Commonwealth, Aplt. v. Dunnavant, G.

[J-20-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 18 WAP 2013
:
Appellant : Appeal from the Order of the Superior
: Court entered February 27, 2013 at No.
: 1046 WDA 2012, affirming the Order of the
v. : Court of Common Pleas of Mercer County
: entered June 8, 2012 at No.
: CP-43-CR-0001291-2011.
:
GERALD M. DUNNAVANT, : 63 A.3d 1252 (Pa. Super. 2013)
:
Appellee : ARGUED: April 8, 2014
OPINION IN SUPPORT OF REVERSAL
MR. CHIEF JUSTICE CASTILLE DECIDED: DECEMBER 29, 2014
The Court granted this discretionary appeal to consider the admissibility at a
criminal trial of evidence consisting of a soundless videotape of a drug deal, captured by a
hidden camera police placed in the clothing of a confidential informant (“CI”), who met
appellee on a pre-arranged street corner for a drug “buy,” but was then transported by
appellee to appellee’s residence, where the CI was invited inside and the drug buy
transpired. The trial court and the Superior Court both held that the videotape was the
result of a warrantless search not subject to exception, and therefore, suppression of the
videotape was required. For the reasons that follow, we would reverse.
A series of decisions by this Court some years ago considered the highly
analogous circumstances of surreptitious audio recordings made by CIs at police
instigation in various scenarios – including an unidentified location outside the home,
inside a place of employment or business, inside another person’s home, inside the
defendant’s home at the specific direction of the police, and recordings of a telephone
conversation made by police from another location. See discussion infra. Remarkably,
throughout this litigation, neither the parties nor the courts below have shown any
awareness of this developed decisional law. Instead, the parties debate, and the courts
below trained their focus upon, whether this case is controlled by observations in a single
panel decision of the Superior Court, Commonwealth v. Kean, 556 A.2d 374 (Pa. Super.
1989), appeal denied, 575 A.2d 563 (Pa. 1990) – a case involving a videotape made by a
private party, not at the instigation of or with the involvement of police.1 In contrast, the
Kean majority decision itself, written by the Honorable Phyllis W. Beck a quarter century
ago, grasped the complexities and identified the relevant authority. Indeed, Kean
directly engaged the contemporary law in this area, which was then in its infancy. The
opinion ably discussed and distinguished both federal law under the Fourth Amendment
to the U.S. Constitution and this Court’s then-recent Article I, Section 8 decision in
Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988), aff’d on other grounds, Blystone v.
Pennsylvania, 494 U.S. 299 (1990).
In this case, notwithstanding that this Court granted discretionary review to
consider the published Superior Court opinion disapproving of a government agent (here,
a CI) using a hidden camera to record a drug deal in this scenario, which raises a legal
question of obvious importance both to law enforcement and privacy rights in
Pennsylvania, the parties have retained their myopic focus on the Kean decision.
1 Kean is the only decision cited in the trial court opinion and in appellee’s brief here and
in the Superior Court. The Commonwealth likewise focuses upon distinction or
reconsideration of Kean, but with a supplemental focus on federal circuit court decisions,
which would be on point as a Fourth Amendment matter, if not controlling on the related
state constitutional question. The Superior Court’s analysis was somewhat more
sophisticated, albeit the panel did not engage our cases and ultimately couched its
decision solely in terms of Kean’s analysis being controlling.
[J-20-2014] - 2
Indeed, the Commonwealth’s brief is a virtual reproduction of its Superior Court brief, with
the argument itself being entirely verbatim. It provides no description, analysis, or
criticism of the Superior Court holding and analysis, much less a discussion of what is
now a line of decisions proceeding from Blystone. Moreover, in its core substantive
point, the Commonwealth asks this Court to distinguish “its” holding in Kean, as though
Kean was our precedent and not that of the Superior Court. Appellee’s brief, in turn,
although adapted for presentation in this Court, makes the same narrow argument as
below, reliant upon the purportedly controlling effect of Kean’s observations about privacy
where videotaping in the home is involved. Obviously, the advocacy to this Court and
correlatively truncated judicial analyses below do not produce optimum circumstances
under which to consider and render state constitutional rulings of broad guidance.
Nevertheless, and particularly in light of the fact that the intermediate decision below was
published and will be of broad effect, and given the absence of nuance or appreciation of
relevant cases from this Court,2 we would proceed to a deliberately narrow decision to
reverse and remand, aided by our awareness of the relevant decisions of this Court.
In September 2010, Douglas Loadman, a veteran narcotics agent with eleven
years of experience, was working for the Pennsylvania Bureau of Narcotics Investigations
and Drug Control, which is a division of the Office of Attorney General. Agent Loadman
testified that he was participating in a drug task force investigation with the Southwest
Mercer County Regional Police Department; the investigation targeted many individuals,
2 This author has noted that Pennsylvania does not have a “depublication” rule, such as
that available by court rule in California, whereby the mischief that may result from
obviously problematic published decisions of the intermediate courts can be minimized
without the commitment of Supreme Court resources necessary to engage in full
corrective review. See Curley v. Wetzel, 82 A.3d 418, 418 (Pa. 2013) (Castille, C.J.,
concurring, joined by Eakin, J.) (“Such a rule may be salutary, and perhaps the Court
should consider adopting a rule of procedure whereby we can correct problematic
published decisions of the lower courts by depublication, thus confining errors.”).
[J-20-2014] - 3
including one Lindsey Lowe, and used a paid CI to make drug buys. On the afternoon of
September 29, 2010, the CI called Lowe to arrange a purchase of crack cocaine, and
Lowe instructed the CI to go to the corner of Bond and Beechwood Avenues in Farrell,
Mercer County, and meet Lowe’s “runner.” N.T., 6/6/12, at 4-7.
In anticipation of the drug buy, Agent Loadman placed a covert digital camera on
the front of the CI’s shirt. The camera was equipped to record black and white video of
what was directly in front of the CI, but not sound. Task force personnel also provided
the CI with specially marked “buy cash.” The camera was activated and a task force
member drove the CI nearby to the street corner designated by Lowe. Task force
personnel also conducted surveillance, placing multiple officers near the corner where
the task force expected the “buy” to take place. N.T., 6/6/12, at 6-8, 12, 43. Agent
Loadman, who was part of the surveillance unit, saw the CI proceed to the corner and wait
until appellee, who was recognized by some task force members (but not by Agent
Loadman), pulled up in a car. The CI was seen entering the front passenger side of the
car, and then appellee drove away, followed by members of the task force, to an address
that task force members told Agent Loadman was appellee’s residence. Agent
Loadman then saw the CI and appellee walk up to the residence’s porch. The CI entered
with appellee and was inside the house for about five minutes, during which time he could
not be seen by the task force. The CI then exited the house and was soon picked up by
task force personnel, who recovered two bags of suspected cocaine from him, which the
CI said had been sold to him by appellee inside appellee’s house. Agent Loadman
retrieved the camera and downloaded the video onto a DVD. Id. at 11-18.
The videotape captured the following sequence: the trip of the task force driver and
the CI to the location; the CI exiting the vehicle; the CI walking to and waiting at the
designated corner; the CI entering and riding in a car driven by appellee; the CI exiting the
[J-20-2014] - 4
car and walking with appellee into appellee’s residence; the CI and appellee sitting in
appellee’s living room; appellee leaving the living room, going into another room,
returning to the living room, and handing the CI two plastic bags (which were later found
to contain 25.2 grams of cocaine); the CI leaving appellee’s residence, walking along the
street, and being picked up by a vehicle; and the CI being driven away. During this entire
period, the CI was under visual surveillance by task force personnel, albeit they obviously
could not see inside the residence while the buy was actually occurring. N.T., 6/6/12, at
20-27.
