COMMONWEALTH of Pennsylvania, Appellee, v. Louis R. EDMUNDS, Appellant.
Supreme Court of Pennsylvania.
Submitted March 6, 1990. Decided Feb. 4, 1991.
586 A.2d 887
374
Jeffrey P. Shender, Defender Ass‘n of Philadelphia, Theodore Simon, American Civil Liberties Union, Philadelphia, for amici curiae.
John J. Driscoll, Dist. Atty., William C. Gallishen, Asst. Dist. Atty., Greensburg, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
CAPPY, Justice.
I. HISTORY OF THE CASE
The issue presented to this court is whether Pennsylvania should adopt the “good faith” exception to the exclusionary rule as articulated by the United States Supreme Court in the case of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We conclude that a “good faith” exception to the exclusionary rule would frustrate the guarantees embodied in
The defendant in the instant case was found guilty after a non-jury trial on August 18, 1987 of criminal conspiracy,
The trial court held that the search warrant failed to establish probable cause that the marijuana would be at the location to be searched on the date it was issued. The trial court found that the warrant failed to set forth with specificity the date upon which the anonymous informants observed the marijuana. See, Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973). However, the trial court went on to deny the defendant‘s motion to suppress the marijuana. Applying the rationale of Leon, the trial court looked beyond the four corners of the affidavit, in order to establish that the officers executing the warrant acted in “good faith” in relying upon the warrant to conduct the search. In reaching this conclusion the trial court also decided that Leon permitted the court to undercut the language of
The Superior Court in a divided panel decision, opinion by Wieand J., dissent by Popovich J., affirmed the judgment of the trial court, specifically relying upon the decision of the United States Supreme Court in Leon. Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988). Allocatur was granted by this Court.
The pertinent facts can be briefly summarized as follows. On August 5, 1985 State Police Trooper Michael Deise obtained a warrant from a district magistrate to search a white corrugated building and curtilage on the property of the defendant. The warrant on its face also included the defendant‘s residence as part of the property to be searched; however, the Commonwealth now concedes that probable cause did not properly exist for the search of the residence. As the affidavit of probable cause is central to our decision, we will set it forth in full:
On the date of August 4, 1985, this affiant Michael D. Deise, Penna. State Police, was in contact by telephone with two anonymous Males who were and are members of the community where Louis R. Edmunds resides. Both anonymous males advised the affiant that while chеcking out familiar hunting areas off Rte. 31, east of Jones Mills and along the south side of Rte. 31. (sic) These men observed growing marijuana near a white corrugated building approximately 20 × 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that Louis R. Edmunds lived there. Edmund‘s description being that of a white male in his middle thirties and he lived at the aforementioned location.
On the 5th of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Rte. 31 entrance and observed a mail box with “Edmunds 228” printed on it.
After obtaining the warrant from the local magistrate, Trooper Deise, accompanied by three other troopers, served the warrant upon the defendant at his residence. Though he did not place the dеfendant under arrest at this time, the trooper did advise him of his Miranda rights, and had him read the warrant. The trooper also explained to the defen-
The defendant acknowledged that he owned the land in question, but stated that he leased the white corrugated building to a Thomas Beacon. The defendant, followed by the trooper, went to the second floor of his residence to obtain a copy of the lease to demonstrate that the building was in fact leased to Mr. Beacon. Trooper Deise followed the defendant to ensure that he did not obtain a weapon or otherwise endanger the officers. While accompanying the defendant to the second floor, the trooper noticed near the top of the stairs four (4) large transparent plastic bags containing what appeared to be marijuana. Based upon this discovery the trooper placed the defendant under arrest.
After producing the lease which indicated that the white corrugated building was in fact leased to Thomas Beacon, the defendant accompanied the troopers to the building, which was approximately one-quarter of a mile away, up a steep mountainous terrain, on a separate parcel of property owned by Edmunds. The record is devoid of evidencе that there was marijuana growing outside the corrugated building.2 The defendant unlocked the door of the white building and entered with the troopers. Inside the building the troopers discovered seventeen (17) growing marijuana plants, along with gardening implements, high-wattage lights, and a watering system. The marijuana was seized and the charges as recited above were brought against the defendant.
