Lead Opinion
OPINION
In this appeal arising in the suppression context, we consider Pennsylvania’s unique
Law enforcement officers suspected that Appellant may have co-perpetrated a violent rape-kidnapping. They sought samples of his DNA for comparison with material obtained from the victim and a vehicle used in the commission of the crimes. Detective Johnson, a member of a police sexual assault unit, prepared an affidavit in support of probable cause; secured a magistrate’s approval of a search warrant;
Appellant lodged a pretrial motion to suppress on the ground that the detective’s affidavit was insufficient to establish probable cause. See generally Kohl,
The motion apparently raised concerns on the prosecution’s part, as a decision was made to secure a second warrant. The strategy was to invoke the independent source doctrine as applied under Pennsylvania’s Article I, Section 8 jurisprudence, deriving from Mason. Under this rule, evidence tainted by illegal police conduct (such as an unlawful seizure) nevertheless may be admitted into evidence if the evidence can be fairly regarded as having an origin independent of the unlawful conduct. See Mason,
Another member of the police sexual assault unit, Detective Evans, was tasked with undertaking a probable-cause investigation to support a second search warrant. Detective Evans spoke with Detective Johnson, reviewed the existing case file and the victim’s medical records, conducted an inquiry into Appellant’s background, and interviewed one collateral witness. He then applied for and secured a second warrant, which was used to seize an additional sample of blood from Appellant.
In response, Appellant filed a second suppression motion. In it, he asserted that the evidence secured under the second warrant was not the product of an independent source. According to the motion, the “vast majority” of the information contained in Detective Evans’ affidavit derived from the information previously gathered by Detective Johnson. Appellant further highlighted that Detective Evans was commissioned in direct response to the defense’s first suppression motion. For these reasons, Appellant contended that the evidence “remains tainted by the original illegally seized evidence.”
Detective Evans testified at the hearing on the suppression motions. In the brief direct examination, he indicated that, although he had been a member of the sex assault squad, he did not participate in the original investigation of Appellant’s crimes. He explained that he had been tasked with securing a search warrant in March 2006, and, in preparation, he reviewed the reports in the case file, including medical records and crime laboratory reports;
On cross-examination, Detective Evans confirmed that he had reviewed the materials assembled by Detective Johnson and had spoken with him. See id. at 58-60, 64-65. He also acknowledged that he had reviewed the first warrant and affidavit of probable cause, see id. at 57, 61, but he again denied having relied upon the first warrant. See id. at 57. The detective conceded that he did not interview the
The suppression court denied Appellant’s motions. In relevant part, it ruled that, while Detective Johnson’s affidavit was insufficient to support a probable-cause determination, Detective Evans’ was adequate and unconnected with the first investigation. According to the court, Detective Evans’ affidavit “was a totally separate account of the facts evidence [sic] obtained in the investigation into the kidnapping and rape[,]” and “[n]o causal nexus existed between the blood test results obtained as a result of the first warrant and Detective Evans’ Affidavit of Probable Cause dated March 28, 2006.” Commonwealth v. Henderson, CC 200611250, slip op. at 4 (C.P. Allegheny, June 20, 2006). Thus, the suppression court determined that the independent source doctrine was satisfied.
Upon trial, Appellant was convicted of the charged offenses. An appeal ensued, in which the Superior Court affirmed in a memorandum opinion. In its analysis, the intermediate court relied on Commonwealth v. Smith,
We allowed a further discretionary appeal to consider whether the independent source doctrine validates a serial search warrant obtained from a second investigation conducted by a police officer from the same department. See Commonwealth v. Henderson,
Presently, Appellant maintains that the independent source doctrine cannot pertain, because the suppression record does not establish that Detective Evans’ investigation was “truly independent” of Detective Johnson’s. To the contrary, Appellant and his amici, the Pennsylvania Association of Criminal Defense Lawyers and the American Civil Liberties Union of Pennsylvania, regard the former as “wholly dependent” on the latter. Brief for Appellant at 11. In this respect, Appellant stresses that the detectives were members of the same sex assault unit; they conferred about the case; Detective Evans worked from the preexisting case file; and a substantial portion of Detective Evans’ affidavit overlaps with Detective Johnson’s. Accord Brief for Amicus Pa. Ass’n of Criminal Def. Lawyers at 15 (“A truly independent investigation does not occur when officers from the same police department as the officer who illegally secured the evidence in question secure a new warrant by reviewing the illegal warrant and the reports of the first officer and add a few new facts to the new warrant.”).