Appellee and Lowe were ultimately arrested on September 8, 2011, pursuant to a
warrant based on a probable cause affidavit stating that the covert camera had been used
and that its video corroborated the CI’s statement that crack cocaine had been bought
from appellee inside appellee’s residence. Appellee was charged with possessory and
drug trafficking offenses, as well as criminal conspiracy.3
On February 29, 2012, appellee filed an omnibus pretrial motion alleging that the
use of the camera on the CI’s person to film him inside his home constituted an unlawful
search and seizure in violation of his rights under the Fourth and Fourteenth
Amendments to the U.S. Constitution and Article I, Section 8 of the Pennsylvania
Constitution.4 Appellee therefore sought to have the video recording suppressed.5 A
3 35 P.S. §§ 780-113(a)(16) & (30); 18 Pa.C.S. § 903(a)(1).
4 The Fourth Amendment provides: “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.” Article I, Section 8 provides: “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.”
[J-20-2014] - 5
hearing was held on June 6, 2012; Agent Loadman testified for the Commonwealth,
relating the facts summarized above. The prosecutor also called Corporal Charles
Rubano of the Southwest Mercer County Regional Police Department, who stated that he
was co-captain of the task force. Corporal Rubano testified that he had conducted
surveillance of appellee prior to the date in question, knew appellee’s car and residence,
and had observed “foot traffic” of people going into appellee’s residence, staying for only
a few minutes, and then leaving. Corporal Rubano stated that he had believed that this
particular transaction would take place on the corner where the CI was told by Lowe to
meet his runner, and that the task force had not expected appellee to take the CI into his
residence. N.T., 6/6/12, at 35-46.
The trial court issued an opinion and order granting suppression on June 8, 2012.
The opinion discussed Commonwealth v. Kean, 556 A.2d 374 (Pa. Super. 1989), one of
the few Pennsylvania cases to address covert video recording inside a private residence.
As noted, the meaning and reach of Kean was the focus of both parties and both courts
below, so a précis of the decision is warranted. The video recording in Kean did not
involve a police agent or CI entering a home, a hidden police camera, or indeed any
police involvement at all in the recording. Rather, in Kean, the defendants were a
husband and wife charged with sexual offenses and criminal conspiracy involving the
wife’s sexual activity with two male juveniles, which occurred with the husband’s
knowledge, consent, and observation. When the couple’s relations with the juveniles
(Mcontinued)
5 Appellee also sought to have the Commonwealth disclose the identity of the CI to the
defense. The trial court ordered that if the Commonwealth planned to have the CI testify,
the Commonwealth must disclose the CI’s identity to the defense at least three weeks
prior to trial. The Commonwealth did not challenge this portion of the trial court’s order
and it is not before the Court in this litigation. See Commonwealth v. Dunnavant, 63 A.3d
1252, 1255 n.1 (Pa. Super. 2013).
[J-20-2014] - 6
soured, the juveniles decided to videotape their future encounters with the wife in hopes
of using the tape to extort funds or as proof that the sexual activity was consensual if the
wife later claimed otherwise. Eventually, however, one of the juvenile’s mothers learned
of the tape, obtained it, had a relative watch it, contacted state police, and ultimately
turned it over to a state police officer. The officer and the local district attorney viewed
the tape. The defendants moved to suppress the tape, their motion failed, and they were
both convicted and sentenced to prison.
On appeal, the defendants renewed their challenge to the admissibility of the tape,
but a divided panel of the Superior Court affirmed. The lead opinion by Judge Beck,
which garnered a majority for virtually all of its substance except for the dispositive
conclusion specific to the facts in that case, stressed the need for the judiciary to “keep
pace with the threat to privacy engendered by new electronic devices [and] the dangers
posed by the increasingly widespread dissemination of videocameras and
videorecorders among the general public.” 556 A.2d at 384. The opinion began by
noting that both the Fourth Amendment and Article I, Section 8 protect areas and objects
in which citizens have, in the famous phrasing of Justice Harlan’s concurring opinion in
Katz v. United States, 389 U.S. 347, 361 (1967), a “reasonable expectation of privacy.”
However, the Kean opinion noted that Pennsylvania’s Constitution “provides broader
coverage than its federal counterpart, and an expectation of privacy which is deemed
unreasonable by federal courts may be recognized as legitimate in this jurisdiction.” 556
A.2d at 377-78.
The Kean opinion emphasized that the purpose of these protections is to “prevent
government officials from unjustifiably invading the privacy of individuals. Thus, both
state and federal constitutional limitations on ‘unreasonable searches and seizures’ apply
exclusively to the conduct of persons who are acting as instruments or agents of the
[J-20-2014] - 7
state.” Id. at 378. Nevertheless, the panel opined that determination of whether a
privacy interest exists is a threshold question, and location is a necessary part of that
consideration. In that regard, the opinion continued, there is little doubt that the
“overriding respect for the sanctity of the home” calls for the highest degree of protection.
Id. at 380 (quoting Oliver v. U.S., 466 U.S. 170, 178 (1984) and Commonwealth v. Shaw,
383 A.2d 496, 499 (Pa. 1978)).
Of particular relevance to the present dispute, the Kean opinion recognized that
there are counter-considerations, which had been explored in this Court’s then-recent
opinion in Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988), a case that considered
the constitutionality of Pennsylvania’s Wiretap Act (18 Pa.C.S. §§ 5701–5782) when a
suspect is audio-recorded by a CI wearing a recording device. The Kean opinion noted
Blystone’s review of notable U.S. Supreme Court cases and the resulting central point
that, once a person voluntarily discloses incriminating information or actions in a
conversation with another person, the risk exists that the other person may inform law
enforcement or may be recording the exchange; correspondingly, there may be a
“diminished expectation of privacy” in such interactions. 556 A.2d at 380-81 & n.5.
Kean opined that surreptitious video surveillance in the home was “uniquely
invasive,” more so than audio recording; that the Keans had a reasonable expectation of
privacy in their bedroom; that they did not waive it by previously bringing the boys into
their bedroom; and that the invasion of privacy by the two teenagers and their video
camera, although not directed or on behalf of police or other law enforcement authority,
was “extraordinary.” 556 A.2d at 378, & 381-82. Ultimately, however, the Kean court
found that the videotape was admissible, reasoning that when the mother of one of the
boys voluntarily turned the tape over to police, the transfer amounted to a valid third party
consent, and the action of the police and prosecutor in merely viewing the tape thereafter
[J-20-2014] - 8
was not an unconstitutional search or seizure. 556 A.2d at 386-89. Judge Zoran
Popovich concurred in the result without opinion, thus providing the second vote for the
mandate denying relief. 556 A.2d at 375-89.
In a concurring and dissenting opinion, President Judge Vincent A. Cirillo agreed
with the bulk of the lead opinion’s substantive constitutional analysis, but disagreed with
the dispositional point as to third party consent. In his view, the possession of something
by the police does not equate with a constitutional authority to examine its contents.
Judge Cirillo would have concluded that the defendants’ Fourth Amendment rights were
violated, notwithstanding the absence of a governmental search or seizure. Id. at
389-91 (Cirillo, P.J., concurring and dissenting). This Court denied allocatur.
Commonwealth v. Kean, 575 A.2d 563 (Pa. 1990).