Prior to trial the defendant moved to suppress the marijuana seized in his residence, the marijuana found growing in the white corrugated building, as well as statements made by defendant Edmunds. A suppression hearing was
Recognizing that the affidavit of probable cause was deficient on its face, the trial court granted the request of the district attorney to convene a supplemental suppression hearing, which occurred on April 21, 1986. The express purpose of this hearing was to allow the district attorney to provide oral supplementation of the facts set forth in the written affidavit and warrant, in order to establish a “good faith” exception to the exclusionary rule under the auspices of Leon. The Commonwealth thus introduced evidence that the two informаnts had observed the marijuana on August 4, 1986, and that such date had been related to District Justice Tlumac prior to the issuance of the warrant, although it was not contained in the affidavit of probable cause or the warrant itself.
Trooper Deise and District Justice Tlumac each offered testimony consistent with that position. However, the testimony of District Justice Tlumac was somewhat ambivalent. She testified that Trooper Deise appeared in her office on August 5, 1986, and related his conversation with the two anonymous informants. She stated that Trooper Deise thereafter dictated the affidavit, which she typed verbatim. She then prepared and issued the search warrant. When asked whether Trooper Deise had indicated that the events in question had occurred the preceding day, District Justice Tlumac testified as follows: “And I felt with knowing Officer Deise over a period of fifteen, twenty years and had countless search warrants, and they were always fresh, that apparently he wouldn‘t (sic) bring information that just occurred, that was so fresh. The question wouldn‘t have
Upon the close of the supplemental suppression hearing, the trial court found that, strictly adhering to
The trial court went on to reason, however, that the facial invalidity of the warrant did not necessitate the exclusion of the evidence. On the basis of testimony offered by the district attorney at the supplemental suppression hearing, the trial court applied the federal test of Leon, and held that where the officer acts in “good faith” reliance upon the District Justice‘s determination of probable cause, the evidence seized will not be excluded at trial, regardless of the warrant‘s defects.
The trial court further concluded that the trooper, being reasonably well trained, believed the warrant to be valid because it had been issued by a neutral magistrate. Therefore, the trial court concluded that the trooper acted in “good faith” in executing the warrant, and determined that the federal Leon rule permitted the evidence to be introduced, despite the fact that the affidavit was defective and failed to establish probable cause under Pennsylvania law.
The Superior Court adopted the reasoning of the trial court, and went on to hold that
We are not at liberty to ignore the Leon issue as it has been injected into the case by the trial court, and expressly affirmed by the Superior Court. Both lower courts have acknowledged, correctly, that
The sole question in this case, therefore, is whether the Constitution of Pennsylvania incorporates a “good faith” exception to the exclusionary rule, which permits the introduction of evidence seized where probable cause is lacking on the face of the warrant.
Put in other terms, the question is whether the federal Leon test circumvents the acknowledged deficiencies under Pennsylvania law, and prevents the suppression of evidence seized pursuant to an invalid search warrant. For the reasons that follow, we conclude that it does not.
Our starting point must be the decision of the United States Supreme Court in Leon. In Leon, the Supreme Court in 1984 departed from a long history of exclusionary rule jurisprudence dating back to Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court in Leon concluded that the
In Leon, police officers in Burbank, California, had initiated a drug investigation after receiving a tip from a confidential informant that large quantities of cocaine and methaqualone were being sold from a residence. The informant had indicated that he witnessed a sale of methaqualone approximately five months earlier. The Burbank police set up a surveillance of three residences, and observed known drug offenders, including Leon, arriving in automobiles аnd leaving with small packages. Leon 468 U.S. at 901-902, 104 S.Ct. at 3409-3410. The officers also observed certain of the suspects boarding separate flights for Miami. Id. at 902, 104 S.Ct. at 3409.
Based upon these and other observations, the Burbank police prepared an affidavit and obtained a search warrant from a Superior Court judge. A search of the suspects’ residences and automobiles uncovered large quantities of cocaine and methaqualone. Id. at 902, 104 S.Ct. at 3409.
After being indicted in federal court, the respondents moved to suppress the evidence. The district court agreed that the affidavit was insufficient to establish probable cause. First, the observations of the informant had been made six months earlier, creating a staleness problem. Second, there was no basis for establishing the reliability or credibility of the informant, who had no track-record with respect to providing reliable information. Moreover, the police investigation “neither cured the staleness nor corrob-
The Court of Appeals in Leon affirmed, rejecting the government‘s invitation to recognize a good faith exception to the exclusionary rule. The United States Supreme Court reversed, in a 6-3 decision.
Justice White, writing for the majority in Leon, first indicated that the exclusionary rule was not a “necessary corollary of the Fourth Amendment.” 468 U.S. at 905, 104 S.Ct. at 3411. Although Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) and Mapp v. Ohio, supra, had suggested that the exclusion of illegally seized evidence was part-and-parcel of the 4th Amendment‘s guaranty, the Leon Court took the position that the exclusionary rule operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id., quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).
