Judges： Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
Filed Date： 2/4/1991
Status： Precedential
Modified Date： 10/19/2024
OPINION OF THE COURT
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 Article I, Section 8, of the Pennsylvania Constitution. Accordingly, the decision of the Superior Court is reversed.
The defendant in the instant case was found guilty after a non-jury trial on August 18, 1987 of criminal conspiracy, 18 Pa.C.S. Section 903(a)(1), simple possession, possession with intent to deliver, possession with intent to manufacture and manufacture of a controlled substance, in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. The conviction was premised upon the admission into evidence of marijuana seized at the defendant’s property pursuant to a search warrant, after information was received from two anonymous informants.
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
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:
*378 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 checking 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 x 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 arid 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 defendant 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 evidence that there was marijuana growing outside the corrugated building.
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 informants 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 Rule 2003 of the Pennsylvania Rules of Criminal Procedure, this warrant would be incapable of establishing probable cause to justify the search of defendant’s property. The warrant failed to set forth a time frame from which a neutral and detached magistrate could reasonably infer that the criminal conduct observed was recent and would most likely still be in progress at the time the warrant was requested. Conner, supra.
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 Article I Section 8 of the Pennsylvania Constitution afforded no greater protection to its citizens than that provided under the 4th Amendment to the United States Constitution. The Superior Court panel found no compelling reason to deviate from the decision of the United States Supreme Court in Leon, and likewise endorsed the federal “good faith” exception to the exclusionary rule as a matter of Pennsylvania jurisprudence.
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 Rule 2003 and our decision in Conner render the warrant invalid on its face under Pennsylvania law. The only way to salvage the warrant from facial invalidity is to disregard Rule 2003 and consider oral testimony outside the four corners of the affidavit to establish probable cause, which we are not free to do; or to consider the same oral testimony to establish a “good faith” exception under the federal Leon test, which is precisely what the trial court sought to accomplish. The trial judge conducted a supplemental suppression hearing for the express purpose of bringing the Leon issue four-square into this case, and the Superior Court affirmed explicitly on that basis. The “good faith” exception issue having thus been joined by both courts below, we are now constrained to address it.
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 4th Amendment does not mandate suppression of illegally seized evidence obtained pursuant to a constitutionally defective warrant, so long as the police officer acted in good faith reliance upon the warrant issued by a neutral and detached magistrate.
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 and 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 truth-finding 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. Consequently, 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, ráther 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.
The U.S. Supreme 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 Article 1, Section 8 of the Pennsylvania Constitution. In concluding that it is not, we set forth a methodology to be followed in analyzing
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.
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”
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) 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 Article 1, Section 8 of the Pennsylvania Constitution provides as follows:
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 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.
Although the wording of the Pennsylvania Constitution is similar in language to the Fourth Amendment of the United States Constitution,
B. History
We have made reference, on repeated occasions, to the unique history of Article 1, Section 8, as well as other provisions of the Pennsylvania Constitution. As we noted in Sell: “constitutional protection against unreasonable searches and seizures existed in Pennsylvania more than a decade before the adoption of the federal Constitution, and fifteen years prior to the promulgation of the Fourth Amendment.” Id. 504 Pa. at 63, 470 A.2d at 466.
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 Article 1, Section 8 of the present Pennsylvania Constitution, which relates to freedom from unreasonable searches and seizures, that provision had its origin prior to the 4th Amendment, in Clause 10 of the original Constitution of 1776. See Sell, 504 Pa. at 63, 470 A.2d at 466. Specifically, the original version of the search and seizure provision reads as follows:
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 Article 1, Section 8, that provision is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries. As we stated in Sell: “the survival of the language now employed in Article 1, Section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.” Id. 504 Pa. at 65, 470 A.2d at 467. See, also, Commonwealth v. Melilli; Commonwealth v. Bussey; Commonwealth v. DeJohn; Commonwealth v. Triplett; Commonwealth v. Richman; Commonwealth v. Campana; Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, Pennsylvania v. Platou, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Denoncourt v. Com., State Ethics Com., 504 Pa. 191, 470 A.2d 945 (1983); Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986); Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988).
The history of Article I, Section 8, thus indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the exclusionary rule under the 4th Amendment, as articulated by the majority in Leon.
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 eorrolary to the prohibition against unreasonable searches and seizures.