Here, the trial court focused on the emphasis in Kean as to the privacy right in
one’s home, particularly Kean’s assertion that “nowhere is the right to privacy more firmly
established than in a private residence,” and that the defendants “had a legitimate
expectation of privacy not only in their home, but also in the reflection of their home that
the videotape captured and preserved.” Trial Ct. Op. at 5 (quoting Kean).6 The trial
court then concluded that appellee did not forfeit his right to privacy by the act of inviting
the CI into his residence for the drug buy. The court recognized that a host who invites
someone into his home risks that the person may relate to others what was seen or done
in the home. But, in the trial court’s view, that understanding does not entail an
expectation that the invitee will covertly videotape the interior of the home or his
6 As described above, Kean’s broad language represented an exposition of the
Pennsylvania Constitution’s greater protection of privacy, and the trial court here relied on
Kean exclusively. But, the trial court did not note the distinction in the two charters and,
evidently and incongruously, viewed the question before it as one implicating the Fourth
Amendment alone.
[J-20-2014] - 9
experience inside. The court deemed the facts here to be “even more offensive to the
Fourth Amendment than [those in] Kean.” This was so, the court reasoned, because the
videotaping in Kean was not at the behest of law enforcement with the intent to use any
resulting incriminating evidence. The court then rejected as “bootstrapping” the
Commonwealth’s separate assertion that, because appellee sold drugs from his home, it
was a place of business entitled to a lesser degree of privacy. Id. at 6-7 & n.2.
The Commonwealth appealed to the Superior Court, certifying that the order of
suppression substantially handicapped its prosecution. The Commonwealth argued that
because appellee freely invited the CI into his home to engage in the drug transaction,
there was no unconstitutional invasion of his privacy. The Commonwealth added that,
because the CI could testify as to what he or she saw (although the Commonwealth was
reluctant to expose the identity of the CI), the silent videotape of the same place and
events should be admissible. The Commonwealth noted the age of the Kean case,
advances in technology, and a supposed absence of guidance from this Court, then
asked the Superior Court to reassess Kean in light of the facts sub judice.
The Commonwealth also argued that Kean is inapposite since the videotape in
that case was of sexual activity in a bedroom, which implicates a substantial expectation
of privacy. The Commonwealth contrasted this case, where appellee freely invited the
CI into his residence for the sole purpose of a drug sale which, the Commonwealth
argued, operated to forfeit any reasonable expectation of privacy appellee would
otherwise have had; the camera worn by the CI recorded only images from the room into
which the CI was invited; the only images captured were actions that appellee knowingly
and intentionally exposed to the CI; and when the CI left, the camera left with him. The
Commonwealth also stressed that neither the CI nor the police knew that the CI was
going to be invited into appellee’s residence: rather, the purpose of outfitting the CI with
[J-20-2014] - 10
the camera was to record the drug sale on the public street corner where appellee went
freely to meet the CI.
The Commonwealth asserted that this scenario appeared to present a question of
first impression in Pennsylvania, citing federal circuit court cases as persuasive
authority for the point that video surveillance by a CI invited into a defendant’s home does
not violate the Fourth Amendment. Those cases held that an individual forfeits privacy
interests by inviting a person who turns out to be a CI into his or her home and exposing
his or her activities to that person, who uses a hidden camera to record those activities.
See U.S. v. Brathwaite, 458 F.3d 376, 380-81 (5th Cir. 2006) (once Brathwaite invited CI
into his home, he forfeited privacy interest in activities exposed to CI, who had hidden
camera in her purse); U.S. v. Lee, 359 F.3d 194, 201 (3d Cir. 2004) (opinion by Judge,
now-Justice, Alito holding that warrantless video recording by CI did not violate Fourth
Amendment because no expectation of privacy exists in actions or statements that
defendant willingly exposes to CI); U.S. v. Davis, 326 F.3d 361, 366 (2nd Cir. 2003) (no
Fourth Amendment violation where CI was inside residence with Davis’s consent and
portable hidden camera in CI’s jacket merely memorialized what CI was able to see as
invited guest).7 Commonwealth’s Superior Court Brief, at 7-13.
Appellee responded that suppression was proper because the covert filming by
the CI was a government search undertaken without a warrant or express consent, and
no exception to the warrant requirement applied. Appellee asserted that there was no
reason why the Kean court’s observation respecting the strong right to privacy in one’s
home should not counsel suppression here, even if the covert taping here was by an
invited guest. Appellee also echoed the trial court’s emphasis on the fact that the
7 Brathwaite was remanded to the district court on other grounds, resulting in no further
available history, and the U.S. Supreme Court denied certiorari in Lee and Davis. Lee v.
U.S., 543 U.S. 955 (2004); Davis v. U.S., 540 U.S. 908 (2003).
[J-20-2014] - 11
videotaping was by a CI, a de facto government agent, and was meant to be used against
appellee in a criminal prosecution, and thus the case for suppression should be stronger
than in Kean’s private invasion of privacy scenario. Appellee’s Superior Court Brief, at
3-6.
In a unanimous published opinion, a panel of the Superior Court affirmed.
Commonwealth v. Dunnavant, 63 A.3d 1252 (Pa. Super. 2013). The panel summarily
dismissed the Commonwealth’s citation to federal circuit court decisions that addressed
video surveillance because “federal opinions are not binding on this Court.” Id. at 1255
n.2. The panel noted the sound proposition that Article I, Section 8 affords greater
protection of individual privacy than the Fourth Amendment, and quoted Kean’s
statements to that effect. But like the trial court, the panel proceeded to its analysis as if
the two are coterminous, perhaps in light of Kean’s explanation that both provisions seek
to prevent law enforcement conduct that invades an individual’s reasonable expectation
of privacy without justification or a warrant to do so. The panel then engaged the Kean
issue on the terms presented to it by the parties: i.e., was Kean distinguishable, and if not,
should it be reassessed. The panel declined to reassess Kean, noting that despite its
age, this Court had denied allocatur, and thus the decision “remains controlling law on the
subject of a defendant’s ‘legitimate expectation of privacy not only in their [sic] home, but
also in the reflection of their home that [a] videotape capture[s] and preserve[s].’” 63
A.3d at 1256 (quoting Kean, 556 A.2d at 384).
On the merits, the panel block-quoted the trial court’s reasoning that appellee had
not forfeited his right to privacy by inviting the CI into his home, and noted its agreement
with that analysis. The panel then noted that “as in Kean,” the question before it was
whether appellee “has a privacy interest in not being videotaped secretly in his own
home”; that, when government agents are involved, the question is a constitutional one;
[J-20-2014] - 12
that while Pennsylvania decisional law has construed the state charter as providing a
heightened expectation of privacy, both Article I, Section 8 and the Fourth Amendment
guard against law enforcement conduct that results in unjustifiable invasions of privacy;
and that the warrantless search represented by the videotape here did not fall within any
recognized exception to the warrant requirement. The panel then dismissed the various
distinctions of Kean offered by the Commonwealth, stating that “even if the
Commonwealth’s video recording inside the defendant’s living room was ‘inadvertent,’ we
hold that it was an unconstitutional invasion of the defendant’s expectation of privacy in
his home.” Id. at 1256-57.
This Court granted the Commonwealth’s petition for allowance of appeal to
address the following question: “Whether the suppression court erred by suppressing at
trial evidence obtained by the use of a silent video camera worn by an informant inside of
respondent's residence.” Commonwealth v. Dunnavant, 73 A.3d 524 (Pa. 2013). The
Court’s review is restricted to examining whether the record supports the suppression
court’s factual findings, while maintaining de novo review over the suppression court’s
legal conclusions. Where the suppression facts are disputed, we consider the evidence
from the prevailing party’s witnesses along with any uncontroverted evidence of the
opposing party. Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010). In this case,
there is no dispute over the operative facts, and the disputed question is one of law; the
Court’s review, then, is plenary.