Justice White went on to conclude that the issue of whether the exclusionary rule should be imposed in a particular case “must be resolved by weighing the costs and benefits” of precluding such evidence from the prosecution‘s case. Leon, 468 U.S. at 906-907, 104 S.Ct. at 3411-3412. On the costs side of the analysis, Justice White declared that the exclusionary rule incurs “substantial social costs” in terms of “imped(ing) unacceptably the truthfinding functions of judge and jury.” Id. at 907, 104 S.Ct. at 3412 quoting United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980). As a result, Justice White noted that “some guilty defendants may go
On the benefits side of the analysis, Justice White indicated that the sole purpose of the exclusionary rule under the 4th Amendment was to “deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916, 104 S.Ct. at 3417. Given this goal, Justice White concluded that there was no reason to presume that judges or magistrates would be more inclined to “ignore or subvert” the 4th Amendment if evidence seized pursuant to a defective warrant were admissible. The majority wrote: “Although there are assertions that some magistrates become rubber stamps for the police and others may be unable effectively to screen police conduct ... we are not convinced that this is a problem of major proportions.” 468 U.S. at 916 n. 14, 104 S.Ct. at 3417 n. 14 (citations omitted).
The Court in Leon found that the argument that the exclusionary rule “deters future inadequate presentations” by police officers or prevents “magistrate shopping” was “speculative“. Id. at 918, 104 S.Ct. at 3418. Cоnsequently, the Fourth Amendment was not served by excluding improperly seized evidence, except on rare occasions. Wrote the Court:
In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate‘s responsibility to determine whether the officer‘s allegations establish probable cause and, if so, to issue a warrant comporting in form with requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate‘s probable cause determination or his judgment that the form of the warrant is technically sufficient.... Penalizing the officer for the magistrate‘s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. 468 U.S. at 920-921, 104 S.Ct. at 3419.
The Leon majority therefore concluded that, where a police officer is acting in objective good faith, based upon a search warrant duly issued by a neutral magistrate or
Thus, the Leon Court concluded that the drugs obtained through a defective search warrant, unsupported by probable cause, were nonetheless admissible as evidence without controverting the 4th Amendment. Leon, 468 U.S. at 925-926, 104 S.Ct. at 3421-3422.4
The U.S. Suрreme Court subsequently broadened the good-faith exception to the exclusionary rule, in the recent case of Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). In Krull, the Court held that a good-faith exception to the exclusionary rule permits the introduction of evidence obtained by an officer in reliance upon a statute, even where that statute is thereafter determined to be unconstitutional. Cf. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (previously indicating that the use of such evidence violated the 4th Amendment).
We must now determine whether the good-faith exception to the exclusionary rule is properly part of the jurisprudence of this Commonwealth, by virtue of
III. FACTORS TO CONSIDER IN UNDERTAKING PENNSYLVANIA CONSTITUTIONAL ANALYSIS
This Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).
As Mr. Chief Justice Nix aptly stated in Sell, the federal constitution establishes certain minimum levels which are “equally applicable to the [analogous] state constitutional provision.” Id. 504 Pa. at 63, 470 A.2d at 466, quoting, Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973). However, each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution. Sell, 504 Pa. at 63, 470 A.2d at 467.5
The United States Supreme Court has repeatedly affirmed that the states are not only free to, but also encour-
The past two decades have witnessed a strong resurgence of independent state constitutional analysis, in Pennsylvania and elsewhere. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982); Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga.L.Rev. 165 (1984); Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex.L.Rev. 1141 (1985); Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex.L.Rev. 1081 (1985); Brennan, Symposium on the Revolution in State Constitutional Law, 13 Vt.L.Rev. 11 (1988).
Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees,” Commonwealth v. Tarbert 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.
The recent focus on the “New Federalism”6 has emphasized the importance of state constitutions with respect to individual rights and criminal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution.7 The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely upon Pennsylvania jurisprudence. Accordingly, as a general rule it is important that litigants brief and analyze at least the following four factors:
- text of the Pennsylvania constitutional provision;
- history of the provision, including Pennsylvania case-law;
- related case-law from other states;
- policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority,
IV. ANALYSIS
A. Text
The text of
Security from Searches and Seizures
Section 8. 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 seizе 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.