During the first decade after Mapp, our decisions in Pennsylvania tended to parallel the cases interpreting the 4th Amendment. However, beginning in 1973, our case-law began to reflect a clear divergence from federal precedent. The United States Supreme Court at this time began moving towards a metamorphosed view, suggesting that the purpose of the exclusionary rule “is not to redress the injury to the privacy of the search victim (but, rather) to deter future unlawful police conduct.” Calandra, 414 U.S. at 347, 94 S.Ct. at 619 (emphasis added); See, also, U.S. v. Peltier, 422 U.S. 531, 536, 95 S.Ct. 2313, 2317, 45 L.Ed.2d 374 (1975). At the same time this Court began to forge its own path under Article I, Section 8 of the Pennsylvania Constitution, declaring with increasing frequency that Article I, Section 8 of the Pennsylvania Constitution embodied a strong notion of privacy, notwithstanding federal cases to the contrary. In Commonwealth v. Platou and Commonwealth v. DeJohn, we made explicit that “the
From DeJohn forward, a steady line of case-law has evolved under the Pennsylvania Constitution, making clear that Article I, Section 8 is unshakably linked to a right of privacy in this Commonwealth. See, Commonwealth v. Platou, (1973); Commonwealth v. DeJohn, (1979); Commonwealth v. Sell, (1983); Commonwealth v. Miller, (1986); Commonwealth v. Blystone, (1988); and Commonwealth v. Melilli, (1989).
As Mr. Justice Flaherty noted in Denoncourt, supra, in echoing the wisdom of Justice Brandéis 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 Article I, Section 8 of the Pennsylvania Constitution was offended by the installation of a pen register device without probable cause. Mr. Justice Papadakos, in rejecting the holding of the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), emphasized that “Article I, Section 8 of the Pennsylvania Constitution ... may be employed to guard individu
Thus, the exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of Article I, Section 8; to-wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause. Melilli, supra. As this Court explained in Commonwealth v. Miller:
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 4th Amendment purpose of deterring police conduct is irrelevant. Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in “good faith” in carrying out their duties. What is significant, however, is that our
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.
A mere scorecard of those states which have accepted and rejected Leon is certainly not dispositive of the issue in Pennsylvania. However, the logic of certain of those opinions bears upon our analysis under the Pennsylvania Constitution, particularly given the unique history of Article 1, Section 8.
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 New Jersey Constitution, because it would undermine the requirement of probable cause. Although New Jersey, like Pennsylvania, had no exclusionary rule in place prior to Mapp v. Ohio in 1961, the New Jersey
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 Article I, Section 7 of the Connecticut Constitution, was to “preserve the integrity of the warrant issuing process as a whole.” State v. Marsala, 216 Conn, at 169, 579 A.2d at 67, quoting, S. Wasserstrom & W. Mertens, The Exclusionary Rule on the Scaffold: But was it a Fair Trial? 22 AM.Crim.L.Rev. 85,111. Thus, when evidence was suppressed under this provision due to a defective warrant, “the issuing authority ... is not being ‘punished’ for a mistake, but is, rather, being informed that a constitutional violation has taken place and is also being instructed in how to avoid such violations in the future.” Marsala, at 168, 579 A.2d at 67.
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 North Carolina Constitution. The court in Carter emphasized the need to preserve the integrity of the judiciary in North Carolina, in excluding illegally seized evidence when such important rights of the citizenry were at stake. Wrote the North Carolina Supreme Court:
The exclusionary sanction is indispensable to give effect to the constitutional principles prohibiting unreasonable search and seizure. We are persuaded that the*402 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 Article 1, Section 8, as well as the clear prohibition against the issuance of warrants without probable cause, or based upon defective warrants, the good faith exception to the exclusionary rule would directly clash with those rights of citizens as developed in our Commonwealth over the past 200 years. To allow the judicial branch to participate, directly or indirectly, in the use of the fruits of illegal searches would only serve to undermine the integrity of the judiciary in this Commonwealth. See, Carter, supra, Marsala, supra. From the perspective of the citizen whose rights are at stake, an invasion of privacy, in good faith or bad, is equally as intrusive. This is true whether it occurs through the actions of the legislative, executive or the judicial branch of government.
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 Article 1, Section 8.
First, such a rule would effectively negate the judicially created mandate reflected in the Pennsylvania Rules of Criminal Procedure, in Rules 2003, 2005 and 2006. Specifically, Rule 2003 relates to the requirements for the issuance of a warrant, and provides in relevant part:
*403 (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). Rule 2003 thus adopts a “four corners” requirement, and
provides that only evidence contained within the four corners of the affidavit may be considered to establish probable cause. This Rule, along with Rules 2005 and 2006
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 Article I, Section 8 of the Pennsylvania Constitution itself mandated that all facts relied upon to establish probable cause be reduced to writing; the constitutional language itself contained no such requirement. Id. 450 Pa. at 314, 300 A.2d at 81. We therefore held that the sworn oral testimony of the
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 Pa.R.Crim.P. 2003 on March 28, 1973, effective in 60 days, which made explicit that probable cause for search warrants in Pennsylvania may be based only upon materials contained within the four corners of the written affidavit.