As indicated above, the Commonwealth reprises its position from below exactly;
indeed, it appears that the Commonwealth has filed the same brief it filed in the Superior
Court. Even though the Commonwealth is the appellant here, there is no mention of the
Superior Court panel’s decision (from which it appeals), and no discussion of
Pennsylvania law in this area as contrasted with federal law, except to the extent that the
[J-20-2014] - 13
Commonwealth reprises its citations to federal circuit court decisions where video
surveillance was at issue. Commonwealth’s Brief at 9-13. For present purposes, the
aspects of the Commonwealth’s briefing that matter (given the audio recording
precedents of this Court) are that the CI was equipped by police with the wearable
camera for the purpose of recording a drug buy that both the police and the CI expected to
transpire on a public street corner, and was not purposefully sent by police to appellee’s
home. Then, at the prearranged corner, unexpected to the police, appellee picked up
the CI in his car, drove the CI to his own home, and brought the CI inside. The
surreptitious filming of the drug deal then occurred in appellee’s home.
Appellee’s brief, though not a verbatim reproduction of his filing in the Superior
Court, nevertheless forwards the same focus as below. Thus, he argues that
suppression was proper since there was no basis to find that he relinquished his
reasonable expectation of privacy because he could not have reasonably expected that
the person he invited into his home was a CI wearing a hidden camera. To appellee, if
such “untrammeled” government activity is permitted without a warrant based upon
probable cause, the right to privacy in the home will be threatened; and citizens’
reasonable expectation of privacy in the home must be protected from what appellee calls
“repugnant” government intrusion without probable cause.
To better focus the issue we note some preliminary points. First, as noted, neither
party argues the case in terms of the distinctions between federal constitutional law and
Article I, Section 8. Rather, both accept Kean as the governing constitutional decision,
and argue from that platform with no additional analyses specific to the Pennsylvania
constitutional experience. Second, the evidence here involves video images alone,
[J-20-2014] - 14
without audio. Since no “communication” was intercepted, the Wiretap Act8 is not at
issue facially, nor do the parties argue that it applies; this appeal thus raises a strictly
constitutional query involving the hidden video camera. Third, there is no suggestion
that the CI’s entry into appellee’s home was unlawful: he was invited across the threshold
by appellee, who drove him there from the pre-arranged street corner. There was no
breaking of doors, or evidence that the CI rummaged about the home once inside.
Fourth, appellee has not suggested that there is anything unlawful in a police agent, such
as a CI, using a hidden camera to record evidence per se. Thus, for example, appellee
does not argue that if this pre-arranged drug sale had occurred, and was surreptitiously
filmed, on the street corner where appellee and the CI met, suppression would still be
warranted. Instead, appellee’s argument for suppression focuses on the fact that the
video recording occurred in his home, without his knowledge. And, finally, appellee has
never alleged that the police employed a ruse designed to invade the privacy of
appellee’s home in order to defeat the warrant requirement. Instead, the situation, and
the Superior Court’s ultimate holding, appears to have engendered a per se rule: absent a
warrant, neither police nor a police agent may use a hidden camera in a suspect’s home,
regardless of how the camera arrives there.
Notwithstanding the exclusive focus of the parties and courts below on the Kean
decision, we do not view Kean as a particularly helpful starting point. For one thing, the
factual circumstances in Kean – non-police actors deliberately invading the privacy of the
defendants’ bedroom to set up a video camera to record all of the events therein, with
police involvement consisting only of viewing the privately-recorded tape after one of the
8 18 Pa.C.S. §§ 5701–5782. Generally speaking, the Wiretap Act criminalizes
purposefully “intercepting, using, or disclosing private communications except pursuant
to specified procedures.” Karoly v. Mancuso, 65 A.3d 301, 304 (Pa. 2013); see also
Commonwealth v. Arrington, 86 A.3d 831, 858-60 (Pa. 2014) (Castille, C.J., concurring).
[J-20-2014] - 15
boy’s mothers voluntarily gave the video to a state trooper – are not particularly relevant
to the situation here, where a CI was deliberately outfitted by police with a hidden camera
on his person for purposes of recording a drug buy outdoors and in public, but who then
was unexpectedly taken to and inside the drug dealer’s home to complete the buy. And,
moreover, the core of the broad and dramatic language from Kean seized upon below --
that “nowhere is the right to privacy more firmly established than in a private residence” --
is unexceptional. It is beyond dispute that the right to privacy has its greatest power in
the home, and this has been part of our legal tradition for centuries. See, e.g., Miller v.
U.S., 357 U.S. 301, 306-07 (1958) (“From earliest days, the common law drastically
limited the authority of law officers to break the door of a house to effect an arrest. Such
action invades the precious interest of privacy summed up in the ancient adage that a
man's house is his castle.”) (footnote omitted). And, the sanctity of the home can be
implicated by many forms of conduct amounting to “searches,” from observations by the
naked eye, to recordings and to physical searches, to name only a few.
The parties no doubt seized upon Kean because they could find no Pennsylvania
cases from this Court involving cameras deployed in a suspect’s home on the person of a
CI or other police agent – much less cases where the encounter was expected to take
place elsewhere in public, and entry into the home by the CI resulted from an unexpected
invitation by the defendant. What the parties and the courts below should have found,
however, is a line of cases from this Court arising in the obviously analogous
circumstance of warrantless audio surveillance, jurisprudence spanning over a decade.
Indeed, given that Kean discussed the first case in this line, Commonwealth v. Blystone,
from 1988, the failure to perceive the relevance of these cases is inexplicable. We think
an exploration of the reasoning developed in the cases is therefore helpful in framing the
decisional inquiry here.
[J-20-2014] - 16
In the audiotaping cases, this Court has divided on two distinctly articulated
constitutional viewpoints. On one hand, several Justices have reasoned that a
defendant who voluntarily reveals incriminating information or actions to another person
runs the risk of it being revealed to authorities, whether by oral recounting or by electronic
recording and transmission, and therefore surrenders any reasonable expectation of
privacy in those expressions or actions, wherever they may take place. That position
was represented by the 5-2 majority in Blystone, the Court’s first encounter with this
issue. Other Justices, beginning with the dissenters in Blystone, have maintained that
Pennsylvania’s tradition of providing greater constitutional protection of privacy than does
the Fourth Amendment means, in this area, that any form of governmental or law
enforcement “eavesdropping,” even with the consent of one party (like a CI), cannot be
reasonable. A more modest view of that position achieved majority support, by a 4-3
vote, in Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), where the Court stressed that
the audio recording occurred because police deliberately sent a CI wearing a wire to the
defendant’s home.
Blystone was a capital murder in which the Court upheld the admission at trial of a
recorded conversation between Blystone and a police informant, who had consented to
wear a wire. During that conversation, Blystone incriminated himself in the murder of the
victim. On appeal, Blystone argued that the audio recording, though authorized under
the Wiretap Act and consented to by the informant, nevertheless violated his rights under
Article I, Section 8 of the Pennsylvania Constitution. The majority opinion by Mr. Justice
McDermott noted that the question was settled that one-party consensual interceptions
do not violate the Fourth Amendment, but also stressed that the federal precedents did
not necessarily control the state constitutional analysis, since the states are free to
interpret their charters more broadly. Nevertheless, the Court concluded that the key
[J-20-2014] - 17
inquiry remained the same as under Fourth Amendment principles: i.e., whether the
defendant could claim a “reasonable expectation of privacy” that was violated by the
challenged action: “To determine whether one's activities fall within the right of privacy,
we must examine: first, whether appellant has exhibited an expectation of privacy; and
second, whether that expectation is one that society is prepared to recognize as
reasonable.” 549 A.2d at 87 (citing Katz v. U.S., 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring) (use of “pen register” to listen to and record words spoken by defendant in
phone booth violated expectation of privacy that was both subjective (personal) and
objective (societal)).
