Argued April 8, 2014
Appeal from the Order of the Superior Court entered February 27, 2013 at No. 1046 WDA 2012, affirming the Order of the Court of Common Pleas of Mercer County entered June 8, 2012 at No. CP-43-CR-0001291-2011. Appeal allowed July 31, 2013 at 152 WAL 2013. Trial Court Judge: John C. Reed. Intermediate Court Judges: Christine Donohue, Jacqueline O. Shogan, David N. Wecht, JJ.
For Commonwealth of Pennsylvania, APPELLANT: Cynthia Ann Gilkey, Esq. Mercer County District Attorney's Office; Mary Ann Odem, Esq. Mercer County District Attorney's Office.
Gerald M. Dunnavant, APPELLEE: Charles F. Gilchrest, Esq.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ., MR. CHIEF JUSTICE CASTILLE, Messrs. Justice Eakin and Stevens join this opinion., MADAME JUSTICE TODD, Mr. Justice Baer joins this opinion., MR. JUSTICE STEVENS.
AND NOW, this 29th day of December, 2014, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Justice Saylor files an opinion in support of affirmance in which Mr. Justice Baer and Madame Justice Todd join.
Madame Justice Todd files an opinion in support of affirmance in which Mr. Justice Baer joins.
Mr. Chief Justice Castille files an opinion in support of reversal in which Messrs. Justice Eakin and Stevens join.
Mr. Justice Stevens files an opinion in support of reversal.
OPINION IN SUPPORT OF AFFIRMANCE
MR. SAYLOR, JUSTICE
We would affirm the Superior Court's order, as we would find that, under this Court's precedent, Appellee was entitled to suppression of the videotape surreptitiously created within his home.
In our view, the decision by this Court that bears most directly on the present case is Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), which granted suppression where a confidential informant secretly audiotaped the events inside the defendant's home. The Justices favoring reversal interpret Brion as emphasizing the impermissibility of intentional police conduct in sending a confidential informant into a suspect's home to record events that transpire inside. See Opinion in Support of Reversal, slip op. at 31. Although the Brion Court highlighted such conduct, the decision's central holding was predicated on the distinction between the privacy inherent in one's home and the lack of privacy attendant to locations outside the home. Indeed, it is on this basis that the Court distinguished prior decisions, explaining:
Unlike both [Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988)] and [Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989)], the instant case involves conversations taking place in the sanctity of one's home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (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." (Citations omitted.)
Brion, 539 A.2d at 260, 652 A.2d at 289 (footnote omitted).
The opinion supporting reversal distinguishes the present dispute from Brion on the basis that, here, the confidential informant was not sent by the police into the home, but instead was unexpectedly invited into the home. It concludes that Appellee
therefore " did not close the door to the outside world," because " the [confidential informant] and the hidden camera made their way . . . into the home only as a result of appellee's invitation." Opinion in Support of Reversal, slip op. at 32. The opinion supporting reversal indicates that this " makes all the constitutional difference." Id. at 31.
We would note, however, that, in Brion, there is no suggestion that the informant entered the residence against the will of its occupant. Thus, in that matter it may equally be said that the defendant did not close the door to the outside world, and that the informant and the recording device made their way into the residence as a result of the occupant's wish to sell drugs to the informant. Hence, a present holding that suppression is not required, when read in conjunction with Brion, would signify that the determining factor of constitutional significance is, in effect, whether the officers involved in setting up a controlled drug purchase subjectively intend that the transaction should occur inside or outside the suspect's home.
In our view, such subjective intentions on the part of the authorities are of little relevance to the constitutional analysis. Of more relevance is the occupant's expectation of privacy in his home (along with society's recognition of the reasonableness of that expectation), and the fact that the confidential informant physically entered the home to secretly videotape the transaction. See
Brion, 539 Pa. at 262, 652 A.2d at 289; Commonwealth v. Rekasie, 566 Pa. 85, 101, 778 A.2d 624, 634 (2001) (Castille, J., concurring, joined by Saylor, J.) (agreeing that a police wiretap did not violate Article I, Section 8, because " unlike Brion, the recording/seizure of the oral statements did not result from the physical entry of a government agent into the defendant's home" ). In this regard, we believe that failure to require suppression in the present circumstances would establish what is tantamount to a good-faith exception to Brion's holding, whereas this Court has generally found that that, due to the primacy of the privacy interests it protects, Article I, Section 8 does not encompass exceptions based on the good faith of the police. See, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).
Accordingly, we would conclude that, unless and until Brion is overruled, individuals in Appellee's position are entitled to suppression of secretly-made video recordings capturing events transpiring within the confines of their home, regardless of whether the police originally expected and/or intended that those events would occur outside the residence.
Mr. Justice Baer and Madame Justice Todd join this opinion in support of affirmance.
OPINION IN SUPPORT OF AFFIRMANCE
MADAME JUSTICE TODD
I join the Opinion in Support of Affirmance (" OISA" ) which underscores that the place in which this warrantless intrusion and secret video recordation by the confidential informant occurred -- the interior of Appellee's home -- was the critical factor in rendering this conduct a constitutional violation. The inside of one's home is the area in which every person has the greatest expectation of privacy and, thus, it is an area entitled to the maximum constitutional protection. See Commonwealth v. Bricker, 542 Pa. 234, 666 A.2d 257, 261 (Pa. 1995) (" We have long recognized
the sanctity of the home in this Commonwealth as we have repeatedly stated that '[u]pon closing the door to one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.'" (quoting Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287, 289 (Pa. 1994), in turn quoting Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496, 499 (Pa. 1978)); Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (Pa. 1994) (" In a private home, 'searches and seizures without a warrant are presumptively unreasonable.'" (quoting Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)). I also am in accord with the OISA's view that the subjective motivations of the police regarding their direction of the actions of the confidential informant were irrelevant to the determination of whether the informant -- while acting as an agent of the state -- violated the constitution.
Consequently, I agree with the OISA's ultimate conclusion that the warrantless video recording made inside of Appellee's home must be suppressed in accordance with our decision in Brion, which established that a person does not forfeit the strong privacy interest he or she has in their home or residence just by allowing an individual to come inside. Indeed, I find the nature of the government sanctioned activity at issue here -- videotaping -- to pose an even greater risk of unjustified invasion of the right of privacy than the audiotaping at issue in Brion. A hidden video camera records, in minute detail, all visible aspects of the interior of the home, its contents, and the activities of any of its occupants which happen to fall within the camera's field of view. Thus, affixed to the body of an undercover informant who enters a home, such a device will indiscriminately capture all that it sees, which includes the legitimate and constitutionally protected activities of every individual who happens to be present therein, as well as a host of intimate details about the lives of those who reside there, regardless of whether they have any relevance to a legitimate investigative purpose.
Because this type of surreptitious videotaping constitutes a greater risk of invasion of the strong privacy interest every individual possesses in his or her home, the question of when such videotaping is constitutionally permissible, and, also, what legal limits to such videotaping are appropriate to ensure that it does not encompass personal subjects and areas which are irrelevant to legitimate investigative purposes, is a matter to be considered by a neutral magistrate upon application for a warrant before the videotaping occurs. See Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (" Where . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." ).
Accordingly, I would affirm.
Mr. Justice Baer joins this opinion.
OPINION IN SUPPORT OF REVERSAL
MR. CHIEF JUSTICE CASTILLE
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, 382 Pa.Super. 587, 556 A.2d 374 (Pa. Super. 1989), appeal denied, 525 Pa. 596, 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. 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, 519 Pa. 450, 549 A.2d 81 (Pa. 1988), aff'd on other grounds, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (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. 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 ...