Appellant also questions the suppression court’s finding of the absence of any link between the incriminating DNA test results from the initial blood sample and the second government investigation, given that the prosecution was in possession of the highly incriminatory results at the time such inquiry commenced. Relatedly, he raises fairness concerns associated with the use of the independent source doctrine to sanction serial police investigations motivated by challenges to incriminating evidence obtained pursuant to facially deficient first warrants. To address such concerns, Appellant favors a rule dictating that a second investigation motivated by flaws in a preceding one cannot serve as an independent source, as well as a rebuttable presumption of such motivation arising from spin-off investigations ensuing upon the filing of suppression motions.
The arguments of Appellant and his am-ici underscore the high value placed by this Court on the Pennsylvania Constitution’s protection of individual privacy interests, as exemplified in such decisions as Commonwealth v. Edmunds,
Finally, Appellant regards the police conduct this case as most troublesome given the element of intrusiveness into the human body. See Commonwealth v. Martin,
What is at stake if the lower court’s opinion is permitted to stand is an absolute abrogation of a citizen’s expectation of privacy in his or her own person. Officers of this Commonwealth would be free to repeatedly extract blood from citizens, even though a prior search was found unconstitutional, correcting perceived defects in search warrants until a Constitutional level of probable cause has been demonstrated.
Brief for Appellant at 13.
The Commonwealth, for its part, does not contend that Detective Evans’ investigation meets the Melendez requirement of “true independence.” Rather, it advocates the application of a less exacting standard to circumstances that do not involve a knowing circumvention of a suspect’s constitutional rights through intentional police misconduct.
[Bjecause the record in the instant matter establishes that there was sufficient probable cause beyond the appellant’s DNA results upon which to seek a search warrant for appellant’s blood, be*803 cause the request for the second warrant was clearly not prompted by those results, because the magistrate did not issue the warrant based on those results, and because there was no police misconduct involved here, ... the DNA results obtained from a draw of the appellant’s blood were admissible under the independent source doctrine in conformity with Article 1, Section [8] of the Pennsylvania Constitution.
Id. at 39.
We begin with the acknowledgement that, from an original-intent frame of reference relative to Melendez, the independent-investigative-team requirement appears to have been intended to extend to the broader category of unlawful searches and seizures, and the requirement of true independence was to have meant just that. The architect of the rule made this plain enough in his dissent in the recent, divided Ruey decision. See Ruey,
The sincere intentions underlying the innovation are clear enough. As amply related by Appellant and his amici, there was a heartfelt desire to vindicate the privacy interests of Pennsylvania citizens against unlawful government conduct. While there is a difference between egregious police misconduct and lesser infractions, such as carelessness, incompleteness, and/or oversight, the ideals underlying the independent approach to Article I, Section 8 jurisprudence— that privacy is to be guarded jealously against unlawful government intrusions and the probable-cause requirement is not to be diluted — extend to the wider range of incursions.
Since, however, the independent source doctrine lies outside the terms of the Pennsylvania Constitution, the embellishments of Mason and Melendez represented a form of prophylactic judicial lawmaking, as was candidly acknowledged in Mason in the following terms:
It is axiomatic, of course, that once a judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires.