Although the wording of the Pennsylvania Constitution is similar in language to the
B. History
We have made reference, on repeated occasions, to the unique history of
Perhaps the extent of the untapped history of the Pennsylvania Constitution should be underscored. Pennsylvania‘s Constitution was adopted on September 28, 1776, a full ten years prior to the ratification of the U.S. Constitution. Like the constitutions of Virginia, New Jersey, Maryland, and most of the original 13 Colonies, Pennsylvania‘s Constitution was drafted in the midst of the American Revolution, as the first overt expression of independence from the British Crown. See W. Adams, The First American Constitutions at 61 (1980). The Pennsylvania Constitution was therefore meant to reduce to writing a deep history of unwritten legal and moral codes which had guided the colonists from the beginning of William Penn‘s charter in 1681. See White, Commentaries on the Constitution of Pennsylvania (1907). Unlike the Bill of Rights of the United States Constitution which emerged as a later addendum in 1791, the Declaration of Rights in the Pennsylvania Constitution was an organic part of the state‘s original constitution of 1776, and appeared (not coincidentally) first in that document.
Thus, contrary to the popular misconception that state constitutions are somehow patterned after the United States Constitution, the reverse is true. The federal Bill of Rights borrowed heavily from the Declarations of Rights
With respect to
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 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.
See Buckalew, An Examination of the Constitution of Pennsylvania at 13 (1883). The above provision was reworded at the time the Pennsylvania Constitution was revised extensively in 1790, and reappeared as Article 1, Section 8. The modern version of that provision has remained untouched for two hundred years, with the exception of the words “subscribed to by the affiant,” which were added by the Constitutional Convention of 1873. Id.
Moreover, as this Court has stated repeatedly in interpreting
The history of
This reinterpretation differs from the way the exclusionary rule has evolved in Pennsylvania since the decision of Mapp v. Ohio in 1961 and represents a shift in judicial philosophy from the decisions of the United States Supreme Court dating back to Weeks v. United States.
Like many of its sister states, Pennsylvania did not adopt an exclusionary rule until the United States Supreme Court‘s decision in Mapp required it to do so. See, Elkins v. U.S., 364 U.S. 206, 225, 80 S.Ct. 1437, 1448, 4 L.Ed.2d 1669 (1960). However, at the time the exclusionary rule was embraced in Pennsylvania, we clearly viewed it as a constitutional mandate. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963) (interpreting Mapp to require the exclusion of illegally seized evidence as “an essential part of both the 4th and 14th Amendments,“) Id. at 64, 190 A.2d at 309, quoting, Mapp, 367 U.S. at 657, 81 S.Ct. at 1693. This interpretation was in keeping with a long line of federal cases, beginning with Weeks in 1914, which viewed the exclusionary rule as a necessary corrolary to the prohibition against unreasonable searches and seizures.10
During the first decade after Mapp, our decisions in Pennsylvania tended to parallel the cases interpreting the
In Mapp v. Ohio, Justice Clark stated that the exclusionary rule was “an essential part of both the Fourth and the Fourteenth Amendments.” 367 U.S. at 657, 81 S.Ct. at 1692. To hold otherwise, wrote the Court in Mapp, would be “to grant the right but in reality to withhold its privilege and enjoyment.” Id. at 656, 81 S.Ct. at 1692.
As the late Justice Potter Stewart explained in an exhaustive examination of the origin of the exclusionary rule in the Columbia Law Review, the “proscriptions and guarantees in the (Bill of Rights) were intended to create legal rights and duties.” 83 Col.L.Rev. 1368, 1384. Although the
Fourth Amendment (like most of the Bill of Rights) did not specifically set forth sanctions for violations, “(t)he primary responsibility for enforcing the Constitution‘s limits on government, at least since the time of Marbury v. Madison, [5 U.S. (1 Cranch.) 137, 2 L.Ed. 60 (1803)], has been vested in the judicial branch.” Id. at 1384. Thus, Justice Stewart concluded as a matter of history, that “the exclusion of unconstitutionally obtained evidence is not a constitutional right, but a constitutional remedy,” without which the4th Amendment would be reduced to a hollow promise. Id. at 1384 (emphasis in original).
From DeJohn forward, a steady line of case-law has evolved under the Pennsylvania Constitution, making clear that
As Mr. Justice Flaherty noted in Denoncourt, supra, in echoing the wisdom of Justice Brandeis over 60 years ago: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness ... They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Id. 504 Pa. at 199, 470 A.2d at 948-49, quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
Most recently, in Melilli, this Court cited with approval the decision of the Superior Court in Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319, 496 A.2d 1143 (1985), holding that
Thus, the exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of
The linch-pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause. Commonwealth v. Chandler [505 Pa. 113, 477 A.2d 851], supra. It is designed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates from dictatorial and tyrannical rule by the state, and preserves the concept of democracy that assures the freedom of its citizens. This concept is second to none in its importance in delineating the dignity of the individual living in a free society. Id. 513 Pa. at 127, 518 A.2d at 1191-92.
