Commonwealth v. Britton, S., Aplt

[J-40-2019] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 55 MAP 2018
:
Appellee : Appeal from the Order of Superior
: Court at No. 1786 EDA 2017 dated
: March 6, 2018 Affirming the
v. : Judgment of Sentence of the
: Monroe County Court of Common
: Pleas, Criminal Division, at No. CP-
STACY BRITTON, : 45-CR-0002192-2015 dated
: January 6, 2017.
Appellant :
: ARGUED: November 19, 2019

CONCURRING OPINION

JUSTICE WECHT DECIDED: April 22, 2020
Our Commonwealth’s Constitution proudly proclaims:

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.
PA. CONST. art. I, § 8. “[T]he survival of the language now employed in Article I, section

8 through over 200 years of profound change in other areas demonstrates that the

paramount concern for privacy first adopted as a part of our organic law in 1776 continues

to enjoy the mandate of the people of this Commonwealth.” Commonwealth v. Sell, 470

A.2d 457, 467 (Pa. 1983); see also PA. CONST. of 1776, Declaration of Rights, § 10.

The Majority answers the narrow question of whether California law enforcement

officers acted as agents of Pennsylvania police officers, but concludes that “examination

of whether any Pennsylvania specific constitutional or statutory protections extended to
[Stacy Britton’s] situation is unwarranted.” Maj. Op. at 1-2. In doing so, however, the

Majority effectively undermines the freedom of privacy protected by Article I, Section 8

and implicitly revives a doctrine that the Supreme Court of the United States extinguished

sixty years ago. I ultimately concur with the Majority’s affirmance of the Superior Court’s

decision because I believe that the trial court’s erroneous decision not to suppress certain

surreptitious recordings made by California detectives was harmless. But rather than

adopt the Majority’s agency analysis, I would find that the protections of the Pennsylvania

Constitution apply to Pennsylvania prosecutions in Pennsylvania courts.

I. The Federal Silver Platter Doctrine

Although the United States Supreme Court hinted at the existence of an

exclusionary remedy for violations of the Fourth Amendment as early as the nineteenth

century, see Boyd v. United States, 116 U.S. 616 (1886), the High Court definitively

adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914):

If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his right to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution.
Id. at 393. Thus, in all federal criminal prosecutions, federal courts were to exclude

evidence that the government obtained in violation of the Fourth Amendment. However,

the Supreme Court had not yet applied the protections of the Fourth Amendment to the

states via the Due Process Clause of the Fourteenth Amendment. Id. at 398 (“[T]he 4th

Amendment is not directed to individual misconduct of [state] officials. Its limitations

reach the Federal government and its agencies.”), overruled by Wolf v. Colorado, 338

U.S. 25, 27-28 (1949).

In refusing to subject state courts to the constraints of the Fourth Amendment, the

Supreme Court created what came to be known as the “silver platter” doctrine. In Weeks,

[J-40-2019] [MO: Baer, J.] - 2
some of the evidence presented by the prosecution in federal court was obtained by state

law enforcement officials. And while the Court suppressed evidence that federal

authorities acquired in violation of the Fourth Amendment, the Court wrote that “[a]s to

the papers and property seized by the [state] policement [sic], it does not appear that they

acted under any claim of Federal authority such as would make the amendment

applicable to such unauthorized seizures.” Weeks, 232 U.S. at 398. Thus, in future

federal prosecutions, state law enforcement could obtain evidence in violation of the

Fourth Amendment and present that evidence to federal officials on a “silver platter” to

use in federal court.

With Prohibition coming into effect, local and federal authorities increasingly had

concurrent jurisdiction over particular crimes. See Wayne A. Logan, Dirty Silver Platters:

The Enduring Challenge of Intergovernmental Investigative Illegality, 99 IOWA L. REV. 293,

299-300 (2013). Federal law enforcement officers figured out that they could easily

bypass the exclusionary rule by relying upon local police investigating the same crimes.

See id. at 300 (quoting Thomas Dewey as stating that “as a Federal prosecutor we had

to rely on the evidence procured by the unhampered police of the State of New York”).

