Commonwealth v. Johnson

COMMONWEALTH OF PENNSYLVANIA, Appellant v. RICHARD ALLEN JOHNSON, Appellee

J-34-2013

No. 67 MAP 2012

SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

SUBMITTED: April 25, 2013

DECIDED: February 18, 2014

Appeal from the order of Superior Court

entered November 29, 2011 at No. 381

MDA 2011 which affirmed/vacated in part

and remanded the order of the Luzerne

County Court of Common Pleas, Criminal

Division, dated January 24, 2011 at No.

CP-40-CR-0000947-2010

DISSENTING OPINION

MR. JUSTICE McCAFFERY

The question before the Court is whether evidence found during a search incident to arrest is admissible at trial under Article I, Section 8 of the Pennsylvania Constitution even though the warrant for the arrest was subsequently found to have already been served and thus was no longer valid. In Herring v. United States, 555 U.S. 135 (2009), the United States Supreme Court held that when police mistakes in the execution of an expired arrest warrant are the result of negligence, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule should not apply. I would hold that Article I, Section 8 does not require greater privacy protection than the high Court afforded in Herring. Accordingly, I dissent.

Fourth Amendment Jurisprudence

One hundred years ago, in Weeks v. United States, 232 U.S. 383 (1914), the United States Supreme Court held for the first time that, in a federal prosecution, the Fourth Amendment barred the use of evidence that had been obtained via a warrantless search. Several decades later, in Wolf v. Colorado, 338 US 25, 33 (1949), the high Court expressly limited Weeks's holding to federal prosecutions, stating that "in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure." However, only twelve years after Wolf was decided, it was overruled in Mapp v. Ohio, 367 U.S. 643, 644-45 (1961) (holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"). Twenty-three years after Mapp was decided, the United States Supreme Court limited the scope of the exclusionary rule, holding that evidence obtained by police officers acting in reasonable reliance on a search warrant subsequently found to be unsupported by probable cause was not barred from use at trial. U.S. v. Leon, 468 U.S. 897, 900 (1984). In promulgating this "good faith exception" to the exclusionary rule, the high Court held as follows:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

Id. at 926.

The Leon Court explained that it had re-examined the purposes of the exclusionary rule and concluded that its primary purpose is to deter police misconduct, i.e., "willful, or at the very least negligent, [police] conduct which has deprived thedefendant of some right." Id. at 916, 919, 926 (citations omitted). When the police have not engaged in any misconduct, but rather have acted with objectively reasonable reliance on a search warrant that is subsequently determined to be invalid, then the benefits of applying the exclusionary rule are "marginal or nonexistent." Id. at 922. Under such circumstances, the Leon Court held, the costs of applying the exclusionary rule outweigh the benefits, and, pursuant to the good faith exception, determined that the rule is inapplicable. Id. at 926.

The U.S. Supreme Court employed a similar balancing approach to decide a recent case with facts and circumstances closely resembling the case currently before us. See Herring, supra. The defendant-petitioner was arrested on a warrant, and a search incident to arrest revealed drugs on his person and an illegally possessed firearm in his motor vehicle. Very shortly after the arrest, the warrant was found to have been recalled months earlier, and thus it was invalid. Id. at 137-38. After the defendant-petitioner was indicted for illegal possession of the drugs and the firearm, he moved to suppress the evidence, contending that his arrest was illegal under the Fourth Amendment because the warrant had been rescinded. The district court, adopting the magistrate judge's recommendation, denied the suppression motion, concluding that the arresting officers had acted in a good faith belief that the warrant was still outstanding. The Court of Appeals for the Eleventh Circuit affirmed, holding that the evidence was admissible under the good faith rule of Leon, supra. The Eleventh Circuit concluded that the arresting officers had not engaged in any wrongdoing or carelessness, and that the sheriff's office had acted only negligently, not deliberately or tactically, in failing to update the records regarding the warrant's rescission. Herring, supra at 138-39.

The high Court affirmed, reiterating that the exclusionary rule is a judicially created rule, not an individual right; is not a necessary consequence of a FourthAmendment violation; and applies only where it has the potential to result in the deterrence of future Fourth Amendment violations. Id. at 141. The high Court retained its focus on the deterrence of police misconduct: "evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id. at 143 (citations and internal quotation marks omitted). Recognizing that the cases that had given rise to the exclusionary rule involved intentional, flagrant, patently unconstitutional conduct, the high Court made clear that the "exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Id. at 144.

In applying these principles to the facts and circumstances of Herring, the high Court determined that the conduct of the law enforcement officers "was not so objectively culpable as to require exclusion [of the evidence]." Id. at 146. There was no evidence that record-keeping errors in the sheriff's office were routine or widespread; rather, the testimony suggested that such errors were rare. Id. at 147. Accordingly, the high Court held as follows: "[W]hen police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way'," and thus the exclusionary rule should not apply. Id. at 147-48 (citation omitted).

Pennsylvania Jurisprudence

Pre-Mapp

Pennsylvania was not quick to conclude that the exclusionary rule constituted an available remedy under -- much less an integral part of -- Article I, Section 8 of the Pennsylvania Constitution. Although the U.S. Supreme Court adopted the Fourth Amendment exclusionary rule in 1914, for more than four decades, we declined toadopt the exclusionary rule as a matter of state law.¹ For example, in Commonwealth v. Dabbierio, 138 A. 679, 681 (Pa. 1927), we recognized but explicitly rejected Weeks in upholding, under state constitutional law, the admission of evidence that had been obtained pursuant to a defective search warrant.² Rather than follow Weeks, the Dabbierio Court "[found itself] in more complete accord with ... McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260 [1927]." Dabbierio, supra at 681. In McGuire, supra at 260, six federal revenue agents, acting pursuant to a search warrant, seized several gallons of liquor from the defendant-appellant's premises, destroyed most of the liquor without legal authority, but retained two quarts as evidence. The defendant-appellant challenged the admissibility of that evidence, contending that, by destroying the seized liquor, the agents "lost the protection and authority conferred upon them by the search warrant," and thus rendered the seizure illegal under the Fourth Amendment. In denying this challenge, the high Court conceded that the destruction of the liquor was an illegal act, but declined to conclude that the seizure of the liquor or its use as evidence violated any constitutional immunities of the defendant. Id. at 260-61. The high Court reasoned as follows, reasoning with which our Dabbierio Court explicitly agreed:

Even if the officers were liable as trespassers abinitio, which we do not decide, we are concerned here not with their liability but with the interest of the government in securingthe benefit of the evidence seized, so far as may be possible without sacrifice of the immunities guaranteed by the Fourth and Fifth Amendments. A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule. The use by prosecuting officers of evidence illegally acquired by others does not necessarily violate the Constitution nor affect its admissibility.

McGuire, 273 U.S. at 260 (quoted in Dabbierio, 138 A. at 681).

Thus, even though the facts of Dabbierio much more closely resembled those of Weeks than those of McGuire, the Dabbierio Court found more persuasive the high Court's ruling in McGuire, which emphasized the interest of the government in securing evidence for and using evidence in criminal prosecutions. Privacy interests protected by the Pennsylvania Constitution did not prevail even though Dabbierio was decided under state constitutional law.

The Dabbierio decision was consistent with the common law rule, i.e., "the admissibility of evidence is not affected by the illegality of the means by which it was obtained." Commonwealth v. Chaitt, 112 A.2d 379, 381 (Pa. 1955); see also Commonwealth v. Connolly, 138 A. 682 (Pa. 1927) (in dicta, applying Dabbierio's holding); Commonwealth v....