Mason,
Notably, for better or for worse, the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms. A ready example is the judicial rule that police were not to interrogate an arrestee for more than six hours after arrest unless the accused was brought before a neutral magistrate and arraigned, on pain of suppression of inculpatory statements attained in violation of the rule. See Commonwealth v. Davenport,
A similar weakening of the Melendez requirement of true independence can be seen in the present case. No one could seriously contend that Detective Johnson’s and Evans’ investigations were “truly independent” under a conventional understanding of those words, where the two conferred about the case and the latter worked directly from the case file previously maintained by the former.
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. Among other ways, this is manifested in the context of the independent source rule in the courts’ reluctance to put police in a worse position than they were in prior to an irregularity. See Brundidge,
In the present circumstances, we are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppres
Finally, we acknowledge the intrusiveness involved in the performance of a second blood draw occasioned by a defective first warrant. We note only that the need for the serial sample is also an unintended consequence of a previous departure from Fourth Amendment law, under which suppression would not have been required of results of the first DNA test. See Leon,
The order of the Superior Court is affirmed.
Notes
This matter was reassigned to this author.
. See generally Commonwealth v. Kohl,
. See generally Weeks v. United States,
.To this extent at least, the approach under the Pennsylvania Constitution overlaps with federal constitutional jurisprudence. In Murray v. United States,
. In this regard, the Melendez litmus differs from the federal approach, which focuses, more narrowly, on whether the decision to seek a warrant was prompted by something attained as a result of unlawful government conduct, and whether the approving magistrate had been informed of the improperly obtained information. See Murray,
. The record does not specifically indicate whether Detective Evans reviewed the DNA analysis of Appellant’s blood secured under the first warrant. See N.T., May 22, 2006, at 54-55. He did confirm that the crime lab reports he reviewed included analysis of blood secured from Appellant's codefendant, in which the codefendant was excluded as a contributor to samples recovered from the victim and the vehicle used in perpetration of the crimes. See id. at 55.
. Specifically, the following interchange occurred between defense counsel and Detective Evans on cross-examination:
Q. Now, you will agree with me, if you will, that the first nine paragraphs was all information that you got from Detective Johnson's previous investigations?
A. You said-the first nine you say.
Q. Up until the point where you say all the above information was documented and reported under the Pittsburgh Bureau of Police?
A. Yes, sir.
Q. So all that information was not obtained by you and that came from Detective Johnson’s investigation, am I right?
A. Yes.
N.T., May 22, 2006, at 60.
. In fact, Appellant filed his first motion to suppress two months before Detective Evans began his probable-cause investigation.
. Also not before us is the argument of ami-cus American Civil Liberties Union of Pennsylvania that the Commonwealth inappropriately introduced into evidence at trial the laboratory report from the first, invalid blood seizure rather than the second, valid one. See Brief for Amicus ACLU of Pa. at 6 n. 2, 8, 10-11.
. Mason involved an illegal police invasion into a private dwelling via the use of a battering ram. See Mason,
. Another example of an arena in which the Court has had great difficulty maintaining a stable independent state constitutional jurisprudence is the automobile search-and-seizure arena, as manifested by the divergent range of expressions of the Justices in Commonwealth v. Perry,
. The Commonwealth also never established with any certainty, one way or another, whether Detective Evans was aware of the incriminatory results of the DNA testing of the first blood sample obtained from Appellant. As Appellant and his amici argue, those results would have created a powerful incentive on the part of law enforcement to secure the second sample in the face of a deficient first warrant. Conversely, had the first sample excluded Appellant as a contributor relative to the crime-scene materials, it is difficult to conceive why the prosecution would pursue a second sample. Particularly given the incentives involved, and in the absence of any specific testimony on the point, on this record it is very difficult to credit the suppression court’s finding that the Commonwealth proved the absence of any causal nexus between the results of the first test and Detective Evans' affidavit of probable cause.
. See Mason,
Concurrence Opinion
concurring.