Realizing that it had a problem on its hands, the Supreme Court attempted to lay

down a rule to adjudicate what level of involvement by federal authorities necessitated

application of the Fourth Amendment in a federal prosecution. In a way, the Court created

a form of agency analysis, though not one based upon traditional agency law. In Byars

v. United States, 273 U.S. 28 (1927), the Court found that “mere participation in a state

search of one who is a federal officer does not render it a federal undertaking.” Id. at 32.

However, the Court instructed trial courts to “be vigilant to scrutinize the attendant facts

with an eye to detect and a hand to prevent violations of the Constitution by circuitous

and indirect methods.” Id.; see also id. at 33-34 (warning that violations of the Fourth

[J-40-2019] [MO: Baer, J.] - 3
Amendment should not be “impaired by judicial sanction of equivocal methods, which,

regarded superficially, may seem to escape the challenge of illegality but which, in reality,

strike at the substance of the constitutional right”). Byars itself involved a federal agent

who “participate[d] as a federal enforcement officer” in a state investigation. Id. at 32.

The Court concluded that this rendered the search “in substance and effect . . . a joint

operation of the local and federal officers,” and, thus, suppression was warranted. Id. at

33.

The next term, the Supreme Court went even further. In Gambino v. United States,

275 U.S. 310 (1927), only state law enforcement officials were present “at the time of the

arrest and search.” Id. at 316. But the Court found that evidence from that search must

be suppressed because “[t]he wrongful arrest, search, and seizure were made solely on

behalf of the United States.” Id. This ruling came despite the fact that the state “troopers

were not shown to have acted under the directions of the federal officials in making the

arrest and seizure.” Id. It was enough that a federal prosecution took place, effectively

“ratif[ying] . . . the arrest, search, and seizure made by the [state] troopers on behalf of

the United States.” Id. 317. The Court was sure to distinguish Gambino from other cases

in which evidence obtained by state law enforcement officials was not suppressed

because Gambino, again, involved a seizure “made solely for the purpose of aiding the

United States in the enforcement of its laws.” Id.1

In 1949, the Supreme Court applied the protections of the Fourth Amendment to

state prosecutions in Wolf, but did not incorporate the corresponding exclusionary rule.

1 Notably, the Supreme Court also made this ruling even though “[t]he record . . .
d[id] not show that the relation between the state troopers and the federal agencies for
prohibition enforcement was called by counsel to the attention of the court.” Gambino,
275 U.S. at 319. The Court nonetheless suppressed the evidence because “the
conviction . . . rest[ed] wholly upon evidence obtained by invasion of [the defendants’]
constitutional rights.” Id.

[J-40-2019] [MO: Baer, J.] - 4
Wolf, 338 U.S. at 27-28, 33. In an opinion handed down the same day, the Court punted

on the question of whether the silver platter doctrine should be overturned and instead

applied Byars and its progeny. See Lustig v. United States, 338 U.S. 74, 79 (1949)

(plurality) (“Where there is participation on the part of federal officers it is not necessary

to consider what would be the result if the search had been conducted entirely by State

officers.”).

In Lustig, a plurality of the Court found that a federal law enforcement officer’s

participation in a state investigation was sufficient to invoke suppression in federal court.

Although the federal officer did not participate in the investigation from the beginning or

perform the actual search, the Court found that “[t]o differentiate between participation

from the beginning of an illegal search and joining it before it had run its course, would be

to draw too find a line in the application of the prohibition of the Fourth Amendment.” Id.

at 78 (plurality). “The crux of [the Byars] doctrine is that a search is a search by a federal

official if he had a hand in it; it is not a search by a federal official if evidence secured by

state authorities is turned over to the federal authorities on a silver platter.” Id. at 78-79

(plurality); see also id. at 79 (plurality) (“The fact that state officers preceded [the federal

officer] in breach of the rights of privacy does not negative the legal significance of this

collaboration in the illegal enterprise before it had run its course.”).

