Commonwealth v. Jones

Justice TODD,

concurring.

I concur in the Majority Opinion insofar as I believe it reaches the correct legal result, namely, that sufficient probable cause existed for the magisterial district judge to issue a search warrant for the dormitory room jointly shared by Appellee and the decedent, Abdul Sesay, in order to confirm his identity as the shooting victim the police found lying dead on the street in Chester, Pennsylvania. Beyond this narrow agreement with the Majority, I write to make two additional points. First, I agree wholly with Chief Justice Castille’s observation in his Concurring Opinion that, although we did not grant allocatur to specifically address the issue of the correct standard of review to be utilized by appellate courts in reviewing a magistrate’s determination of probable cause of a search warrant, application of the proper standard of review by an appellate court is essential to its adjudicative function. I am in accord with his cogent discussion, and, presently, offer only a few additional observations on this subject. Second, I believe the limits of the use of a search warrant as an investigative tool to gather evidence, recognized by the United States Supreme Court as required by the Fourth Amendment to the United States Constitution, are worthy of further elaboration, and I do not agree with the Majority’s conclusion that the Superior Court improperly substituted its judgment for that of the police in the conduct of an investigation; rather, I conclude that the court was simply performing its proper duty of appellate review.

As the Majority has noted, and as Chief Justice Castille has amplified in his Concurring Opinion, there has been some difference in the language used by the United States Supreme Court and the language used by our Court to describe the proper standard of review an appellate court must utilize to review a magistrate’s determination of probable cause for the issuance of a search warrant. In its decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court stated that the magistrate’s probable cause determination should be paid “great deference by reviewing courts.” Id. at 236, 103 S.Ct. 2317 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). The Court, however, never explicitly provided a definition of the concept of “great deference” in either Gates or Spinelli. Although the Spinelli Court cited Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as the progenitor of the phrase “great deference,” see Spinelli, 393 U.S. at 419, 89 S.Ct. 584 (citing Jones at 270-71, 80 S.Ct. 725), I note that the Jones Court did not use this terminology anywhere in its opinion and, thus, likewise did not provide guidance as to the parameters of its scope. Importantly, though, the Supreme Court in Gates did not view its decision as announcing a new standard of appellate review but, rather, indicated it was merely reaffirming the “traditional standard for review of an issuing magistrate’s probable cause determination,” which is that a reviewing court should determine whether the facts in the affidavit showed that the magistrate had a “substantial basis for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.Ct. 2317 (citation and internal quotation marks omitted).

Subsequently, in the case of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Court again indicated that a magistrate’s determination should be afforded “great deference.” However, it also clearly established the limits of this concept by making abundantly plain that a reviewing court was not required to exhibit a degree of deference which would unduly constrain it in the performance of its duty to review the magistrate’s actions, holding:

Deference to the magistrate is not boundless. It is clear, first, that the deference accorded to a magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Second, the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police. A magistrate failing to manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application and who acts instead as an adjunct law enforcement officer cannot provide valid authorization for an otherwise unconstitutional search. Third, reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. Even if the warrant application was supported by more than a “bare bones” affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances, or because the form of the warrant was improper in some respect.

Leon, 468 U.S. at 914-15, 104 S.Ct. 3405 (internal quotation marks, citations and footnote omitted).

Our Court adopted the Gates “substantial basis” test in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), as the standard of review Pennsylvania appellate courts are to use in evaluating a challenge to the sufficiency of probable cause to support the issuance of a search warrant under Article I, Section 8 of the Pennsylvania Constitution; however, we did not, in that case, explicitly hold that a heightened or elevated degree of deference is due a magistrate’s legal determination of the existence of probable cause beyond what we normally afford all such legal determinations that we review.¹ Following Gray, when discussing the requisite level of deference to be afforded the magistrate’s determination by a reviewing court, our Court has, in the vast majority of our decisions, referred to it as simple “deference,” or “due deference.” See Torres, 564 Pa. at 96, 764 A.2d at 538 (“the reviewing court must accord deference to the issuing authority’s probable cause determination”); Commonwealth v. Baker, 532 Pa. 121, 127, 615 A.2d 23, 25 (1992) (“[Deference is to be accorded a magistrate’s finding of probable cause”); Commonwealth v. Jones, 506 Pa. 262, 270, 484 A.2d 1383, 1387 (1984) (same); Commonwealth v. Rega, 593 Pa. 659, 686, 933 A.2d 997, 1013 (2007) (“Due deference will be given to the conclusions of the issuing magistrate.”); Commonwealth v. Rompilla, 539 Pa. 499, 512, 653 A.2d 626, 632 (1995) (giving due deference to issuing magistrate when conducting review of search warrant affidavit); Commonwealth v. Moss, 518 Pa. 337, 344, 543 A.2d 514, 518 (1988) (“Warrant applications must be read in a common sense, non-technical way, ‘giving due deference to the conclusions of the issuing magistrate.’ ” (quoting Commonwealth v. Council, 491 Pa. 434, 444, 421 A.2d 623, 628 (1980))).²