I join the learned Majority Opinion in its entirety. Where, as here, police act pursuant to a warrant and engage in no misconduct, the broad state constitutional dictum articulated in Commonwealth v. Melendez,
Mr. Justice Saylor’s restrained, candid and modest attempt to fashion state constitutional jurisprudence along principled lines ameliorates the lack of restraint in the Melendez Court’s fashioning a quasi-legislative rule that would govern cases and circumstances not then before us. I, for one, would be inclined to go farther and reexamine Melendez itself, since it was unsupported by a principled state constitutional analysis. See Commonwealth v. Russo,
In any event, I write separately primarily to respond to Madame Justice Todd’s Concurring Opinion. Justice Todd supports a reaffirmation and extension of the Melendez rule as stated to embrace factual circumstances such as those in the case sub judice, ie., cases, unlike Mason and Melendez, where there was no police misconduct.
Justice Saylor has very carefully accounted for the original intentions of the Melendez Court; the sincerity of those intentions; the nature of the constitutional rule there innovated (non-textual and prophylactic); the inherent difficulty with practical application of broadly stated prophylactic rules; the mischief that arises when courts try to force new facts to fit problematically-broad pronouncements, as occurred in the trial court here (and as is mirrored in Justice Todd’s concurrence); and the fact that any serious constitutional analysis must account for society’s interest in identifying and punishing wrongdoers as well as the value (protection of individual liberties) served by the prophylactic pronouncement that was the concern of the Melendez Court. The Majority could be far less kind to Mason and Melendez. The Majority could focus on: the absence of an Edmunds analysis in either case, indeed the absence of any authority but the apparent policy preferences of court majorities; the importance of judicial restraint before constitutionalizing evanescent preferences; and the fact that, to the extent Melendez purported to speak to circumstances not involving police misconduct, its prophylactic rule was, by definition, obiter dicta.
For its careful effort, the Majority Opinion is met with a concurrence accusing the Court of “choosing” to “radically” constrict the Melendez “rule,” and of “truncating” the rule, as envisioned by Melendez, “in a sweeping and prospective fashion.” Todd, J., concurring slip op. at 809-10. The irony in the accusations is striking, given the nature of the decision in Melendez.
The “truly independent police or investigative team” requirement at issue was proposed in the Concurring Opinion of Mr. Justice (later Chief Justice) Cappy in Mason, and his position was then “adopted” by a majority of the Melendez Court. Without any explanation, Melendez then applied this new rule retroactively to condemn police conduct that had occurred before the preference was constitutional-ized. Melendez,
And so, in addition to being applied retroactively to condemn the police in Melendez, the Melendez rule “was sweeping and prospective,” purporting to decide cases not then before the Court — like this one. In this respect, the independent-police-team-in-all-independent-source-cases innovation was unnecessary to the decision, improperly legislative in scope, and as overbroad and ill-informed (in that it did not perceive or discuss the circumstance here) as it was constitutionally unmoored. Whether one agrees with Melendez or not, it was a radical decision, which chose to remake existing constitutional law, chose to severely constrict the police and to condemn police conduct retroactively, and chose to attempt to govern future circumstances not then before the Court, as if the
Justice Todd’s Concurring Opinion also claims that the Majority’s “limitation” on Melendez is “wholly ill-advised and unwarranted.” Todd, J., concurring op. at 809. Notably, what was warranted here, at all times, was the conduct of the police. Judicial officers approved the warrants. The concurrence maintains that the “purpose of the Mason/Melendez rule of strict independence of investigative teams, was ... to ensure that, if such evidence is to be used by a court of this Commonwealth in a criminal trial, it has been thoroughly purged of the taint of the original violation of the rights secured by Article I, Section 8.” Todd, J., concurring op. at 813-14. To be clear, the “original violation,” as noted in Justice Todd’s concurring opinion, was not a police violation and there was no police misconduct here. A judicial officer erred, as judicial officers occasionally do, in assessing probable cause for the first warrant. That judicial error did not operate to taint the police “investigative team.” As the U.S. Supreme Court has recently noted:
It is one thing for the criminal “to go free because the constable has blundered.” People v. Before,242 N.Y. 13 , 21,150 N.E. 585 , 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs.