Even with these attempts to clarify when the level of cooperation was sufficient to

invoke the protections of the Fourth Amendment, the doctrine was a mess. One

commentator has described Byars as “rais[ing] more questions than it answered.” James

W. Diehm, New Federalism and Constitutional Criminal Procedure: Are We Repeating

the Mistakes of the Past?, 55 MD. L. REV. 223, 227 (1996). “Not surprisingly, subsequent

decisions were confusing and, in many cases, contradictory.” Id. After Wolf, the writing

was on the wall. The disjunction between incorporation of the Fourth Amendment and

[J-40-2019] [MO: Baer, J.] - 5
the silver platter doctrine could not last. See Hanna v. United States, 260 F.2d 723, 726

(D.C. Cir. 1958).

In 1960, the Supreme Court stepped in and overturned the silver platter doctrine.

The Court found that the doctrine had “engender[ed] practical difficulties,” and “difficult

and unpredictable . . . application[s] to concrete cases.” Elkins v. United States, 364 U.S.

206, 211, 212 (1960). With regard to the “recurring question” of determining the level of

federal involvement, lower “federal courts did not find themselves in complete harmony,

nor even internally self-consistent.” Id. at 212. Given these difficulties, the Court invoked

its “supervisory power over the administration of criminal justice in federal courts,” id. at

216, and found that “[t]o the victim” of the Fourth Amendment violation “it matters not

whether his constitutional right has been invaded by a federal agent or by a state officer.”

Id. at 215. A violation was a violation, and federal courts could not permit the introduction

of evidence in violation of the Fourth Amendment, no matter its source.

Finally, the Supreme Court made this ruling even as it was in the midst of shifting

its rationale for the underlying exclusionary rule. Originally, the exclusionary rule was

conceived as an integral part of the Fourth Amendment itself. See Silverthorne Lumber

Co., Inc. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.) (finding that attempts to

use information gleaned from an illegal search “reduces the Fourth Amendment to a form

of words”); see also Tom Quigley, Comment, Do Silver Platters Have a Place in State-

Federal Relations? Using Illegally Obtained Evidence in Criminal Prosecutions, 20 ARIZ.

ST. L.J. 285, 296 (1988) (“Clearly, the Silverthorne Court based exclusion solely on the

[F]ourth [A]mendment.”).

But things began to change in Wolf, where the Supreme Court called the rule “an

effective way of deterring unreasonable searches,” Wolf, 338 U.S. at 31, importing a new

reason for the exclusionary rule. See also Gerald H. Galler, The Exclusion of Illegal State

[J-40-2019] [MO: Baer, J.] - 6
Evidence in Federal Courts, 49 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 455, 457 n.8 (1958-

59) (“Until the Wolf case the federal exclusion rule was treated in the federal courts as

being an integral part of the [F]ourth [A]mendment and not a rule of evidence enacted to

enforce it.”). Similarly, in Elkins, the Court wrote that “[t]he rule is calculated to prevent,

not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in

the only effectively available way—by removing the incentive to disregard it.” Elkins, 364

U.S. at 217. And the High Court’s seminal decision in Mapp v. Ohio, 367 U.S. 643 (1961),

applying the exclusionary rule to state prosecutions, recognized the same. Id. at 656; but

see id. at 650 (calling the exclusionary rule “part and parcel of the Fourth Amendment’s

limitations upon federal encroachment of individual privacy”); Elkins, 364 U.S. at 222

(writing that “another consideration” was “the imperative of judicial integrity”). 2

Thus, even as the Supreme Court began to adopt a deterrence (rather than

privacy) rationale for the exclusionary rule, it still found that a bright-line decree—

forbidding all evidence obtained in violation of the Fourth Amendment, no matter the

sovereign identity of the law enforcement officer—was the appropriate way to enforce the

Fourth Amendment’s protections in federal prosecutions. The federal silver platter

doctrine was dead, and the High Court has never revived it.