The Court cited and quoted a number of U.S. Supreme Court opinions for the
premise that one takes the risk, when disclosing criminal actions or statements to another
person, that the other person may be a CI and may be recording and transmitting the
contents of the conversation to authorities. See U.S. v. White, 401 U.S. 745 (1971)
(plurality) (CI wearing audio recorder and transmitter able to capture drug sales being
arranged: “Inescapably, one contemplating illegal activities must realize and risk that his
companions may be reporting to the police.”); Hoffa v. U.S., 385 U.S. 293 (1966) (no
violation to use testimony of CI who engaged in or overheard conversations in which
defendant implicated himself: no protection for misplaced belief, confidence, or reliance
that one to whom wrongdoing is voluntarily disclosed will not divulge information to law
enforcement); and Lopez v. U.S., 373 U.S. 427 (1963) (no violation to use recording
obtained by CI wearing audio wire when invited into defendant’s office to hear offer of
bribery); see also U.S. v. Lewis, 385 U.S. 206 (1966) (if defendant invites “outsiders” into
home for purpose of illegal narcotics sales, no constitutional violation of privacy; risk is
taken in doing so that one’s “customer” may be a CI).
[J-20-2014] - 18
The Blystone Court emphasized that, under those federal cases, there is no
constitutionally protected expectation of privacy in the context of a voluntary disclosure of
criminal activity to another person:
Basically, the [U.S.] Supreme Court has recognized
the simple fact that a thing remains secret until it is told to
other ears, after which one cannot command its keeping.
What was private is now on other lips and can no longer
belong to the teller. What one chooses to do with another's
secrets may differ from the expectation of the teller, but it is no
longer his secret. How, when, and to whom the confidant
discloses the confidence is his choosing. He may whisper it,
write it, or in modern times immediately broadcast it as he
hears it.
549 A.2d at 87-88. Referring back to the White case, the Blystone Court added that the
plurality there had stressed:
Nor should we be too ready to erect constitutional
barriers to relevant and probative evidence which is also
accurate and reliable. An electronic recording will many
times produce a more reliable rendition of what a defendant
has said than will the unaided memory of a police agent. It
may also be that with the recording in existence it is less likely
that the informant will change his mind, less chance that
threat of injury will suppress unfavorable evidence and less
chance that cross-examination will confound the testimony.
Considerations like these obviously do not favor the
defendant, but we are not prepared to hold that a defendant
who has no constitutional right to exclude the informer's
unaided testimony nevertheless has a Fourth Amendment
privilege against a more accurate version of the events in
question.
Id. at 88 n.18 (quoting White, 401 U.S. at 753). Although reaffirming that the Court was
not bound to follow federal law, the Blystone Court stated that it was “persuaded by the
rationale behind those [U.S. Supreme Court] decisions,” and thus, there was no
“constitutional defect” in the Wiretap Act, which allowed the interception. Id. at 88. The
Blystone majority, then, exemplifies the first approach noted above: in assessing
[J-20-2014] - 19
expectations of privacy, disclosure entails the risk of not only being heard, but of being
reported or recorded.
Mr. Justice Zappala, joined by Mr. Justice Larsen, issued a dissent in Blystone,
articulating a view representing the second approach discussed above: a person’s
confidence in another is unconstitutionally betrayed by electronic “eavesdropping,” even
if the other person consents to wear a wire or otherwise facilitate the interception. The
dissent argued against what it called the majority’s “blind adherence” to the U.S. Supreme
Court’s Fourth Amendment precedent. The dissent argued for elevated protection of
privacy as a “paramount” concern and right under the Pennsylvania Constitution, which
would be little more than a “useless ideal” if it could be waived by the mere fact of having
a conversation with another person. The dissent would have required, prior to the use of
any technological or mechanical means of intercepting communications, that a
disinterested and objective judicial officer determine probable cause and issue a warrant.
As such, the dissent would have struck down the Wiretap Act as unconstitutional to the
extent that it permitted warrantless interception by “any investigative law enforcement
officer or any person acting at the direction or the request of an investigative or law
enforcement officer.” Id. at 103-07 (Zappala, J., dissenting, joined by Larsen, J.).
It is notable that the neither the majority nor the dissent in Blystone couched its
analysis in terms of the location where the conversation was intercepted: indeed, neither
opinion noted where the audio recording took place (i.e., as relevant for present
purposes, whether it was in a physical location where the defendant had a particular
expectation of privacy). Rather, five Justices viewed the fact of Blystone’s disclosure to
the informant as alone defeating any reasonable expectation of privacy in the things he
said, however they were intercepted (by the CI’s ears or by being recorded); and two
[J-20-2014] - 20
Justices maintained an equally basic position that, absent mutual consent or a judicial
warrant, electronic interception and recording violated the Pennsylvania Constitution.
In Commonwealth v. Rodriguez, 548 A.2d 1211 (Pa. 1988), a companion case
decided the same day as Blystone, the same 5-2 majority applied Blystone to somewhat
different circumstances. In Rodriguez, the CI consented to wear a body wire. At the
meeting with appellant and another man in an apartment (it is not clear from the opinion
whether it was appellant’s or someone else’s residence), the CI purchased
methamphetamine from appellant; the transaction was audio-transmitted and recorded
by police, and appellant was ultimately convicted of one count of selling controlled
substances. On appeal, appellant challenged the interception under both the Fourth
Amendment and Article I, Section 8. In a brief majority opinion, Justice McDermott
stated that under U.S. Supreme Court authority such as White and Lopez, which were
both discussed in Blystone, one-party consensual interception does not violate the Fourth
Amendment, and that under Blystone’s approach, nor does such interception (in
conformance with the Wiretap Act) violate Article I, Section 8. 548 A.2d at 1212-14.
The two Blystone dissenters dissented for the reasons set forth in the Blystone dissent.
Id. at 1214 (Zappala, J., joined by Larsen, J., dissenting). As in Blystone, neither opinion
discussed or placed any particular relevance on the location where the recording took
place.
In later cases further described below, however, Justice Zappala, the author of the
Blystone dissent, described and distinguished Blystone as a situation where “the police
were able to obtain an audio tape of Blystone describing the murder to an informant who
along with Blystone was in a truck when police monitored and recorded the conversation.”
Brion, 652 A.2d at 288 (citing Blystone, 549 A.2d at 99); see also Commonwealth v.
