Commonwealth v. Ardestani ( 1999 )

NIGRO, Justice,

concurring.

I agree with the majority that Appellants are entitled to the retroactive application of this Court’s holding in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), under the general rule of retroactivity outlined in Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).¹ However, I write separately to note that, under current Pennsylvania law, the question of whether Brion should be retroactively applied to the instant cases does not end with an analysis under Cabeza.

Although Cabeza holds that retroactivity is the general rule, this Court has observed that a sweeping rule of retroactive application is not universally justified. Blackwell v. Commonwealth, 527 Pa. 172, 589 A.2d 1094 (1991). In Blackwell, this Court reaffirmed Cabeza’s general rule of retroactivity but observed that the decision of whether to apply a new rule retroactively or prospectively is a function of judicial discretion informed by three considerations: (1) the purpose to be served by the new rule; (2) the extent of the reliance by law enforcement authorities on the old standard; and (3) the effect on the administration of justice by the retroactive application of the new standard. Id. at 182-83, 589 A.2d at 1099 (citing Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969)). The majority finds that this tripartite retroactivity analysis is “unnecessary as our holding in Cabeza has never been overruled and continues to be the most prudent approach to follow in the criminal arena.” While this statement may be true, it does not negate the fact that Pennsylvania cases, including those in the criminal arena, have continued to apply this tripartite analysis to questions of retroactivity in the wake of Cabeza. See, e.g., Commonwealth v. Melilli 521 Pa. 405, 414, 555 A.2d 1254, 1259 (1989) (decision holding that Article I, Section 8 requires search warrant prior to use of pen registers is to be applied retroactively under both Cabeza and tripartite retroactivity analysis); Commonwealth v. McFeely, 509 Pa. 394, 400, 502 A.2d 167, 170 (1985); Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597, 601-03 (1996); see also Blackwell, 527 Pa. at 183 n. 6, 589 A.2d at 1099 n. 6 (although Desist v. United States, supra involved a criminal prosecution, the criteria applied in resolving the question of retroactive or prospective application of a new rule is no different in civil litigation). Thus, contrary to the position of the majority, I believe current Pennsylvania law mandates that this tripartite analysis be considered when determining whether a decision announcing a new rule should be granted retroactive effect.²

When applied to the instant cases, however, I do not believe that the three factors of the Blackwell retroactivity analysis militate in favor of granting Brion prospective effect only.

First, I believe that the purpose of the Brion rule runs in favor of retroactively applying Brion to the instant cases. Although the Pennsylvania Constitution does not prohibit prospective effect for decisions expounding new constitutional rules, it is nonetheless significant that the decision in Brion involves a fundamental issue of constitutional dimensions. See Blackwell, 527 Pa. at 187, 589 A.2d at 1101 (fact that decision involves fundamental issue of constitutional dimensions distinguishes it from cases granting prospective effect to decisions with no constitutional implications); Commonwealth v. Minarik, 493 Pa. 573, 579, 427 A.2d 623, 626 (1981) (new rules of criminal procedure do not generally apply retroactively when the circumstance motivating a new rule is not one of constitutional proportion). The purpose of the rule in Brion, which requires judicial authorization prior to police use of wire interceptions in the home of a non-consenting individual, is to safeguard the important state constitutional right against unreasonable searches and seizures and to protect citizens’ heightened right to privacy in their homes. See Commonwealth v. DeBlase, 542 Pa. 22, 39, 665 A.2d 427, 435 (1995) (issue of constitutional dimension raised in Brion posed a complex analysis of the nature and reach of the fundamental right to privacy protected by Article I, Section 8). As such, retroactive application of Brion allows this Court to resolve cases before it on direct review in light of, and in conformity with, its best understanding of governing constitutional principles.³

Furthermore, given the convoluted history and constitutional uncertainty surrounding the issue finally resolved by Brion, I am not persuaded by the Commonwealth’s argument under the second prong that law enforcement authorities’ reliance on a practice which did not require a court-approved search warrant was so clearly justified as to compel prospective application.

The holding in Brion came on the heels of a somewhat disjointed and tortured history of cases wavering on whether, and under what circumstances, the Pennsylvania Constitution allows the police to direct a consenting informant to electronically record an individual’s conversations and transmit them back to the police pursuant to section 5704(2)(ii) of the Wiretap Act. See 18 Pa.C.S. § 5704(2)(ii). Seven years before this Court’s decision in Brion, the Superior Court decided Commonwealth v. Schaeffer, holding for the first time that Article I, Section 8 required the police to obtain judicial authorization in the form of a search warrant based on probable cause before sending a confidential informant into a suspect’s home to electronically record his conversations pursuant to § 5740(2)(ii) of the Wiretap Act. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), aff'd per curiam by divided court, 539 Pa. 272, 652 A.2d 294 (1994).

However, several subsequent decisions, while not directly overruling Schaeffer, appeared to challenge its vitality. While the Commonwealth’s appeal to this Court in Schaeffer was pending, this Court decided Commonwealth v. Blystone, which involved a state constitutional challenge to the warrantless, unilaterally consensual interception of outside-the-home conversations made pursuant to § 5704(2)(ii) of the Wiretap Act. Blystone, 519 Pa. 450, 461, 549 A.2d 81, 86 (1988), aff'd on other grounds, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). In rejecting Blystone’s argument, this Court held that the challenged conversations were properly admissible and did not violate a defendant’s constitutional rights under Article I, Section 8.⁴ Id. at 466, 549 A.2d at 88. Shortly after Blystone, in early 1989, this Court entered a per curiam order in Commonwealth v. Barone, reversing the Superior Court’s decision which had found in-home tape recordings subject to suppression, by simply citing to Blystone. Barone, 520 Pa. 118, 552 A.2d 1048. (1989).