2 As we now know, the United States Supreme Court would later abandon
completely all other reasons for the exclusionary rule and solely rely upon deterrence of
police misconduct. United States v. Calandra, 414 U.S. 338, 348 (1974) (“In sum, the
rule is a judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, rather than a personal constitutional right of the
party aggrieved.”); id. at 356 (Brennan, J., dissenting) (“This downgrading of the
exclusionary rule to a determination whether its application in a particular type of
proceeding furthers deterrence of future police misconduct reflects a startling
misconception, unless it is a purposeful rejection, of the historical objective and purpose
of the rule.”).

[J-40-2019] [MO: Baer, J.] - 7
 II. State Silver Platter Doctrines

When the Supreme Court decided Elkins and Mapp, the federal judiciary was at

the forefront of defining the privacy rights guaranteed by our founding charters. See Julius

Berman & Paul Oberst, Admissibility of Evidence Obtained by an Unconstitutional Search

and Seizure—Federal Problems, 55 NW . U. L. REV. 525, 532 (1960-61) (noting that, at

the time the article was written, twenty-five states had not adopted the exclusionary rule).

Pennsylvania, regrettably, was not among those states that adopted an exclusionary rule

before Mapp. See Commonwealth v. Chaitt, 112 A.2d 379, 381-82 (Pa. 1955).

But soon state courts began to take the lead. As Justice Brennan noted in 1977,

“more and more state courts are construing state constitutional counterparts of provisions

of the Bill of Rights as guaranteeing citizens of their states even more protection than the

federal provisions, even those identically phrased.” William J. Brennan, Jr., State

Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 495 (1977);

see also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 91 (1980) (Marshall, J.,

concurring) (calling this development “a very healthy trend of affording state constitutional

provisions a more expansive interpretation than [the Supreme] Court has given to the

Federal Constitution”). This “New Federalism” trend applied equally to state constitutional

provisions pertaining to searches and seizures. See Mary Jane Morrison, Choice of Law

for Unlawful Searches, 41 OKLA. L. REV. 579, 594-96 (1988).

As state courts interpreted their state constitutions to provide greater protections

than the Fourth Amendment, two new silver platter problems arose in state courts: (1) the

“reverse silver platter” (evidence obtained by federal authorities, possibly in compliance

with the Fourth Amendment, but in a way that violated the state’s constitution); and (2)

the “interstate silver platter” (evidence obtained by a sister state’s authorities in a way that

violated either the forum state’s constitution, the sister state’s constitution, or both). By

[J-40-2019] [MO: Baer, J.] - 8
the mid-1970s, the need to address both the reverse and interstate silver platter problems

was growing.3 In 1975, “[t]he view expressed in Lustig was also reflected in decisions by

state courts concerned with the ‘interstate silver platter.’” Richard Tullis & Linda Ludlow,

Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the

Exclusionary Rule, 10 U.S.F. L. REV. 67, 68 (1975). Since then-California Deputy

Attorneys General Tullis and Ludlow wrote their influential article in 1975, see, e.g., State

v. Lucas, 372 N.W.2d 731, 736-37 (Minn. 1985) (citing the article); Pooley v. State, 705

P.2d 1293, 1303 (Alaska Ct. App. 1985) (same); see also Britton’s Brief at 27-28 (citing

Lucas and the article), state courts generally have taken one of two approaches to

adjudicate reverse and interstate silver platter issues. First, some states employ a choice

(or conflict) of law approach. Second, other states use an “exclusionary rule analysis.”

A. Choice of Law Approach

Under a choice of law analysis, “courts analyze the issue as if it were a civil case

and apply the choice of law method of the forum state to determine whether the law of

the forum state or the situs state should be followed, and what sanctions are to be used

if the appropriate law is violated.” People v. Porter, 742 P.2d 922, 925 (Colo. 1987).4 The

first question a court would ask is whether the rule pertains to procedure or substance,

3 At the time of Mapp, only six states with judicially-adopted exclusionary rules had
considered the reverse silver platter, with five of those states excluding evidence obtained
by federal officers. See Berman & Oberst, supra at 548. With regard to the interstate
silver platter, five states had considered that doctrine, with mixed holdings on admitting
the evidence. See id. at 549; Galler, supra at 459 n.23
4 The “forum state” refers to the state of the prosecution (in this case, Pennsylvania),
while the “situs state” refers to the state of the search (in this case, California). In reverse
silver platters, “situs” could also refer to the jurisdiction of the federal government, even
though the search is taking place within the physical boundaries of the forum state.