Schaeffer, 688 A.2d 1143, 1146 (Pa. 1993) (Opinion in Support of Affirmance (“OISA”) by
[J-20-2014] - 21
Zappala, J., joined by Flaherty and Cappy, JJ.). Mr. Chief Justice Nix, who had joined
the Blystone majority, responded in both Schaeffer and Brion that the locational
distinction so articulated had no basis in the Blystone opinions or analyses. In his
Opinion in Support of Reversal (“OISR”) in Schaeffer, Chief Justice Nix explained:
The [OISA] fails in its attempt to distinguish the instant
facts from those facts in Blystone; Blystone's expectation of
privacy was lost not because Blystone was not in his home,
but because he elected to divulge his participation in the
crime to an informant. Neither the majority nor the dissenting
opinion in Blystone contains any reference to the location of
the conversation, nor do they rely on that factor to decide the
case. Where the [OISA] notes that the Blystone decision
turns on the location of the conversation, it supports that
contention with a citation to the appendix to the opinion
(containing a transcript of Blystone's conversation) rather
than a citation to the bodies of the majority or dissenting
opinion. Indeed, in this case, the [OISA] summarizes the
Blystone holding without any reference to the location of the
conversation, but instead acknowledges that there was “no
constitutional defect in the statute because Blystone had no
reasonable expectation of privacy once he chose to disclose
his confidence to the informant.” Supra, slip op. at 1146
(emphasis added). Thus, the location is not a distinguishing
factor because it was not a consideration in the original
Blystone decision.
688 A.2d at 1148 (OISR by Nix, C.J., joined by Larsen and Papadakos, JJ.) (italics in
original). Accord Brion, 652 A.2d at 290 (Nix, C.J., dissenting, joined by Papadakos and
Castille, JJ.) (same).
In neither case did Justice Zappala respond to Chief Justice Nix. Review of
Blystone itself confirms that the cite to Blystone to support the Schaeffer majority’s
locational distinction was not to either Blystone opinion, but to an Appendix to the
Blystone majority that consisted of a transcript of the recorded conversation, in which the
CI stated: “Wait until I throw this s--- into the back of the truck, man.” There is no
indication elsewhere in the reproduced transcript as to whose truck it was, where they
[J-20-2014] - 22
were, or what they were doing other than eating French fries and apple pie. See
Blystone, 549 A.2d at 94-96 (Appendix).
The Schaeffer case resulted in a per curiam affirmance by operation of law, with
the six-Justice Court divided evenly.9 Justice Zappala’s OISA stated the issue there as:
“whether, under the Pennsylvania Constitution, the police can send a confidential
informer into the home of an individual to electronically record his conversations and
transmit them back to the police.” 688 A.2d at 1144. The police in Schaeffer employed
the CI to make a controlled purchase of marijuana in the defendant’s home; equipped the
CI with a body transmitter; directed him to the defendant’s home to make the purchase,
and then monitored and recorded the ensuing exchange. The OISA, explaining why it
would find the recording unconstitutional under Article I, Section 8, distinguished Blystone
as noted above, i.e., because Blystone did not involve a recorded conversation within the
home. To the OISA, “[i]f nowhere else, an individual must feel secure in his ability to hold
a private conversation within the four walls of his home.” Continuing, the OISA quoted
language from Commonwealth v. Shaw, 383 A.2d 496, 499 (Pa. 1978): “Upon closing the
door of one's home to the outside world, a person may legitimately expect the highest
degree of privacy known to our society.” Schaeffer, 688 A.2d at 1144-47. The OISA
concluded: “[b]ecause the right to privacy in one's domain is sacrosanct, we hold that
Article I, § 8 of the Pennsylvania Constitution precludes the police from sending a
confidential informer into the home of an individual to electronically record his
conversations and transmit them back to the police.” Id. at 1144.
Chief Justice Nix’s OISR tracked the approach in the Blystone majority and the
Court’s extension, without comment, to a private residence in the companion Rodriguez
case. Thus, in the OISR’s view, Schaeffer could have no reasonable expectation of
9 Mr. Justice Montemuro did not participate in either the consideration or decision.
[J-20-2014] - 23
privacy as to being recorded once he exposed his criminal conduct to another person,
regardless of where the disclosure occurred. Id. at 1147-49. Also, as noted above, the
OISR critiqued the OISA’s factual distinction of Blystone as being premised upon a
circumstance not discussed by the competing opinions in Blystone. Id. at 1148. The
OISR then stressed Rodriguez, arguing that even if Rodriguez did not specify that the
apartment was the defendant’s own residence, nonetheless, a majority held in the case
that the Blystone majority rationale permitted surreptitious recording in a residence by a
consenting CI wearing a wire. Finally, the OISR noted that the premise of heightened
protection of privacy in one’s home may also be in question when the “home” is also used
as a place of business to sell a product (marijuana) to members of the general public. Id.
at 1148-49 & n.2.
The Schaeffer OISR was joined by Justices Larsen and Papadakos, each of whom
issued a separate OISR as well, which expanded on the view that the privacy of one’s
home may be compromised when one chooses to conduct business, particularly illicit
business, from the residence. According to Justice Papadakos, “[Schaeffer] did not
close his door to the outside world. Rather, he opened it to customers who came into his
‘drug’ store for the express purpose of purchasing drugs in violation of our drug laws.”
Justice Papadakos added that the use of CIs had become common in law enforcement;
thus, a drug dealer who believed that doing business in his home shielded him from a CI’s
testimony (with or without audio recording) would be, at the least, “foolhardy,” and likely
not able to show an actual subjective expectation of privacy. Id. at 1149-52. On
reargument, the Court, with a new composition, again divided 3-3, resulting in a per
curiam affirmance. Commonwealth v. Schaeffer, 652 A.2d 294 (Pa. 1994).
A year after the original Schaeffer division, a full Court was available to consider a
similar question, however, in Commonwealth v. Brion, as mentioned above. Writing for a
[J-20-2014] - 24
4-3 majority, Justice Zappala tracked the position from his OISA in Schaeffer, and held
that the “sacrosanct” right to privacy in one’s own home, protected by the Pennsylvania
Constitution, barred police from “sending” a CI wearing an audio wire into the home of a
suspected drug dealer, even if the CI was invited inside by the suspect. Brion explained
that the constitutional violation consisted of the deliberate police invasion into the sanctity
of Brion’s home “sending” the consenting wire-wearing CI to the suspect’s home posing
as a customer. At the same time, Brion stressed that the central holding in Blystone
remained the law, explaining that, “[w]e found no constitutional defect in [the Wiretap Act]
because Blystone had no reasonable expectation of privacy once he chose to disclose
his confidence to the informant.” But Brion then reemphasized, as had Schaeffer, the
different calculus where police conduct invades the privacy of the home, repeating the
same dramatic phrasing from Shaw that was emphasized in the Schaeffer OISA: “Upon
closing the door of one's home to the outside world, a person may legitimately expect the
highest degree of privacy known to our society.” 652 A.2d at 287-89.
The Brion majority went on to address, where the Schaeffer OISA had not, Chief
Justice Nix’s argument in Schaeffer that Rodriguez should be controlling. The Brion
majority again focused on privacy in the home: “The issue in Rodriguez, however, was not
framed as it is in the case presently before us, i.e., whether the Blystone rationale extends
to cases involving the surreptitious recording of a conversation in a private residence. It
is unclear whether Rodriguez owned the residence or even whether the conversations in
fact took place in the residence.” Id. at 289 n.2.
Chief Justice Nix, joined by Justice Papadakos and this author, reiterated his
position from Schaeffer, citing directly to Blystone and Rodriguez. To the dissent,
Brion’s expectation of privacy was lost, not because he was in his home when the
conversation was recorded, but because, like Blystone before him, he voluntarily
[J-20-2014] - 25
exposed his criminal conduct to another person who happened to be a wired CI:
“[L]ocation is not a distinguishing factor because it was not a consideration in the original
Blystone decision.” Id. at 290. The dissent also reprised the argument from the
Schaeffer OISR, premised upon Rodriguez, that Blystone’s disclosure/risk paradigm for
analyzing a reasonable expectation of privacy properly focuses on the conduct of the
suspect rather than on geography. And, as in Schaeffer, Chief Justice Nix also
questioned in his Brion dissent whether use of one’s residence as a business, particularly
a criminal enterprise, lessens the otherwise heightened expectation of privacy in one’s
home. 652 A.2d at 290-91.