Rule 2003 thus serves to underscore the incongruity of adopting a good faith exception to the exclusionary rule in Pennsylvania. Although Rule 2003 is not constitutionally mandated by Article 1, Section 8, as Milliken correctly
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 Rule 2003, but would permit the admission of illegally seized evidence in a variety of contexts where probable cause is lacking, so long as the police officer acted in “good faith.” In Leon itself probable cause was absent entirely, yet illegally seized evidence was admitted into evidence. 468 U.S. at 905, 104 S.Ct. at 3411.
We cannot countenance such a wide departure from the text and history of Article 1, Section 8, nor can we permit the use of a “good faith” exception to effectively nullify Pa.R.Crim.P. 2003. Our Constitution requires that warrants shall not be issued except upon probable cause. We have specifically adopted Rule 2003 for the purpose of confining the probable cause inquiry to the written affidavit and warrant, in order to avoid any doubt as to the basis for
A second policy consideration which bolsters our conclusion is that the underlying premise of Leon is still open to serious 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 US. 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 and 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 4th Amendment require a warrant to be issued by a “neutral and detached magistrate,” because as Mr. Justice Papadakos noted, there is a requirement of “an independent determination of probable cause.” Commonwealth v. Smith, 511 Pa. 36, 41, 511 A.2d 796, 798 cert. den., 479 U.S. 1006, 107 S.Ct. 643, 93 L.Ed.2d 700 (1986), citing, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The reason for this requirement is evident. Would the District Justice act as nothing more than an adjunct of the police department, there would be no opportunity for review of the warrant prior to its issuance, and hence, a search warrant would be nothing more than the police’s own determination of whether probable cause exists. We cannot countenance such a policy as it clearly runs afoul of our historically based system of government; which requires three independent branches.
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 scheme 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).
In the instant case, the evidence seized from defendant Edmunds was the product of a constitutionally defective search warrant. Article I, Section 8 of the Pennsylvania Constitution does not incorporate a “good faith” exception to the exclusionary rule. Therefore, the marijuana seized from the white corrugated building, the marijuana seized from Edmund’s home, and the written and oral statements obtained from Edmunds by the troopers, must be suppressed. We base our decision strictly upon the Pennsylvania Constitution; any reference to the United States Constitution is merely for guidance and does not compel our decision. See Michigan v. Long, supra, 463 U.S. at 1040-41, 103 S.Ct. at 3476-77.
Justice Brandéis, in his eloquent dissent in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 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 Article I, Section 8, that is a small price to pay, we believe, for a democracy.
. 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.
. This fact contradicts the statements in the affidavit, wherein the two anonymous informants allegedly saw marijuana growing outside the white corrugated building.
. 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 Pa.R.Crim.P. 2003, which requires us to confine our inquiry to the four comers of the document.
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
. In the companion case of Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), the evidence obtained by the police officer in good faith reliance upon a warrant issued by a neutral magistrate was deemed admissible, even though the warrant was facially defective in failing to describe with particularity the items to be seized. The search was intended for weapons, however, the warrant was issued on a pre-printed form authorizing searches for controlled substances. 468 U.S. at 987, 104 S.Ct. at 3427.
. Similarly, Justice Pollock of the New Jersey Supreme Court recently explained: "The first ten amendments (to the U.S. Constitution) establish a foundation for the protection of human liberty. A state may not undermine that foundation, but its constitution may build additional protections above the federal floor." Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex.L.Rev. 977, 980 (1985).
. The term "New Federalism” has been used increasingly to define the recent emphasis on independent state constitutional analysis. “Federalism in the Twenty-First Century," in Federalism — The Shifting Balance (J. Griffith ed. 1989); Abrahamson & Gutmann, The New Federalism: State Constitutions and State Courts, 71 Judicature 88 (1987); See, e.g., Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 Mich.L.Rev. 583 (1986); and, Douglas, Federalism and State Constitutions, 13 Vt.L.Rev. 127 (1988).
. These factors have been culled from the prior decisions of this Court which have established a framework for state constitutional analysis in Pennsylvania. See, e.g., Commonwealth v. Sell, Commonwealth v. DeJohn, and Commonwealth v. Melilli.
. 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.”
. There are certain provisions of the Pennsylvania Constitution which have no direct analogue under the federal constitution. See, e.g., Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974) (interpreting Art. I, Sec. 28). In such cases, the need for independent analysis is even more significant.