There have been a few occasions since our decision in Gray, however, where our Court has used language differing from that used in the precedent discussed above. In Commonwealth v. Weidenmoyer, 518 Pa. 2, 9, 539 A.2d 1291, 1294 (1988), our Court, citing to Gates, stated that the determination of the issuing authority should be given “great deference,” and in Torres, our Court also used the term “substantial deference” after initially articulating the standard of review as simple deference.³ However, these two isolated references, in and of themselves, do not alter the nearly uniform and consistent articulation by our Court of a standard of ordinary deference for appellate review of a magistrate’s determination of probable cause for the issuance of a search warrant.

Ultimately, I do not view this articulation of a standard of ordinary deference by our Court as contravening the fundamental teachings of Gates which are, as Chief Justice Castille has reminded in his concurring opinion, that the Fourth Amendment expresses a “strong preference for searches conducted pursuant to a warrant,” Gates, 462 U.S. at 236, 103 S.Ct. 2317, and that warrant review is not to be “hypertechnical” but conducted in a “commonsense manner.” Id. As the United States Supreme Court underscored in Leon, in deferring to the magistrate, a reviewing court is not required to relinquish its duty to carefully consider whether a magistrate made the proper legal determination that, under the totality of the factual circumstances as pled in a search warrant affidavit, constitutionally sufficient probable cause existed to issue the warrant. Therefore, no matter how it has been characterized — as ordinary deference, due deference, substantial deference, or great deference — appellate review of the magistrate’s legal determination of probable cause, as with appellate review of all legal questions, remains plenary. See Commonwealth v. Coleman, 574 Pa. 261, 272, 830 A.2d 554, 560 (2003) (“[S]ince no factual question is involved in a four corners analysis of the sufficiency of a warrant affidavit, the issue is one of law as to which our review is plenary.”); McNeil v. Jordan, 586 Pa. 413, 427, 894 A.2d 1260, 1268 (2006) (“Our caselaw long has held that questions of law are accorded full appellate review, and our consideration is plenary.”); Guido v. Township of Sandy, 584 Pa. 93, 101, 880 A.2d 1220, 1225 (2005) (since parties did not dispute facts, the issue presented was a purely legal one and our court’s review was plenary). In conducting this plenary review, an appellate court of this Commonwealth is in no way required to defer to the legal conclusions of the courts below if those conclusions are erroneous. Commonwealth v. Mistler, 590 Pa. 390, 396-97, 912 A.2d 1265, 1269 (2006); Commonwealth v. Millner, 585 Pa. 237, 247, 888 A.2d 680, 686 (2005). As Chief Justice Castille has aptly stated in his concurring opinion, “When the question is a purely legal one (such as the question of whether an agreed-upon set of facts and circumstances establishes probable cause), there is no jurisprudential reason for a reviewing court to defer to the judgment of any entity below: whether it be the trial judge, a magistrate, or a police officer in the field.” Concurring Opinion (C.J. Castille) at 208, 988 A.2d at 660. Thus, neither our Court nor the Superior Court is compelled to defer to a magistrate’s legal conclusion that probable cause existed for the issuance of a warrant if the facts as set forth in the affidavit fail to provide a substantial basis for that conclusion. See, e.g., Torres, 564 Pa. at 101, 764 A.2d at 540 (reversing Superior Court because affidavit of probable cause did not set forth a substantial basis to issue a warrant to search defendant’s apartment since it contained insufficient facts about the basis of knowledge of the anonymous informants or their veracity in order to establish the reliability of the information they gave to the police).

