Sears, 553 P.2d 907, 914 (Alaska 1976) (holding that probation and parole revocation hearings are not criminal proceedings such that the state exclusionary rule applies, but noting that police misconduct which shocks the conscience may lead to invocation of the exclusionary rule).
Our review of the decisions of our sister states reveals that those courts which refuse to apply the exclusionary rule to parole and probation proceedings construe the exclusionary rule as a judicially created remedy intended to safeguard Fourth Amendment rights through deterrence, and have concluded that application of the rule would only marginally serve their respective constitutions’ primary interest of deterrence. In contrast, those courts which view the primary purpose of the exclusionary rule as protecting individual privacy interests have concluded that the exclusionary rule is applicable to parole and probation revocation proceedings. In light of this Court‘s long-standing interpretation of
D. Policy considerations
The final prong of an Edmunds analysis is an examination of the relevant policy considerations at stake, particularly those of state and local concern in our Commonwealth. Appellant first contends that apрlying the exclusionary rule to parole and probation proceedings under
In rеsponse to Appellant‘s arguments, the Commonwealth argues that “the Pennsylvania Constitution does not recognize any more privacy protection than the Federal constitution with regard to probationers and parolees,” and submits that “the exclusionary rule, as it applies to criminal proceedings in the Commonwealth, provides a strong deterrent from any misbehavior on the part of parole and probation agents.” Commonwealth‘s Brief at 25-26 (citing Pickron, supra). The Commonwealth also emphasizes that “parole is viewed as a favor that is bestowed upon offenders who are likely to be law abiding citizens if given the chance at early release,” and suggests that application of the exclusionary rule in the instant case in particular would “fly in the face of the goals of probation and parole.” Id. at 31-32. The Commonwealth additionally posits that applying the exclusionary rule to probation revocation proceedings could negatively affect public safety, contending that, if Appellant had been found to be in possession of a weapon, it would have been “reckless” to exclude evidence of the weapon in a revocation proceeding. Id. at 32. Finally, the Commonwealth maintains that applying the exclusionary rule to both criminal proceedings and revocation proceedings would eliminate the ability of probation and parole
While this Court appreciates the policy arguments made by the Commonwealth, as well as those considered by our sister states,9 upon review, we conclude that the policy interests in this Commonwealth weigh more strongly in favor of applying the exclusionary rule to parole and probation proceedings. As noted above, pursuant to
(a) General rule.—Officers are in a supervisory relationship with their offenders. The purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public.
(b) Searches and seizures authorized.—
(1) Officers and, where they are responsible for the supervision of county offenders, State parole agents may search the person and property of offenders in accordance with the provisions of this section.
...
(2) (iii) Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or
section 8 of Article I of the Constitution of Pennsylvania .(c) Effect of violation.—No violation of this section shall constitute an independent ground for suppression of evidence in any probation and parole or criminal proceeding.
(d) Grounds for personal search.—
(1) A personal search of an offender may be conducted by an officer;
(i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision;
***
(2) A property search may be conducted by an officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.
(3) Prior approval of a supervisor shall be obtained for a property search absent exigent circumstances. No prior approval shall be required for a personal search.
(4) A written report of every property search conducted without prior approval shall be prepared by the officer who conducted the search and filed in the offender‘s case record. The exigent circumstances shall be stated in the report.
We agree with Appellant‘s suggestion that applying the exclusionary rule to probationers and parolees under
With regard to the Commonwealth‘s suggestion that application of the exclusionary rule to parole and probation revocation proceedings will “strip” probation and parole authorities of the ability to enforce the terms and conditions of an individual‘s probation or parole, Commonwealth‘s Brief at 33, this Court addressed a similar argument in Wilson. In Wilson, the appellant was convicted of, inter alia, persons not to possess firearms, and sentenced to 2½ to 5 years incarceration, followed by 3 years probation. As a condition of probation, the triаl court authorized warrantless, suspicionless searches of the appellant‘s residence for weapons. The appellant challenged the propriety of the condition allowing random searches, arguing that the condition violated his rights under both the Fourth Amendment and
Although this Court based its holding in Wilson on the statutory language at issue, as opposed to the parties’ constitutional arguments, our reasoning in Wilson answers the Commonwealth‘s present argument that its ability to enforce the terms of an individual‘s probation or parole effectively outweighs the recognized privacy rights of a probationer or parolee. As we stated in Williams, in deciding whether a warrantless search by a parole officer conducted pursuant to a parolee‘s signed parole agreement authorizing warrantless searches could survive constitutional scrutiny, we “must balance the governmental interests involved in granting parole and supervising parolees with that interest of the private individual, i.e., the parolee, which has been affected by the governmental action.” Williams, 692 A.2d at 1035.11 Thus, although we have suggested that a parolee has “a more narrowly protected privacy interest than that afforded a free individual,” id. at 1036, we have recognized that the government‘s interest in enforcing the terms of parole and probation cannot entirely displace a parolee‘s protected privacy rights.
Finally, we conclude that application of the exclusionary rule to revocation proceedings is in accord with this Court‘s consistent and repeated emphasis that the primary purpose of the exclusionary rule under
III. Conclusion
As it is undisputed that there was no reasonable suspicion for the parole officer‘s warrantless search of Appellant, we hold that, pursuant to
Justices Baer, Donohue, Dougherty and Wecht join the opinion.
Chief Justice Saylor files a dissenting opinion.
CHIEF JUSTICE SAYLOR, Dissenting
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
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 emphasizе that
From my point of view, the failure to remediatе 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 was imposed on Pennsylvania under federal constitutional doctrine after a prolonged period of Commonwealth-level rejection, see
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 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
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
151 A.3d 608
John SIMMONS, Appellant
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee
No. 13 EAP 2016
Supreme Court of Pennsylvania.
January 19, 2017
Notes
That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not be granted.
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.