Commonwealth v. Alexander, K., Aplt.

[J-51-2020] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 30 EAP 2019
:
Appellee : Appeal from the Judgment of
: Superior Court entered on March 5,
: 2019 at No. 3246 EDA 2017
v. : affirming the Judgment of Sentence
: entered on September 12, 2017 in
: the Court of Common Pleas,
KEITH ALEXANDER, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0005971-
Appellant : 2016.
:
: SUBMITTED: April 28, 2020
DISSENTING OPINION
JUSTICE MUNDY DECIDED: December 22, 2020
I respectfully dissent from the majority’s opinion, as I would decline to overrule this
Court’s decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). In my opinion, the
majority declines to honor the tenets of stare decisis, instead opting to impart its desired
outcome in the face of a clear rule of law. Further, I do not endorse the Edmunds analysis
adopted by the majority, as I would continue to follow the analysis offered by the lead
opinion in Gary.
In Gary, Justice McCaffery, along with two other Justices, concluded that (1) Article
I, Section 8 of the Pennsylvania Constitution provides no greater protection than does the
Fourth Amendment of the United States Constitution with regard to warrantless searches
of automobiles, and (2) that under our state charter, the only prerequisite for a warrantless
search of an automobile that is needed is probable cause—no exigency beyond the
inherent mobility of a vehicle is needed. See Gary, 91 A.3d at 124, 138. Then-Justice
Saylor authored a concurring opinion.
Plainly, then-Justice Saylor’s concurrence espoused the prevailing viewpoint
offered by the three other Justices. Specifically he stated his agreement with the lead
Justices in adopting the federal automobile exception. See Gary, 91 A.3d at 138 - 9
(“Although I have some reservations, for the sake of certainty and consistency, I join the
lead Justices in adopting the federal automobile exception.”). What the concurrence did
not offer is an alternative basis pursuant to which this Court should resolve the underlying
issues. Instead of recognizing the obvious meaning of this decision, the majority offers a
hair-splitting analysis that subverts the clear meaning of the majority of Justices who
considered and decided Gary. See, e.g., Majority Op. at 32-34 (“We believe that [then-
Justice Saylor’s] concurring opinion, while certainly reflecting a carefully considered view
based on this Court’s difficulties in applying the exception[,] does nothing more than
establish the narrowest rationale for the result in Gary: the bright-line federal exception
provides certainty and consistency in application.”). In this way, I disagree with the
majority’s treatment of Gary, its precedential value, and the decision’s clear and obvious
import. Rather than presenting this Court with an “unusual circumstance,” Concurring Op.
(Baer, J.) at 2, Gary’s holding requires our adherence.
Stare decisis is a “foundation stone of the rule of law.” Michigan v. Bay Mills Indian
Community, 572 U.S. 782 (Pa. 2014). It “maintains that for purposes of certainty and
stability in the law, ‘a conclusion reached in one case should be applied to those which
follow, if the facts are substantially the same.” Stilp v. Commonwealth, 905 A.2d 918,
966 - 67 (Pa. 2006) (quoting Burke v. Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa.
1953)). It commands our respect for the prior decisions of this Court, and the legal rules
contained therein. Stilp, 905 A.2d at 954 n. 31. Further, stare decisis demands we apply
[J-51-2020] [MO: Donohue, J.] - 2
our closely-decided precedents as equally as we do our unanimously decided cases. See
Kimble v. Marvel Entertainment, LLC 576 U.S. 466 (2015) (“[I]t is not alone sufficient that
we would decide a case differently now than we did then.”). When we become untethered
from our previous decisions, we instantly implicate this court’s credibility and our ability to
effectively adjudicate the many types of cases upon which litigants look to us for
guidance.1
Abandoning a precedential decision is never a small matter. I echo my colleagues’
concerns that the majority’s decision is rooted in its sincere belief that Gary was wrongly
decided. Dissenting Op. (Dougherty, J.) at 3; Dissenting Op. (Saylor, C.J.) at 3. It
damages our rule of law to disregard the language of a precedential decision simply
because the opportunity now presents itself. The reality inherent in adjudicating important
matters in this Commonwealth is that the law does not always follow one’s desired course.
Inevitably, the law will reflect policies and procedures that do not seem to fit the best
interests of the Commonwealth. See Maloney v. Valley Med. Facilities, Inc., 984 A.2d
478, 489-90 (Pa. 2009) (“[The law] develops incrementally, within the confines of the
circumstances of cases as they come before the Court.”). In my opinion, it is important
to respect the deliberative process undertaken by previous panels, as well as the
conclusions at which they arrived. In this respect, it should be of no moment that Gary is
a recent decision, or that it has not been relied upon for a longer period of time. These
considerations are not our goalposts, nor should they be. Rather, this Court must be
guided by the reasoned decision arrived at by a majority of the learned individuals of this
Court.
1Justice Dougherty’s dissenting opinion offers a cogent overview of the principles of stare
decisis, and I subscribe to his analysis regarding the foundational aspects of what our law
prescribes.