The Superior Court panel below conducted its appellate review in accordance with the principles of warrant review articulated in Gates and Gray. It examined the totality of the facts as pled in the affidavit, which was by no means a model of clear draftsmanship, and, accepting them as true, concluded as a matter of law that these facts furnished the magistrate “no basis” to approve the search warrant. See Commonwealth v. Jones, 928 A.2d 1054, 1058-60 (Pa.Super.2007) (citing Gray and Gates). The panel’s determination of the correctness of the lower court’s legal conclusions was its rightful and proper task as a reviewing court. Indeed, our present reversal of the Superior Court is an exercise of that very same function of appellate review, pursuant to our duty under our Commonwealth’s Constitution to be the final arbiters in the Pennsylvania Judicial System of such legal determinations. See Commonwealth v. Pinney, 474 Pa. 210, 213, 378 A.2d 293, 295 (1977) (“[I]t is this Court’s duty to make an independent examination of probable cause, apart from any conclusions drawn by a trial judge or other appellate court, to ensure that the constitutional criteria established to safeguard Fourth Amendment rights have been respected.”) Although our Court presently arrives at a different legal conclusion than that reached by the Superior Court, our decision should be construed as nothing more than the simple correction of a legal error by the Superior Court, which we have had occasion to do in the past since reasonable judicial minds can and do differ, at times, on what the law requires under certain circumstances. It should not be considered a departure from the traditional standard of review under which the appellate courts of this Commonwealth resolve challenges to a magistrate’s probable cause determination.

Next, I respectfully disagree with the Majority’s assertion that the Superior Court panel “appears to have substituted its judgment for that of the police with respect to the direction of the unfolding investigation.” Majority Op. at 204, 988 A.2d at 658. Although the Majority rightly recognizes that a search warrant may be used as an investigative tool under the appropriate circumstances, I believe the Majority has not given sufficient recognition to the fundamental constitutional limitations attendant to its use for this purpose. As the Majority has noted, Pa.R.Crim.P. 201(3) expressly permits the use of a warrant “to search for and to seize ... property that constitutes evidence of the commission of a criminal offense.” This rule derives from the United States Supreme Court decision in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

In Hayden, the Supreme Court reconsidered the question it had addressed in its earlier jurisprudence as to whether the Fourth Amendment permitted the police to search for and seize purely evidentiary materials related to the commission of a crime. Previously, the Court had established a distinction between searches and seizures involving “mere evidence” of a crime as opposed to searches and seizures conducted for the purpose of recovering contraband and the fruits of a crime, having decided that the former was proscribed by the Fourth Amendment while the latter was permitted.⁴ The Hayden Court cast aside this distinction, however, and held “it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals.” 387 U.S. at 306, 87 S.Ct. 1642 (emphasis added). In arriving at its holding, the Court took care to emphasize the vital purposes served by the Fourth Amendment, which it reminded was

a reaction to the evils of the use of the general warrant in England and the writs of assistance^[5] in the Colonies, and was intended to protect against invasions of the sanctity of a man’s home and the privacies of life from searches under indiscriminate general authority. Protection of these interests was assured by prohibiting all unreasonable searches and seizures, and by requiring the use of warrants, which particularly describe the place to be searched, and the persons or things to be seized, thereby interposing a magistrate between the citizen and the police.

Id. at 301, 87 S.Ct. 1642 (internal quotation marks and citation omitted). Thus, the Court mandated that a warrant which authorizes a search for evidence must comport with the same requirements which the Fourth Amendment places on search warrants for the fruits or instrumentalities of crime, or contraband, specifying:

There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband— between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.

Hayden, 387 U.S. at 307, 87 S.Ct. 1642.

The Supreme Court has consequently made quite clear that the Fourth Amendment does not allow warrants of this nature to be used as a general investigative tool permitting the police to caríe blanche seize any person’s private property, papers, or effects in the conduct of a criminal investigation. In order for a magistrate to issue a valid warrant allowing the police to search for and seize evidence of a crime, the police must demonstrate probable cause to the magistrate that the items sought by the warrant have a connection to the crime or crimes under investigation. See Commonwealth v. Butler, 448 Pa. 128, 131, 291 A.2d 89, 90 (1972) (applying Hayden to find a nexus between a warrant authorizing the seizure of a suspect’s clothing and the crime being investigated, a stabbing, since there was probable cause to believe the suspect’s clothing would be covered in blood, inasmuch as the suspect had been identified by a witness as a participant in the stabbing). It is therefore the obligation of a reviewing court to ensure that an affidavit in support of the issuance of such a warrant has furnished a substantial basis for a magistrate to conclude that probable cause of this required nexus exists. The Superior Court’s review of the affidavit of probable cause in the case sub judice was completely in accordance with this obligation and was not, as the Majority suggests, an untoward substitution of its judgment for that of the police as to the direction and conduct of an investigation.