. As early as Weeks, the United States Supreme Court made clear that the exclusionary rule was a necessary adjunct of the 4th Amendment; without it, the protections of the 4th Amendment "might as well be stricken from the Constitution.” Id., 232 U.S. at 393, 34 S.Ct. at 344. The Weeks Court referred to the exclusionary rule as “that command which this Court has held to be a clear, specific, and constitutionally required — even if judicially implied — deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.’ ’’ Id. at 392, 34 S.Ct. at 344.
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 the 4th Amendment would be reduced to a hollow promise. Id. at 1384 (emphasis in original).
. A number of state courts have applied the federal Leon test, without any independent analysis under their slate constitutions. See, e.g., State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986); Hyde v. State, 769 P.2d 376 (Wyo.1989). For a complete list of those states which have adopted and rejected Leon, with or without analysis,
. Rule 2005 of the Pa. Rules of Criminal Procedure, relating to contents of search warrants, provides in relevant part:
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). Rule 2006 of the Pa. Rules of Criminal Procedure relating to contents of application for search warrant, sets forth what shall be contained in the written affidavit as follows:
Each application for a search warrant shall be by written affidavit^) 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 the 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*404 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 Rules 2005 and 2006 are read in conjunction with Rule 2003, there is absolutely no question that oral statements of the police officer not in writing — of the sort made in the instant case by Trooper Deise — may not be considered in determining whether probable cause has been established. This is mandated by the Rules regardless of whether the officer’s statements are made under oath. The Rules limit the probable cause determination to those facts set forth in the "written affidavit(s) attached to the warrant,” (Rule 2005) and specifically enumerate those facts which shall be contained in the written affidavit (Rule 2006). The very purpose of these Rules was to eliminate resort to facts and statements dehors the written documentation, in order to avoid any danger of later reconstructing events in a skewed fashion, whether intentionally or not. See Milliken, supra.
. See also Commonwealth v. Geary, 488 Pa. 174, 411 A.2d 1195 (1980). In Geary, we described the history of Article I, Section 8, and explained why oral testimony was not prohibited by the Constitution in making a probable cause determination with respect to arrest warrants, even though Rule 2003 mandated such a result with respect to search warrants. Geary is significant in that it expressly reaffirms Milliken and Rule 2003. Three members of the present court — Chief Justice Nix, Justices Larsen and Flaherty — joined the majority in Geary, citing Rule 2003 approvingly for the proposition that "all information used to supply probable cause for a search warrant must be in the affidavit ...” Id., 488 Pa. at 177-178, 411 A.2d at 1197.
. Our holding today is in no way meant to conflict with this Court’s decision in Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). In Mason, this Court held that not every perceived violation of the Pennsylvania Rules of Criminal Procedure requires the automatic exclusion of evidence seized. In that case, a putative violation of Pa. Rule of Criminal Procedure 2004 ("A search warrant shall be served by a law enforcement officer”) was held insufficient to jusitify the exclusion of evidence, where probable cause was clearly established and a proper warrant issued. (The Court ultimately concluded in Mason that Rule 2004 had not been violated). In the opinion authored by Mr. Justice Larsen, this Court emphasized that nothing in the history of the Rules themselves, or related case law, mandated that every violation of the Rules of Criminal Procedure — however technical — required exclusion of evidence seized in the process. See, e.g., Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983) (violation of Rule 2003(c) regarding nighttime searches does not require exclusion of evidence seized). Rather, as Mr. Justice Larsen explained, it is only where the violation "implicates fundamental, constitutional concerns ...” that exclusion may be appropriate. Id. 507 Pa. at 407, 490 A.2d at 426.
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
. 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 Look 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 LJ. 1405 (1986).
. See 468 U.S. at 907 n. 6, 104 S.Ct. at 3412 n. 6.
. See Note, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U.Chi.L.Rev. 1016, 1053 (1987). In a survey of 26 Chicago narcotics officers, all 26 believed that the exclusionary rule was preferable to a system where police officers were sued directly.
. See, 468 U.S. at 958, 104 S.Ct. at 3444 (Brennan, J. dissenting).
. In another study, Professor Loewenthal found "strong evidence that, regardless of the effectiveness of direct sanctions, police officers could neither understand nor respect a court which purported to impose Constitutional standards on the police without excluding evidence obtained in violation of those standards____” See Loewenthal, Evaluating the Exclusionary Rule in Search and Seizure, 49 UMKC L.Rev. 24, 29-30. This study of New York police officers found that after Mapp made police officers aware of the existence of Constitutional rights relating to search and seizure, they viewed the exclusionary rule as an "absolute necessity.” Id., at 29. Professor Loewenthal concluded that police officers would view the elimination of the