[J-51-2020] [MO: Donohue, J.] - 3
In its argument, the Commonwealth asserts that this Court is not “writing on a blank
slate”, and implores this Court to follow the tenets of stare decisis. Commonwealth’s Brief
at 15. It further points out that since none of our recognized reasons for revisiting
precedent exist, throwing our law back into flux would “breed cynicism and create
uncertainty.” Id. at 18. It is true that our strongly held preference for stare decisis is not
absolute. See Payne v. Tennessee, 501 U.S. 808 (1991) (“Stare decisis is not an
inexorable command; rather it is a principle of policy and not a mechanical formula of
adherence to the latest decision.”) (internal citations omitted). Our laws should be flexible
enough to “[permit] adjustment and development. . ., recognizing that precedent is not
infallible and judicial honesty demands corrective action in appropriate cases.” Olin
Mathieson C. Corp. v. White C. Stores, 199 A.2d 266, 268 (Pa. 1964). As we have stated,
this Court must not hesitate to change directions where it is truly warranted. See, e.g.,
Tincher v. Omega Flex, Inc., 104 A.3d 328, 352 (Pa. 2014). However, our judgment
should inherently encompass the wisdom to know when those situations arise. I
respectfully submit this does not fall into that category, as I am persuaded by the
Commonwealth’s rightful cause for concern.
While it is true that constitutional matters require special consideration under our
doctrine, Gary pronounced an appropriate and cognizable rule of law. As was
persuasively argued by the Commonwealth, I would uphold our rule of law and continue
to apply Gary’s bright-line ruling. See, e.g., Dickerson v. U.S., 530 U.S. 428 (2000)
(“While stare decisis is not inexorable command, particularly when interpreting the
Constitution, doctrine of stare decisis carries such persuasive force, even in constitutional
cases, that departure from precedent must be supported by some special justification.”)
(internal citations omitted). Specifically, I find no fault in the Edmunds analysis endorsed
by the majority of Justices.
[J-51-2020] [MO: Donohue, J.] - 4
Under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), we are charged with
first considering the text of the Commonwealth’s constitutional provisions. Edmunds, 586
A.2d at 895. As was pointed out by the majority, our constitution states that “[t]he people
shall be secure in their persons, houses, papers, and possessions from unreasonable
searches and seizures.” Pa. Const., Art. I, Sec. 8. The Fourth Amendment recognizes
the right of the people to be secure in their “effects.” U.S. Const. amend IV. I join Chief
Justice Saylor in concluding that the protections offered by both charters are one in the
same, as evidenced by both the text of both passages, as well as this Court’s decisions.
On multiple occasions, we have pointed out the near identicalness of both passages, and
the requisite treatment both require. See e.g., Commonwealth v. Russo, 934 A.2d 1199(Pa. 2007) (Interpreting Article I, Section 8 the same as the Fourth Amendment in the
course of considering the extent of the open fields doctrine); Commonwealth v. Gray, 503
A.2d 921, 926 (Pa. 1985) (“[T]here is no substantial textual difference between the Fourth
Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution that would require us to expand the protections afforded under the federal
document.”).
In ignoring the Edmunds analysis offered in Gary, the majority offers an expansive
view of the privacy concerns that our charter allegedly envelops. However, like then-
Justice Saylor and the majority of Justices in Gary, the most persuasive evidence to me
is the sheer congruity of both passages. The majority dismisses this analysis, saying “we
must consider our charter as a whole in terms of establishing a set of normative values
that limits the government’s authority to search without a warrant, as opposed to the
dissent’s view, which attempts to divine the framers’ intent based solely on a textual
comparison of Article I, Section 8 and the Fourth Amendment.” Majority Op. at 49. I
respectfully suggest that our normative values are derived from the very words we use.
[J-51-2020] [MO: Donohue, J.] - 5
As the majority of Justices in Gary decided, we need not look past the text of both charters
to understand and apply their meaning.
Moreover, under the fourth Edmunds factor, we are charged with evaluating the
policy considerations underlying our decisions, including issues of state and local
concern. Edmunds, 586 A.2d at 895. The majority adopts Justice Todd’s dissent in Gary,
which, in regards to this portion of the Edmunds analysis, concluded that the lead decision
failed to adequately acknowledge the role technological advancements has played in
terms of securing a warrant. See Gary, 91 A.3d at 154 – 160. The majority opinion cites
Justice Todd’s dissent specifically to say that “police officers [are] eminently capable as
trained professionals of making a basic assessment of whether it is reasonably
practicable for them to seek a warrant, under all of the circumstances existing at the time
they wish to search an automobile.” Majority Op. at 20 (citing Gary, 91 A.3d at 159).
While the advent of technology has certainly transformed the ways in which courts
envision the warrant securing process, I believe it best to defer to the Commonwealth
regarding its expertise in terms of policing. As evidenced by this Court’s own fractured
viewpoints, it can be difficult to advance and maintain a clear rule of law that properly
balances effective law enforcement with individual liberties. This discord is a living reality
for those who are charged with enforcing our laws, oftentimes in fast-moving and
imprecise scenarios. In my opinion, the majority’s decision does not adequately
contemplate the stated needs of law enforcement; rather, it adopts a viewpoint that merely
shifts, yet again, the decision-laden police officer’s inquiry. I respectfully submit Gary’s
holding should stand, in part because it offered a bright-line rule already in effect
throughout this Commonwealth, and because it deferred to the needs of those we entrust
with the difficult job of policing.
[J-51-2020] [MO: Donohue, J.] - 6
By failing to honor Gary, the majority’s decision imposes upon the principles of
stare decisis and impedes the credibility over which we preside the important issues
before us. In so doing, it throws into impunity an Edmunds analysis that properly
contemplated the levels of federalism dictated by our state charter and the United States
Constitution. Based on these considerations, I respectfully dissent.
[J-51-2020] [MO: Donohue, J.] - 7