Whether the United States Supreme Court has determined that the exclusionary rule does not advance the
C. Related Case-Law From Other States
A number of states other than Pennsylvania have confronted the issue of whether to apply a “good faith” exception to the exclusionary rule, under their own constitutions, in the wake of Leon.
The highest courts of at least two states—Arkansas and Missouri—have seemingly embraced the good faith exception under their own constitutions. See Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987); State v. Brown, 708 S.W.2d 140 (Mo.1986) (en banc). Intermediary appellate courts in at least four other states—Indiana, Kansas, Maryland and Louisiana—have indicated their acceptance of the “good faith” exception. See, Mers v. State, 482 N.E.2d 778 (Ind.Ct.App.1985); State v. Huber, 10 Kan.App.2d 560, 704 P.2d 1004 (1985); Howell v. State, 60 Md.App. 463, 483 A.2d 780 (1984). State v. Martin, 487 So.2d 1295 (La.App.3d Cir.), writ denied 491 So.2d 25 (La.1986). In virtually all of those states embracing the “good-faith” exception under their own constitutions, however, the reasoning is a simple affirmation of the logic of Leon, with little additional state constitutional analysis.11
A mere scorecard of those states which have accepted and rejeсted Leon is certainly not dispositive of the issue in Pennsylvania. However, the logic of certain of those opinions bears upon our analysis under the
In this respect, we draw support from other states which have declined to adopt a “good faith” exception, particularly New Jersey, Connecticut and North Carolina. In State v. Novembrino, supra, the New Jersey Supreme Court found that the “good faith” exception to the exclusionary rule was inconsistent with the
The exclusionary rule, by virtue of its consistent application over the past twenty-five years, has become an integral element of our state-constitutional guarantee that search warrants will not issue without probable cause. Its function is not merely to deter police misconduct. The rule also serves as the indispensable mechanism for vindicating the constitutional right to be free from unreasonable searches. Id. 519 A.2d at 856.
Similarly, the Connecticut Supreme Court—which most recently rejected the good faith exception on August 7, 1990—concluded that the purpose of the exclusionary rule under
More directly on point, the North Carolina Supreme Court in State v. Carter, supra, rejected the “good faith” exception to the exclusionary rule, noting the importance of the privacy rights flowing from the search and seizure provision in the
The exclusionary sanction is indispensable to give effect to the constitutional principles prohibiting unreasonable search and seizure. We are persuaded that the
exclusionary rule is the only effective bulwark against governmental disregard for constitutionally protected privacy rights. Equally of importance in our reasoning, we adhere to the rule for the sake of maintaining the integrity of the judicial branch of government. Id. 370 S.E.2d at 559.
We similarly conclude that, given the strong right of privacy which inheres in
D. Policy Considerations
We recognize that, in analyzing any state constitutional provision, it is necessary to go beyond the bare text and history of that provision as it was drafted 200 years ago, and consider its application within the modern scheme of Pennsylvania jurisprudence. An assessment of various policy considerations, however, only supports our conclusion that the good faith exception to the exclusionary rule would be inconsistent with the jurisprudence surrounding
First, such a rule would effectively negate the judicially created mandate reflected in the Pennsylvania Rules of Criminal Procedure, in
(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(b) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (a).
In Milliken, a police officer had obtained a warrant to search the defendant‘s home for evidence relating to a murder, based upon an informant‘s tip. The affidavit of probable cause failed to set forth sufficient facts to establish the “reliability” of the informant, under the prevailing Aguilar-Spinelli test, rendering the warrant defective. At the suppression hearing, however, the police officer testified that he had given additional sworn oral testimony to the magistrate at the time the warrant was issued, not reduced to writing, which established the informant‘s reliability. The magistrate admitted that his memory was “dimmed” by the fact the proceeding was “some time ago,” but essentially corroborated the officer‘s story.