Davis v. United States, — U.S. -, -,
If the Magisterial District Judge had declined to issue the first search warrant here, the same police or investigative team would have been free to make use of what information it had, and then to simply refine the affidavit, or gather more evidence, and re-apply for a warrant.
The Majority notes that the Commonwealth does not argue that the second investigation and warrant here were “truly independent” of the first one, and reasons that no one could seriously contend otherwise “under a conventional understanding of those words.” Majority op. at 802, 804. I agree; thus, if the Melendez dicta were binding, reversal would be required. But, Melendez is not binding and cannot be. This is a case involving a brutal abduction and rape; two warrants issued by judicial officers, the second of which unquestionably was premised upon probable cause; and the seizure of blood (no knocking down doors); and no police misconduct. The notion that such a crime should be rendered non-prosecutable because the Melendez Court, not facing such facts, purported to constitutionalize a minority position from the U.S. Supreme Court concerning the Fourth Amendment which would require an independent police investigative team, as if it were a Pennsylvania state constitutional command, in all cases, without benefit of relevant argumentation or state constitutional analysis, is absurd. Nothing in the Pennsylvania constitutional tradition, which did not even recognize an exclusionary rule, requires this.
The judicially-fashioned exclusionary rule requires police to answer for their actual mistakes; the Majority Opinion here takes responsibility for an obvious judicial mistake in Melendez and mitigates the harm. I join the corrective effort.
. I have previously addressed this elemental point as follows:
I am particularly wary of novel expansions of Article I, § 8 that are unaccompanied by an Edmunds analysis. A novel and unexplained holding under Article I, § 8 is a practice that permits a jurisprudence of contrariness or, even worse, arbitrariness. Such an unexplained holding is at least as likely to be a mere expression of a Court majority’s personal disagreement with contrary Fourth Amendment jurisprudence, dressed in state constitutional garb in order to avoid correction by the United States Supreme Court, as it is to be an affirmative expression of what the state provision uniquely means and embraces. By previously requiring that novel state constitutional claims be considered in light of our actual experience with Article I, § 8 and with the experience of this Court and other courts with similar search and seizure questions, and with policy concerns "unique” to our jurisprudence, the Edmunds construct at least provides some semblance of a principled constitutional analysis of a particular issue. The inability to even begin to defend a novel holding pursuant to Edmunds, on the other hand, betrays a total disregard for the experience of other courts as well as for this Court’s own considered experience and, in my view, raises a presumption that the state constitutional holding is erroneous.
Commonwealth v. Shaw,
, Justice Todd notes that the independent source doctrine has been described by some as an "exception” to the exclusionary rule. See Todd, J., concurring op. at 811 n. 4, 813-14. Notably, the U.S. Supreme Court's decision in Murray v. United States,
Bearing silent fidelity to the dissenting view in Murray, both the Mason concurrence and the Melendez majority spoke of the independent source doctrine as an “exception” to the exclusionary rule. But, such an argumentative label puts the proverbial rabbit in the hat. The independent source doctrine does not involve an exclusionary rule "exception,” such as the good faith exception, but a question of taint from prior illegality, which implicates principles of independence and attenuation. It is not an “exception” to the exclusionary rule to admit untainted evidence; no rational application of an exclusionary rule would exclude untainted evidence. Indeed, viewed more fundamentally, it is the exclusionary rule that is a policy-based "exception” to bedrock rules of evidence. The independent source cases involve situations where the ex-
. In its "purging taint” discussion, the concurrence cites to Justice Marshall’s dissenting opinion in Murray as support for an independent police team requirement. Todd, J., concurring op. at 813-14. Notably, however, that position was expressed by Justice Marshall in terms of the Fourth Amendment's deterrence rationale. Indeed, in the sentence immediately preceding the quotation upon which Justice Todd relies, Justice Marshall argued that: "The strong Fourth Amendment interest in eliminating these incentives for illegal entry should cause this Court to scrutinize closely the application of the independent source exception to evidence obtained under the circumstances of the instant cases; respect for the constitutional guarantee requires a rule that does not undermine the deterrence function of the exclusionary rule.” Murray,
Although the independent police team requirement articulated by Justice Cappy in Mason obviously derives from Justice Marshall's Murray dissent, Justice Cappy notably did not cite that dissent, perhaps recognizing that Justice Marshall’s deterrence focus would undermine any claim that the rule he was proposing was unique to the Pennsylvania experience under Article I, Section 8.