My examination of the affidavit of probable cause, in accordance with the principles articulated in Hayden and Butler, compels me to conclude that the facts pled therein failed to set forth a substantial basis for the magistrate to conclude that there was probable cause of a connection between “pagers, drugs, drug paraphanalia [sic] handguns, bullets,” Jones, 928 A.2d at 1059, and the crime which the police were investigating — the shooting death of Abdul Sesay. The affidavit is utterly devoid of any facts which would establish a fair probability that Sesay’s death was somehow drug-related or that items relating to drug dealing would be found in the dormitory room. Likewise, as the shooting of Sesay took place in a public area, blocks away from the room, the affidavit fails to set forth any facts which would indicate why there was a fair probability that handguns or bullets involved in the shooting could be found within the room. However, as the Majority notes, none of these items was found during the execution of the warrant; thus this deficiency in the affidavit did not, in this instance, necessitate the suppression of any evidence.

By contrast, the affidavit did furnish a substantial basis for the magistrate to conclude that there was probable cause that other evidence identifying Sesay would be found in the room since it set forth factual details regarding the police investigation which established a fair probability that such evidence would be in the room, namely, the police discovery of his keys to the room, and their confirmation with Widener University security that Sesay was a student there. I therefore agree with the Majority that this identification evidence was necessary to establish the identity of the victim of a murder, which is a fact which the Commonwealth must prove at trial.⁶ Hence, since this portion of the affidavit provided probable cause of a nexus between the sought after information and the crime being investigated, the search warrant was valid,⁷ and the pieces of evidence the police discovered — Sesay’s bloody cell phone and shirt, and Appellee’s bloody shorts with Sesay’s blood on them — were observed by the police in plain view after their entry into the room, and, consequently, were lawfully seized. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (items observed by police while serving a valid search warrant were properly seized since they were in plain view and their incriminating evidentiary nature was immediately apparent); Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007) (plurality) (although issuing a plurality opinion, the majority of the Court agreed Horton set forth the requirements for seizure of an object without a warrant which is in plain view).

It is for these reasons I concur in the result reached by the Majority.

Justice SAYLOR joins this concurring opinion.

1 . I note that the highest courts of two of our sister states have concluded that, in the absence of a specific declaration by the United States Supreme Court that a particular standard of appellate review is mandated in order to enforce fundamental rights secured by the United States Constitution, their appellate courts may utilize a more exacting standard of review of claims of violations of federal constitutional rights than that articulated by the United States Supreme Court for such claims. See, e.g., State v. Navas, 81 Hawai’i 113, 913 P.2d 39 (1996) (expressly rejecting the Gates standard of review in favor of ele novo review of a magistrate’s determination of probable cause because the Hawaii Constitution provided more extensive protections than the United States Constitution); State v. Thurman, 846 P.2d 1256 (Utah 1993) (holding that, because Utah Supreme Court had authority under its state constitution to manage the appellate process and supervisory authority over all state courts, it had power to fashion standards of review and, thus, absent any prohibition by the United States Supreme Court or by Congress, it was authorized to adopt its own standard of review for questions of federal law, including the voluntariness of consent given for a police search in order to render it lawful under die Fourth Amendment).

2 . Even though our Court quoted Council, which was a pre-Gates case, for this proposition, I view this quotation as a reaffirmation of the principle that due deference is what is required to be shown a magistrate’s legal conclusion regarding probable cause.

3 . See Torres, 564 Pa. at 101, 764 A.2d at 540.

4 . See Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647 (1921) (holding that a warrant "maj not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding ...”).

[5] 5. The United States Supreme Court previously described these instrumentalities and their attendant deleterious impact on the persons and property of our colonial forebears, thusly:

The general warrant in which the name of the person to be arrested was left blank, and the writs of assistance!, which gave British customs officials the unlimited authority to search anywhere for goods imported in violation of the Crown’s tax laws, Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)], against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of 'probable cause’ before a magistrate was required.

Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) (footnotes omitted).

6 . Commonwealth v. Elliott, 549 Pa. 132, 142 n. 10, 700 A.2d 1243, 1248 n. 10 (1997).

7 . See, e.g., Commonwealth v. Hernandez, 594 Pa. 319, 334, 935 A.2d 1275, 1283 (2007) (holding that so long as there is some competent evidence set forth in the search warrant affidavit establishing probable cause the warrant will be considered valid).