This Court in Milliken rejected the contention that
Recognizing this “troublesome” dilemma, this Court in a thoughtful opinion written by the late Mr. Justice Roberts (later Chief Justice Roberts) and joined by then Mr. Justice, now Chief Justice Nix, announced in Milliken that we would exercise our supervisory powers to formulate a rule of procedure mandating that “a sufficient written record (be) made contemporaneously with the issuance of search warrants.” Id., 450 Pa. at 315, 300 A.2d at 81. We held that since this rule was procedural in nature, it could not be applied retroactively to invalidate the warrant in Milliken‘s case. However, we made clear that: “After the effective date of the rule the determination of probable cause by a suppression hearing court and an appellate court upon review will be made only from the written record prepared contemporaneously with the issuance of the search warrant.” Id., 450 Pa. at 315 n. 3, 300 A.2d at 81 n. 3 (emphasis in original). The result was the adoption of
In the instant case, probable cause—as defined under Pennsylvania law—is lacking. Two lower courts have so held; we concur. Applying the federal Leon test would not only frustrate the procedural safeguards embodied in
We cannot countenance such a wide departure from the text and history of
A second policy consideration which bolsters our conclusion is that the underlying premise of Leon is still open to sеrious debate. Although it is clear that the exclusionary rule presents some cost to society, in allowing “some guilty defendants (to) go free,” Leon, 468 U.S. at 907, 104 S.Ct. at 3412, the extent of the costs are far from clear. A number of recent studies have indicated that the exclusion
A third policy consideration which compels our decisions is that, given the recent decision of the United States Supreme Court in U.S. v. Gates, supra, adopting a “totality of the circumstances test” in assessing probable cause, there is far less reason to adopt a “good faith” exception to the exclusionary rule. We have adopted Gates as a matter of Pennsylvania law in the recent case of Commonwealth
Finally, the dangers of allowing magistrates to serve as “rubber stamps” and of fostering “magistrate-shopping,” are evident under Leon. As the instant case illustrates, police officers and magistrates have historically worked closely together in this Commonwealth. Trooper Deise and District Justice Tlumac prepared the warrant аnd affidavit with Trooper Deise dictating the affidavit while the magistrate typed it verbatim.
There is no suggestion here that Trooper Deise and District Justice Tlumac acted other than in utmost “good faith” when preparing the warrant. Nevertheless, we are mindful of the fact that both state and federal interpretations of the
It must be remembered that a District Justice is not a member of the executive branch—the police—but a member of the judiciary. By falling within the judicial branch of government, the District Justice is thus charged with the responsibility of being the disinterested arbiter of disputes
This is not to say that we distrust our police or district justices; far from it. We, in fact, have no doubt that police officers and district justices in Pennsylvania are intelligent, committed and independent enough to carry out their duties under the schemе which has evolved over the past thirty years, in order to safeguard the rights of our citizens.
However, requiring “neutral and detached magistrates” furthers the twin aims of safeguarding privacy and assuring that no warrant shall issue but upon probable cause. As such, we see no reason to eliminate this requirement, for if we did, we would eviscerate the purpose of requiring warrants prior to searches. As one member of the Mississippi Supreme Court noted in a similar vein: “If it ain‘t broke, don‘t fix it.” Stringer v. State, supra, 491 So.2d at 850.
CONCLUSION
Thirty years ago, when the exclusionary rule was first introduced, police officers were perhaps plagued with ill-defined, unarticulated rules governing their conduct. However, the past thirty years have seen a gradual sharpening of the process, with police officers adapting well to the exclusionary rule. See Note, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U.Chi.L.Rev. 1016 (1987).19
In the instant case, the evidence seized from defendant Edmunds was the product of a constitutionally defective search warrant.
Justice Brandeis, in his eloquent dissent in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928), reminded us over a half-century ago:
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Id. at 485, 48 S.Ct. at 575.
Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under
PAPADAKOS, J., files a concurring opinion.
McDERMOTT, J., files a dissenting opinion.
PAPADAKOS, Justice, concurring.
I am compelled to concur in the result because
The majority correctly quotes this court‘s prior pronouncement on the subject:
“After the effective date of the rule the determination of probable cause by a suppression hearing court and an appellate court upon review will be made only from the written record prepared contemporaneously with the issuance of the search warrant.”
Commonwealth v. Milliken, 450 Pa. 310, 314, 300 A.2d 78, 81 (1973), quoted by the majority opinion at p. 405.
In view of the clear, unequivocal command of
Were the rule not so absolute on its face, I would gladly join McDERMOTT, J., in dissent, for my sympathies and reason lie in his expression of outrage in the result of cases such as this.
McDERMOTT, Justice, dissenting.
Today we have abandoned the twenty seven (27) year history of this Court‘s restrictive use of the exclusionary rule to only those instances where its application would deter misconduct by law enforcement authorities. Now that we have ignored that history and have decidеd to employ it even in cases where police officers have fulfilled their every obligation to protect the individual constitutional rights of citizens, I dissent.