. Clearly, this alternate fact pattern should be read in the context of the entire paragraph.
Concurrence Opinion
concurring.
I concur in the result reached by the majority, as I agree that the results of testing performed on the second sample of blood taken from Appellant’s body were, as the suppression court found, admissible. However, I cannot endorse the majority’s rationale in arriving at this result. The majority acknowledges that, in order for evidence to be admissible at a criminal trial under Article I, Section 8 of the Pennsylvania Constitution, the rule articulated by our Court in Commonwealth v. Mason,
In adopting a standard for the application of the independent source doctrine under Article 1, Section 8 for all cases in which police “malfeasance is not present,” Majority Opinion at 805, the majority supplants the Mason/Melendez rule with that set forth by the United States Supreme Court in Murray v. United States,
The proscription against unlawful searches and seizures, contained in Article 1, Section 8, is one of the foundational protections of individual human rights provided by the framers of our state Constitution, and is “meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.” Commonwealth v. Edmunds,
The primary purpose of the warrant requirement was to abolish ‘general warrants,’ which had been used by the British to conduct sweeping searches of residences and businesses, based upon generalized suspicions. Therefore, at the time the Pennsylvania Constitution was drafted in 1776, the issue of searches and seizures unsupported by probable cause was of utmost concern to the constitutional draftsmen.
Edmunds,
By contrast, the United States Supreme Court has embraced a different rationale for excluding evidence seized in violation of the individual privacy rights secured by the Fourth Amendment to the United States Constitution, which does not require the exclusion of such evidence in order “to redress the injury to the privacy of the search victim.” U.S. v. Calandra,
The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the*812 same, not a worse, position tha[n] they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.
Murray,
We utilized the Murray test in Commonwealth v. Brundidge,
In arriving at this conclusion, our Court recognized that if it were to decide the case based on Fourth Amendment law as articulated by Murray, suppression of the evidence would not be required. However, mindful that the protections of Article 1, Section 8 are applied not merely for the purpose of deterring police misconduct, but “also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause,” Mason,
Former Chief Justice, then Justice, Cap-py authored a joining concurrence in which he lauded the majority’s approach as “reining in” what he viewed, in the wake of Brundidge, as a potential “unfettered stampede” to use the independent source doctrine to contravene the clear purposes of Article I, Section 8 and our exclusionary rule. Id. at 572,
Justice Cappy expressed his belief that the independent source doctrine should be applied only in very narrow and limited
[T]he application of the “independent source doctrine” in a situation where the ‘independent source’ is not truly independent of both the tainted evidence itself and the officers involved in the initial illegal search will completely eviscerate the exclusionary rule, failing either to deter police misconduct or to protect individual privacy rights as required by Article I, Section 8 of the Pennsylvania Constitution.