Also in 1989, a panel of the Superior Court decided Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989), rev’d, 539 Pa. 256, 652 A.2d 287 (1994), finding that Article I, Section 8 did not require the police to obtain prior judicial approval before sending an informant into a suspect’s home to record his conversations on the basis that Blystone, in validating a warrantless one-party consensual body wiretap under § 5704(2)(ii), had overruled Schaeffer sub silentio. Brion, 552 A.2d at 1107.

In December of 1994, this Court’s decision in Brion finally ended the uncertainty surrounding police use of in-home body wires by definitively holding that Article I, Section 8 requires police to first obtain a judicial determination of probable cause before engaging in a unilaterally consensual interception of oral communications in a suspect’s home pursuant to § 5704(2)(ii) of the Wiretap Act. Brion, 539 Pa. at 261, 652 A.2d at 289. Given this history, I do not believe that the second prong of the Blackwell analysis weighs in favor of affording Brion prospective effect only.

Finally, in terms of the third prong of the Blackwell analysis, the retroactive application of Brion will have a limited effect on the administration of justice, given that its application is restricted to the instant cases and only those cases pending on direct appeal at the time of our decision in Brion which properly preserved the issue. Cf. Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997) (third prong of Blackwell retroactivity analysis favored prospective application since retroactive application of decision at issue would place large burden on courts). Cases involving unchallenged interceptions, which are now final, will not be upset or affected by the retroactive application of Brion. See also Commonwealth v. Fowler, 550 Pa. 152, 703 A.2d 1027, 1033 (1997) (Brion is not to be applied retroactively to cases on collateral appeal).

Thus, I find that the three factors of the retroactivity analysis do not weigh in favor of prospective application overall, and therefore, find no reason to abandon the general rule of retroactivity in Cabeza. I therefore join in the result reached by the majority that the rule articulated in Brion is to be retroactively applied to all cases which properly preserved the issue and which were on direct appeal when this Court issued its decision in Brion. Since both Ardestani and Metts fit this criteria for retroactive application, both Appellants are entitled to receive the benefit of the principle announced in Brion, which compels suppression of the intercepted conversations.

1 . As the majority notes, this Court described the general rule of retroactivity in Cabeza as follows:

where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the question is properly preserved at all stages of adjudication up to and including any direct appeal.

Cabeza, 503 Pa. at 233, 469 A.2d at 148.

2 . I also question the wisdom of conducting this tripartite analysis when the issue involves the limited retroactive application of a new criminal rule of constitutional proportion only to those cases pending on direct appeal at the time of the decision. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (re-examining retroactivity analysis and holding that, to be consistent with norms of constitutional adjudication, decisions announcing new constitutional rules for conduct in criminal prosecution are to be applied retroactively to all cases pending on direct appeal). This Court, however, is not bound by the United States Supreme Court's decisions on the retroactivity of a new federal constitutional rule and under Pennsylvania law, as it now stands, the Blackwell analysis must be applied to resolve claims of retroactivity. See Blackwell, 527 Pa. at 181, 589 A.2d at 1098 (question of whether a state court decision announcing a new rule of law is to be applied retroactively or prospectively is squarely within province of state courts).

3 . Both the Commonwealth and Justice Castille’s dissent rely on this Court’s decision in Commonwealth v. Miller, 490 Pa. 457, 473, 417 A.2d 128, 136 (1980), to support their position that the purpose of the Brion rule, to amplify the exclusionary rule and not to cure a defect in the criminal trial affecting the verdict’s reliability, weighs in favor of prospective application of Brion. In Miller, this Court, in examining the purpose prong of the retroactivity analysis, stated that where the

major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function ... the new rule has been given complete retroactive effect. Conversely, the same standard strongly supports prospectivity for a decision amplifying the exclusionary rule, the primary purpose of which is to deter unlawful police conduct.

Id. at 473, 417 A.2d at 136. The Superior Court also employed this language to support its finding that applying Brion retroactively to the present cases would not serve the deterrent purpose of the exclusionary rule since the police conduct at issue had not clearly been declared unconstitutional when it occurred. However, Miller expressly relied on federal constitutional standards, whereas Brion relied exclusively on state constitutional standards. Id. at 472 n. 11, 417 A.2d at 136 n. 11. In Commonwealth v. Edmunds, this Court held that the purpose underlying the exclusionary rule in Pennsylvania, which includes the safeguarding of the right to privacy embodied in Article I, Section 8, is distinct from the purpose underlying the exclusionary rule under the Fourth Amendment, which is solely to deter unlawful police conduct. Edmunds, 526 Pa. 374, 395-99, 586 A.2d 887, 897-99 (1991). Given that the language in Miller does not fully envision the purposes of the exclusionary rule as embodied in our state constitution, coupled with this Court’s ardent protection of the fundamental right to privacy in one's home, I am not persuaded that this argument defeats retroactive application of Brion to these cases.

4 . Although the interception at issue in Blystone did not occur in the defendant’s residence, this Court did not specifically address the issue of the significance of locality in this context. See also Commonwealth v. Rodriguez, 519 Pa. 415, 418, 548 A.2d 1211, 1213 (1988)(upholding interceptions of oral communications made pursuant to § 5704(2)(ii) of the Wiretap Act in the face of challenges under Article I, Section 8, by citing Blystone but without specifically discussing the issue of interceptions made in a private residence).