Until this day we have dutifully followed the canons of the
It has generated a disbelief and a growing disrespect in the efficacy of law that stands mute in the presence of incontrovertible evi-
The United States Supreme Court has made it abundantly clear that suppression of evidence seized without probable cause is not a constitutional right. Id. at 906, 104 S.Ct. at
The United States Supreme Court has made it equally clear that suppression of evidence seized without probable cause is mandated to contain police action. Leon, 468 U.S. at 916, 104 S.Ct. at 3417. Likewise, we have approved the suppression of evidence only where it will have the benefit of deterring similar police misconduct in the future. Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979); Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973); Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); and Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963).4
In interpreting our
In Commonwealth ex rel. Wilson v. Rundle, supra, the defendant, in a habeas corpus petition, contended that the admission into evidence at his trial of $100.00 bills in U.S. currency and their serial numbers, seized from his person and hotel room in Las Vegas without a search warrant, was improper and that he should be awarded a new trial. The defendant‘s judgment of sentence had become final prior to the Mapp decision, and therefore the Court was obligated to address whether Mapp should be applied retrospectively.
In deciding the issue, the Court stated that “we must understand the basic purpose in the mandate of the court in Mapp.” The Court answered this question by citing Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960): “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Rundle, 412 Pa. at 118, 194 A.2d at 148. The Court continued that “This rule of exclusion is essentially a rule of evidence, even though of constitutional dimensions. In excluding illegally obtained evidence, the purpose is not to exclude such evidence because it is testimonially untrustworthy or lacking in reliability but to discourage police officials from conduct in violation of the Constitution.” Id., 412 Pa. at 120, 194 A.2d at 148. The Court concluded that to apply the exclusionary rule retrospectively to the case would not
In Commonwealth v. Corley, supra, this Court refused to employ the exclusionary rule to cases where a citizen makes an arrest and search because, “the exclusionary rule is designed to prevent, not to repair, and is aimed at official misconduct, it would be a wholly improper extension to apply it here, as a remedy for private conduct.” Id. 507 Pa. at 551, 491 A.2d at 834. In Commonwealth v. Brown, supra, we held that where evidence is the “fruit” of evidence obtained as a result of illegal police activity, but it “would have been discovered in the course of a lawfully conducted investigation, no purpose is served in applying the exclusionary rule,” because the initial taint did not effect the reliability of the evidence and excluding the evidence would not discourage unlawful police practices. Id. 470 Pa. at 284, 368 A.2d at 631.
Most recently, in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) we held that a pen register device could not be installed unless probable cause to do so was established. We concluded that evidence seized by the installation of pen registers without probable cause, even though the police reasonably relied upon the Federal standard,6 should nevertheless be suppressed. We explicitly did not disagree with the Leon decision. Instead, we determined that the evidence was appropriately suppressed because the judge who issued the order to install the pen registers7 never considered whether probable cause existed and thereby “wholly abandoned his judicial role,” a situation “envisioned” by Leon as worthy of suppression. Id., 521 Pa. at 420, 555 A.2d at 1262.
I would affirm the Superior Court.
586 A.2d 909
In re J.S.
Appeal of PHILADELPHIA COUNTY OFFICE OF MENTAL HEALTH AND MENTAL RETARDATION.
Supreme Court of Pennsylvania.
Submitted Oct. 26, 1990.
Decided Feb. 6, 1991.
Notes
Pa.R. of Crim.P. 2003 provides in relevant part:
(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(b) At any hearing on a motion for the return or suppression of evidence, or for the suppression of the fruits of the evidence obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (a).
Rule 2003 was adopted following this Court‘s decision in Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). A fuller discussion of Rule 2003 and the Milliken case follows at pages 901-02, infra.