Id. at 574,
It was this same concern for protecting the privacy interests of individuals in their persons and their homes that led this Court in Melendez to adopt Justice Gap-py’s suggested restriction on the use of the independent source doctrine under Article I, Section 8 to only those situations where the source “is truly independent.” Melendez,
The majority’s present restriction of this requirement to only the rare situations where the police have engaged in the most blatant type of misconduct significantly weakens this safeguard, since, as Justice Marshall has aptly observed:
When ... the same team of investigators is involved in both the first and second search, there is a significant danger that the “independence” of the source will in fact be illusory, and that the initial search will have affected the decision to obtain a warrant notwithstanding the officers’ subsequent assertions to the contrary. It is therefore crucial that the factual premise of the exception — complete independence — be clearly established before the exception can justify admission of the evidence.
Murray,
Although the majority posits it is presently necessary to abandon the Mason/Melendez rule because, in its estimation, enforcement in this case would potentially result in “the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his erimes,” Majority Opinion at 804-05, the record does not support this conclusion. As the majority recites, the trial court, applying the Mason/Melendez rule, found the evidence obtained pursuant to the second warrant to be admissible under the independent source doctrine as it was “independent from the tainted evidence and the investigative team” who obtained the first warrant. Trial Court Opinion, 6/20/06, at 5 (citing Melendez). I believe the evidence adduced at the suppression hearing, when viewed in a light most favorable to the Commonwealth as the prevailing party, supports the trial court’s finding in this regard.
Regarding the first prong of the application of the Mason/Melendez rule, which requires that the tainted evidence play no role in the investigative process which leads to the obtaining of the second search warrant, I discern nothing from the record to indicate that Appellant’s DNA test results obtained by the execution of the first warrant, in which Detective Evans did not participate, contaminated the investigative process which led to the issuance of the second warrant. As acknowledged by the majority, the record does not establish that Detective Evans had any awareness
With respect to the second prong of the Mason/Melendez rule, that the independent source be truly independent from thé police officers or investigative team who engaged in the illegal search, the record evidence, when viewed most favorably to the Commonwealth, supports the trial court’s conclusion that Detective Evans was not a member of the group of officers who initially investigated the victim’s assault, or that he played any other part in the investigation which led to the obtaining of the first search warrant. Indeed, at the time the first investigation was taking place, Detective Evans was doing “pre-employment polygraphs” for the Pittsburgh Police Department. N.T. Suppression Hearing, 5/22/06, at 53.
Additionally, and critically, there was no evidence of record suggesting that, as Detective Evans conducted his own investigation, Detective Johnson, or any other member of the original investigative team, supervised, coordinated, or collaborated with Detective Evans on the conduct of his investigation in any way. According to the testimony adduced under oath at the suppression hearing, Detective Evans’ sole contact with Detective Johnson regarding the investigation occurred when Detective Evans met with Assistant District Attorney Janet Necessary and Detective Johnson, and was told at that time to research and develop probable cause for a search warrant for Appellant’s blood. Detective Evans attested, under oath, that he did not review the first search warrant with Detective Johnson, nor was he informed of any problems with that warrant. Id. at 55-56, 58-59.
Although Detective Evans’ investigation quite naturally covered some of the same ground as Detective Johnson’s, the record supports the conclusion that he did not simply robotically reenact Detective Johnson’s efforts.
Under these circumstances, the second blood test results obtained through the execution of that warrant were admissible under the Mason/Melendez rule, just as the lower court concluded. This case, therefore, presents no justification to reassess this rule as the majority has done. Moreover, the majority does not merely “limit” the rule, as it suggests, but, rather, in my view, eviscerates it, which may lead to the very destruction of the exclusionary rule itself — an exceedingly perilous regression in the protection of individual rights which Justice Cappy expressly warned against in Mason. I am therefore compelled to concur only in the result reached by the majority in this matter.
. See Majority Opinion at 803 ("We begin with the acknowledgment that, from an original-intent frame of reference relative to Melendez, the independent-investigative-team requirement appears to have been intended to extend to the broader category of unlawful searches and seizures, and the requirement of true independence was to have meant just that.”).