The same viewpoints were aired again in Commonwealth v. Selby, 688 A.2d 698(Pa. 1997), another drug trafficking case where police “sent” a wired CI into the
defendant’s home for a drug buy. In a short Opinion Announcing the Judgment of a
six-Justice Court (“OAJC”), Chief Justice Flaherty noted that the issue was the same as in
Brion: “[W]hether an informer wearing a consensual wiretap may, without a warrant, enter
another individual's home to record his conversations electronically for use by the police
in an undercover investigation.” The facts were also virtually identical: in the course of
investigating Selby for drug sales activity, police sent an informer wearing a wire into
Selby’s residence in order to make a drug buy. The Selby OAJC came to the same
conclusion as the Brion majority: police may not send a CI into a suspect’s home to
covertly tape statements or conversations without first obtaining a warrant; Justices
Zappala and Cappy joined the OAJC; Mr. Justice Nigro concurred in the result without
writing separately. Id. at 699-700.
This author dissented, reiterating agreement with the Blystone majority/Schaeffer
OISR/federal approach that wherever the encounter occurs, a person who discusses or
displays criminal involvement or actions to another person takes the risk of being
[J-20-2014] - 26
revealed to law enforcement authorities, and thus abandons a reasonable expectation of
privacy in the substance of the communication. Madame Justice Newman also
dissented on this basis and reiterated Chief Justice Nix’s dissenting view from Brion that
using one’s residence for a business enterprise, especially drug dealing, should negate
the traditionally strong constitutional protections found in the home. Id. at 700-03.
This Court’s most recent consideration of one-party consensual recordings arose
in very different factual circumstances and resulted in a 4-3 decision in Commonwealth v.
Rekasie, 778 A.2d 624 (Pa. 2001). In Rekasie, the CI, who was known to the defendant
as a regular drug customer, agreed with police to have his telephone calls to the
defendant’s home intercepted, and also to wear a body wire during an encounter with
Rekasie at the CI’s workplace. Writing for the majority, Mr. Justice Cappy recognized
the ongoing division of the Court over whether to follow the disclosure/risk approach
embodied in Blystone, or the Brion approach, which holds that the home remains a “zone
of privacy” strong enough to shield against purposeful but warrantless police electronic
monitoring of conversations taking place inside.
The Rekasie majority characterized the best approach as a return to the
subjective/objective theory expressed in Justice Harlan’s concurring opinion in Katz,
which was adopted in Blystone: “Justice Harlan set forth a two-fold requirement that a
person: (1) have exhibited an actual (subjective) expectation of privacy; and (2) that the
expectation be one that society is prepared to recognize as reasonable.” The Rekasie
Court concluded that neither absolutist position -- the “disclosure/risk” camp nor the
“sanctity of the home” camp -- must prevail, because there is a middle ground. Rather,
looking to both parts of the Harlan expectation of privacy test allows for “a construct which
in this Commonwealth takes into account the circumstances of the situation surrounding
the disclosure of information as well as the individual’s conduct.” 778 A.2d at 628-31.
[J-20-2014] - 27
Using this construct, the Court concluded that while Rekasie might have a
subjective expectation privacy in phone conversations made to his home line by a known
customer (who Rekasie obviously did not know was a CI), there was no corresponding
objectively reasonable societal basis for the expectation: extension lines can be used to
listen in, and there are many other ways in which phone conversations can be overheard
and recorded. Unlike in Brion, the Rekasie majority continued, this was not a
face-to-face conversation inside the defendant’s home, where a greater privacy interest
could be asserted. Id. at 631-32. Rekasie then tacitly followed Blystone, to the extent
that it distinguished telephone calls from face-to-face encounters in a suspect’s home, by
considering the actions and disclosures of the suspect, rather than the physical location
where the encounter or interception occurred.
In a joining concurrence, this author, joined by Mr. Justice Saylor, reiterated the
view that disclosure and risk should still be part of the calculus, and that Blystone should
still control. Thus, the defendant may have been physically inside his home when he
made or received the subject phone calls, but those calls came from and went outside the
home the moment they were made and received. There was no CI wearing a wire who
walked or was “sent” into the defendant’s living room, and therefore no actual violation of
the accepted sanctity of the home; as such, the concurrence posited, Rekasie could not
even demonstrate a subjective expectation of privacy. Id. at 633-34.
In dissent, Justice Zappala, joined by Chief Justice Flaherty, would have held that
the interception was unconstitutional because it involved warrantless electronic
interception of a communication transmitted from within the defendant’s home. To
Justice Zappala’s thinking, “[o]ur right to privacy does not rise and fall with technology, but
rather is grounded in our state constitution, which has afforded the right to privacy the
utmost protection. . . . Rather than relinquish our privacy rights in the face of modern
[J-20-2014] - 28
innovation, we should fiercely protect them.” Largely on the same grounds, Justice
Nigro dissented as well, joined by the two other dissenters. 778 A.2d at 634-38.
Of course, the major difference between the foregoing line of authority and the
case sub judice is that here we have a silent video recording, as opposed to the
transmission and recording of audio statements and communications at issue in the
Blystone line of cases. The parties, who have not discussed the Blystone line of cases,
obviously make no effort to address whether that difference should impact the
constitutional analysis. Nevertheless, research indicates that although cases specific to
video “searches” are far less prevalent, the audio cases are an appropriate guidepost.
Indeed, this approach has been endorsed by scholarly sources, including the seminal
LaFave treatise on search and seizure. See Wayne R. LaFave, Search and Seizure: A
Treatise on The Fourth Amendment 675-78 (5th ed. 2012) (“What has been said herein
with respect to the use of eavesdropping-wiretapping equipment is generally true as well
as to electronic visual surveillance.”).10 The federal appellate cases the Commonwealth
cites in its brief engage in the same equivalent approach. In U.S. v. Davis, 326 F.3d 361(2d Cir. 2003), the CI was instructed to come to Davis’s house for a drug buy; before the
CI went to the house, law enforcement personnel wired the CI for both audio and video.
The circuit appeals panel saw no basis to distinguish between audio and video,
concluding that the mere fact that video is more detailed and accurate than audio does
not make a difference, because both are simply supplements to the CI’s testimony. Id. at
366-67. In U.S. v. Lee, 359 F.3d 194 (3rd Cir. 2004), federal agents secured equipment
10 This is not to deny that there can be circumstances where videotaping could be far
more intrusive than audiotaping. The invasion of privacy represented by the private
actors in Kean – surreptitiously placing a video camera in a couple’s bedroom – is a
perfect example. That potential distinction, however, is of no particular relevance to the
factual circumstances here.
[J-20-2014] - 29
in a hotel room to record audio and videotape of meetings between the CI and the
defendant regarding bribery and money laundering by boxing promoters; the circuit
appeals panel saw no distinction between what was said by the defendant to the CI and
what he allowed the CI to see. Id. at 199-203. And, in U.S. v. Brathwaite, 458 F.3d 376(5th Cir. 2006), the CI used audio and video devices in her purse to record the
defendant’s counterfeiting of driver’s licenses, checks, and credit cards. The panel
found no “constitutionally relevant difference between audio and video surveillance”
because the defendant forfeited his privacy in what he said and did in the CI’s presence
when he invited the CI into his home. Id. at 380-81 & n.4 (citing both Davis and Lee, as
well as video cases from Sixth, Eighth, Ninth, and Eleventh U.S. Circuit Courts of Appeal).