One of those social costs has been the breakdown of the deterrent effect of the criminal law. “[O]ur preoccupation with restriction on police activity has become so great that an impression circulates that the chief end of the criminal law is to prevent invasions by police rather than invasions by criminals. Unquestionably, this preoccupation has lead to the release of patently guilty criminals and thereby weakened the deterrent effect of the criminal law.” Fleming, Of Crimes and Rights, 150, 151 (1978).In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986), this Court recently adopted the “totality of the circumstances” analysis set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), with respect to the establishment of probable cause. This approach allows the court to assess all of the facts and circumstances set forth in the affidavit—including the “veracity” and “basis of knowledge” of the informant—and make a common sense determination whether the magistrate had a “substantial basis for... conclud[ing] that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332; Gray, 509 Pa. at 484, 503 A.2d at 925. Nothing in the “totality of the circumstances” test, however, allows us to jettison
Moreover, we note that, even absent the omission of a time frame in the affidavit and warrant, there are other problems with the probable cause determination, which raise serious questions under Gates and Gray. First, the affidavit specifically states that the hunters observed marijuana growing “near” the white corrugated building in a “cleared off area,” and this led them to look inside the building. However, the record is devoid of any testimony that marijuana plants were observed “near” the building, at the time the trooper flew over the building in a helicopter. This factual inconsistency should have raised serious questions concerning the reliability of the informants, under the “veracity of the information” prong of Gates since the one fact which would have directly suggested criminal conduct (i.e. marijuana growing near the building) could not be confirmed by the trooper. The only facts which the trooper did confirm were the existence of the building, the existence of a mailbox bearing the name “Edmunds“, and the fact that the informants knew what marijuana looked like. Even under the flexible Gates standard, we believe that these facts are thin. The facts confirmed by the trooper are equally consistent with innocence as with guilt. See, Leon, 468 U.S. at 903 n. 2, 104 S.Ct. at 3410 n. 2. (“Some details given tended to corroborate, maybe, the reliability of the informant‘s information about the previous transaction, but if it is not a stale transaction, it comes awfully close to it; and all the other material I think is as consistent with innocence as it is with guilt“). Compare, Gates and Gray, where the facts corroborated by the police were significantly more indicative of criminal conduct.
See also Dripps, Living with Leon, 95 Yale L.J. 906, 918–922 (1986).The 4th Amendment of the United States Constitution reads as follows:
Amendment IV
“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.”
Each search warrant shall be signed and sealed by the issuing authority and shall:
(a) Specify the date and time of issuance;
(b) Identify specifically the property to be seized;
(c) Name or describe with particularity the person or place to be searched; ...
(g) Certify that the issuing authority has found probable cause based upon the facts sworn to or affirmed before the issuing authority by written affidavit(s) attached to the warrant. (emphasis added).
Each application for a search warrant shall be by written affidavit(s) signed and sworn to or affirmed before an issuing authority, which affidavit(s) shall:
(a) State the name and department, agency, or address of the affiant;
(b) Identify specifically the items or property to be searched for and seized;
(c) Name or describe with particularity the person or place to be searched;
(d) Identify the owner, occupant, or possessor of the place to be searched;
(e) Specify or describe the crime which has been or is being committed;
(f) Set forth specifically the facts and circumstances which form the basis for affiant‘s conclusion that there is probable cause to believe that the items or property identified are evidence or the fruit of a crime, or are contraband, or are otherwise unlawfully possessed
or subject to seizure, and that these items or property are located on the particular person or at the particular place described (emphasis added).
When
For example, in Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984), where a magistrate did not sign a warrant form indicating that he had made a determination of probable cause, this Court found that the error was one of constitutional dimension, since it went to the very issue of probable cause. Therefore, evidence seized pursuant to the defective warrant was properly suppressed.
In the instant case, as in Chandler, the defect was clearly one of constitutional proportions, going to the lack of probable cause on the face of the affidavit and search warrant. More significantly, we are not here excluding evidence simply because a technical violation of a Rule has occurred; unlike Mason, probable cause is lacking on the face of the warrant. We reaffirm the principle of Mason that not all technical violations of the Rules of Criminal Procedure—standing alone—automatically require exclusion of evidence. However, where a Rule is violated and the end result is a lack of probable cause or some other fundamental defect in the warrant, nothing in Mason is
meant to suggest that such a constitutional infirmity may be overlooked.
See Nardulli, The Societal Costs of the Exclusionary Rule: An Empirical Assessment, 1983 A.B. Found. Research J. 585. In this study of nine mid-sized counties in Illinois, Michigan and Pennsylvania, the author found that motions to suppress physical evidence were filed in fewer than five percent (5%) of the 7,500 cases studied, and such motions were successful in only seven-tenths of a percent (0.7%) of all cases. Id. at 596.
A 1979 study prepared by the General Accounting Office at the request of Congress reported that only four-tenths of a percent (0.4%) of all cases declined for prosecution by federal prosecutors were declined primarily because of illegal search problems. See, Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979). Restated in terms of all arrests, the study shows that only two-tenths of a percent (0.2%) of all felony arrests are declined for prosecution because of potential exclusionary rule problems. See Davies, A Hard Loоk at What We Know (and Still Need to Learn) About the Costs of the Exclusionary Rule: The NIJ Study and Other Studies of Lost Arrests, 1983 A.B. Found. Research J. 611, 635. See, also, Duke, Making Leon Worse, 95 Yale L.J. 1405 (1986).