. While I respectfully differ with the majority’s decision to abrogate our Court’s prior Melendez decision, I note that it is written with the usual erudition and thoughtfulness that is the hallmark of its author. As I explain herein, my difference with the majority's present decision to veer from the clear jurisprudential course illuminated by our Court in our prior Melendez decision is found
. This Pennsylvania constitutional provision guarantees:
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.
Pa. Const, art. I, § 8.
. The concurring opinion by Chief Justice Castille posits that this characterization of the independent source doctrine as an "exception” to the exclusionary rule is somehow erroneous. Concurring Opinion (Castille, CJ.) at 806-07 n. 2. I respectfully disagree. In a situation where evidence tainted by an illegal search is otherwise obtained by the police through a genuinely independent source, without violation of individual constitutional rights, the exclusionary rule will not operate to bar introduction of the evidence at a subsequent criminal trial; thus, in this sense, it is an exception to the application of the exclusionary rule. This characterization of the independent source doctrine as an exception to the exclusionary rule is hardly an aberration as it has been frequently utilized by other courts and recognized by scholarly commentators. See, e.g., U.S. v. Runyan,
. Although in his concurrence the Chief Justice highlights the fact that the Mason and Melendez Courts did not conduct a formal four-part "Edmunds analysis,” Concurring Opinion, (Castille, C.J.) at 807, the absence of this analysis does not, in my view, undermine the precedential strength of those cases or diminish the strength of the state constitutional analysis contained therein. In Edmunds itself we imposed no requirement on courts to follow that particular analytical framework in addressing questions regarding the scope and application of Article I, Section 8; rather we found it important (though not mandatory) that litigants brief these factors in cases implicating the Pennsylvania Constitution. See Edmunds,
. I do not suggest that the police committed any misconduct in executing the first search warrant in this case after the magistrate issued it; however, it is not disputed that this warrant lacked the constitutionally-mandated
Moreover, and respectfully, the situation present in the case at bar is not, as suggested by the Chief Justice in his concurrence, see Concurring Opinion (Castille, C J.) at 6, analogous to one in which a police officer applies for a warrant and the warrant application is denied by a magistrate for lack of probable cause, but the officer gathers additional information to augment the warrant application, reapplies for a search warrant, and a warrant supported by probable cause is then issued by the magistrate. In that circumstance, the police officer conducted no illegal search and obtained no evidence unlawfully but rather conducted the search only after probable cause existed for the issuance of a valid search warrant; hence the seizure of the evidence pursuant to that warrant is untainted by any prior constitutional violation and unquestionably lawful.
. In his concurrence, the Chief Justice postulates that the logic embodied in Justice Marshall’s dissent in Murray must be understood as founded on an exclusionary rule, the application of which is focused solely on deterring police misconduct — and, thus, should be read only in that context. See Concurring Opinion (Castille, C.J.) at 808 n. 3. I do not so narrowly cabin the quoted wisdom of that eminently learned jurist. Inasmuch as the fundamental truth of Justice Marshall’s observation is rooted in a common sense understanding of the influence of human observations on behavior, as the late Chief Justice Cappy recognized in Mason and Melendez, the requirement of strict independence of investigative teams from officers who conducted a prior illegal search and
. This latter requirement was never intended, as Appellant suggests, to necessitate barring an entire police department from conducting a subsequent independent investigation after a previous illegal search or seizure by some officers in that department; rather, it was intended to bar only those specific officers who participated in that search or seizure. See Mason,
. When we review a suppression ruling adverse to the defendant, we consider only the evidence presented by the Commonwealth, and the evidence of the defense which is un-contradicted when fairly read within the context of the entire record. Commonwealth v. Pruitt,
. The Mason/Melendez rule requires only that information which was obtained in a prior illegal search and seizure be kept independent of a subsequent effort to secure a warrant; thus, Detective Evans was not barred from utilizing information which Detective Johnson previously acquired in his investigation, and which was untainted by the illegal seizure of Appellant’s blood.