Thus, under this federal analysis at the Circuit level, it appears logical to examine audio
search precedent in assessing cases involving video surveillance.
As noted, Brion did not purport to disapprove Blystone’s central holding that one
“cannot have a justifiable and constitutionally protected expectation” that what he reveals
or discloses to another person will not be relayed to law enforcement, either by the other
person’s retelling or through electronic means. 549 A.2d at 87-88. The two cases from
this Court in the audio search area which produced majority mandates to suppress the
audiotape – the majority opinion in Brion and the OAJC in Selby (where the fourth vote for
the mandate was via a CIR vote) – emphasized that police had deliberately “sent” the CI
to the defendant’s residence wearing a wire; the point in those cases was that deliberate
police conduct, aimed at the home, had led to the interception and ultimate revelation of
the defendant’s criminal conduct.
That did not occur here; and given the Court’s precedent, we think this factual
distinction makes all the constitutional difference. Indeed, this case involves less
purposeful police intrusion into the home than in Rekasie, where police recorded the CI’s
[J-20-2014] - 30
phone calls to the suspect’s home. Thus, we would find that this case is properly
controlled by the focus in Blystone and Rekasie upon the deliberate nature of police
conduct. Appellee presented no evidence of such conduct at the suppression hearing,
and the Commonwealth’s evidence to the contrary was uncontroverted. Far from
knowingly and purposefully sending a CI equipped with a hidden camera into the
suspect’s home, police here sent the camera-equipped CI to a public street corner
designated by appellee’s conspirator in order to make a drug buy from the conspirator’s
“runner,” appellee.11 But appellee did not make the deal on the street corner. Instead,
appellee invited the CI into his car, drove the CI to his home, invited the CI inside, and
conducted the drug sale. These decisions and movements were controlled by appellee,
not by the CI or the police: it was appellee’s vehicle and appellee’s home, and he elected
to expose both to the CI. Moreover, there is no evidence in this record – nor has there
been any argument by appellee here or below -- of manipulation or maneuvering on the
part of police to “defeat” appellee’s heightened expectation of privacy in his home.
Indeed, Corporal Rubano specifically testified that he expected the drug sale to occur on
the street corner designated by Lowe, and there is no indication in the record that the
police knew or expected otherwise. N.T., 6/6/12, at 43.
Brion also relied upon dramatic language from Shaw: “Upon closing the door of
one's home to the outside world, a person may legitimately expect the highest degree of
privacy known to our society.” But, in this case, we would reason that appellee did not
11 There is no dispute that video surveillance of a purely public area such as a street
corner implicates no special constitutional concerns. See LaFave, Search and Seizure, at
676 (“It is no search to videotape what a police officer is observing in a plain view
situation, nor is any justified expectation of privacy violated by the videotaping of activity
occurring in full public view.”) (footnotes omitted).
[J-20-2014] - 31
close the door to the outside world. Both the CI and the hidden camera made their way
to the front door of appellee’s home, across the threshold, and into the home only as a
result of appellee’s invitation. At that point, appellee harbored no objective expectation
that what the CI observed in the home, and what appellee chose to reveal to the CI, would
remain sacrosanct.
All that is left is the fact of the hidden camera, which better and more reliably
memorialized the details of the drug transaction, which had been expected to occur on a
public street corner and which the CI would have been free to disclose to authorities.
Blystone, 549 A.2d at 88 n.18 (quoting White, 401 U.S. at 753). But, the camera made
its way into the home by way of the exigency of appellee’s unexpected transportation of
the CI to, and invitation into, the home; there was no intervening opportunity during this
fluid chain of events for the police to secure a warrant. As such, we would conclude that
there is no principled basis for exclusion of the evidence as a constitutional matter.
Our approach to this appeal should not be read as if it turns upon police “good
faith,” for it does not. In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), evidence
was suppressed despite good faith reliance by the police upon a duly-issued warrant,
because the magistrate had erred in the bedrock assessment of probable cause, and the
Court determined that the intrusion into privacy resulting from that governmental error
warranted suppression since deterrence of police conduct alone is not the sole rationale
for the exclusionary rule in Pennsylvania. From the perspective of the person suffering
the intrusion, it little matters if the mistake is that of the judge issuing the warrant or that of
the officer executing it. As we have explained, cases like Brion focused upon police
conduct designed and intended to intrude upon – or to invite an intrusion upon -- the
privacy of the home.12 In this case, unlike in Edmunds or in Brion, there is no such
12 The first paragraph in the Brion majority opinion reads, verbatim, as follows:
(continuedM)
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underlying error by police or magistrate; the “intrusion” was at appellee’s invitation. The
unexpected invitation by appellee was an exigency that prevented the ability of the police
to secure a warrant, and the consequences should be visited upon him.
The Justices supporting affirmance do not dispute that the CI’s entry into the home
at appellee’s invitation was lawful: nor do they dispute that the CI’s observations – what
the CI saw and what he heard appellee say – would not be subject to suppression. The
line they draw is at the use of the hidden camera. The lead Opinion in Support of
Affirmance suggests that failing to require suppression in this case amounts to a good
faith exception to Article I, Section 8 (insofar as that opinion would view suppression in
these circumstances to be a good faith exception to the Brion majority’s broad language
concerning the sanctity of the home). But, as noted, our approach would not adopt a
good faith exception to the exclusionary rule.
Article I, Section 8, like the Fourth Amendment, protects the citizenry against
“unreasonable” searches and seizures. See also, e.g., Commonwealth v. Revere, 888
(Mcontinued)
The controlling question in this appeal is whether,
under the Pennsylvania Constitution, the police can send a
confidential informer into the home of an individual to
electronically record his conversations and transmit them
back to the police. Because the right to privacy in one's
domain is sacrosanct, we hold that Article I, § 8 of the
Pennsylvania Constitution precludes the police from sending
a confidential informer into the home of an individual to
electronically record his conversations and transmit them
back to the police. The order of the Superior Court is
reversed.
652 A.2d at 287 (emphasis added). The sanctity of the home was not the entirety of the
analysis, nor could it responsibly be. Indeed, if the sanctity of the home were all that
mattered, the CI’s observations – upon being invited into the home by appellee – would
be subject to suppression.
[J-20-2014] - 33
A.2d 694, 706-07 (Pa. 2005); In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). Unless
application of an exclusionary rule is to be arbitrary, it must be in response to some
unreasonable or improper governmental conduct. In the seminal case of Edmunds, for
example, the police may have acted in good faith upon the warrant, but the warrant was
itself invalid because it was not supported by probable cause; a judicial branch officer
erred, causing an unlawful intrusion. In Edmunds, the Court stressed the unlawful
government conduct:
[G]iven the strong right of privacy which inheres in Article [I],
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. 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.
586 A.2d at 901 (internal citations omitted) (emphasis added). Accord Commonwealth
v. Johnson, 86 A.3d 182, 183, 187 (Pa. 2014) (suppression proper under Article I,
Section 8 because warrant authorizing arrest invalid (expired)).
In this case, in our view, given the exigent circumstances, and given that there was
no underlying unlawful governmental conduct, such as “sending” a CI into a citizen’s
home for the purpose of recording a conversation, no constitutional violation occurred.
We would reverse.
Messrs. Justice Eakin and Stevens join this opinion.
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