[J-40-2019] [MO: Baer, J.] - 9
as the trial court did in this instance. See Trial Court Opinion, 10/27/2016, at 4-5 (“Trial

Ct. Op.”).

In Burge v. State, 443 S.W.2d 720 (Tex. Crim. App. 1969), the Texas Court of

Criminal Appeals, the high court in that state for all criminal matters, concluded that

determination of how to apply the exclusionary rule in an interstate silver platter case was

a procedural, rather than a substantive, question. Id. at 723. With little analysis, the court

simply stated that “in such instances the law of the forum (Texas in this case) governs as

to procedure and rules of evidence,” citing three treatises. Id. The court found that “[a]ny

other view would lead to endless perplexity.” Id.

Courts that have selected other choice of law approaches, see, e.g., People v.

Saiken, 275 N.E.2d 381, 383-85 (Ill. 1971), and exclusionary rule approaches, see, e.g.,

Lucas, 372 N.W.2d at 736-37, have rejected the idea that application of the exclusionary

rule is a procedural choice of law matter. And the Burge approach has been much

criticized in scholarly commentary. See, e.g., Wayne R. LaFave, 1 Search & Seizure

§ 1.5(c) (5th ed. 2019) (“The summary disposition in Burge on the ground that the law of

the forum controls on matters of procedure has been justly criticized for its imprecision.”);

Morrison, supra at 581 (“Although the exclusionary rule in criminal procedure governs the

admissibility of evidence, it is neither a rule of procedure nor a rule of evidence for choice-

of-law purposes.”); Tullis & Ludlow, supra at 85 (“The approach taken by the Burge court

was criticized by one commentator as a ‘mechanical application of the substance-

procedure choice of law.’”) (quoting Note, Conflict of Laws—Criminal Procedure—Law of

Forum Applies to Search and Seizure in Accused’s Out-of-State Residence, 23 VAND. L.

REV. 425 (1970)).

While application of the exclusionary rule fits into the broad category of law called

“criminal procedure,” it is not procedural in the same way that rules of criminal or civil

[J-40-2019] [MO: Baer, J.] - 10
procedure are. “Given this Court’s recognition that the exclusionary rule is essential to

protect the individual rights enumerated in our own Pennsylvania Constitution,”

Commonwealth v. Bishop, 217 A.3d 833, 853 (Pa. 2019) (Wecht, J., dissenting), and not

essential to protect the individual rights enumerated in our Rules of Criminal Procedure,

the designation of the exclusionary rule as merely a rule of procedure is unsatisfactory,

as the trial court correctly found, see Trial Ct. Op. at 5 (“This issue is a constitutional law

question involving the fundamental right to be free from unreasonable searches and

seizures.”).

Other courts, however, have chosen to do a substantive choice of law analysis,

whereby a court “adopt[s] one of the multifactor conflict-of-laws approaches that have

arisen in the last century (or . . . create[s] a unique multifactor approach that draws on the

factors used in more than one of the recently developed approaches),” such as those

embodied in the Restatement (First) Conflict of Laws or Restatement (Second) Conflict

of Laws. Megan McGlynn, Note, Competing Exclusionary Rules in Multistate

Investigations: Resolving Conflicts of State Search-and-Seizure Law, 127 YALE L.J. 406,

435 (2017).

For example, the Illinois Supreme Court had to decide whether to apply the Illinois

or Indiana exclusionary rules for a prosecution in Illinois court of a crime committed in

Illinois, but where the search took place in Indiana and violated Indiana law. Saiken, 275

N.E.2d at 383-84. That court used a “significant relationship” or “center of gravity” test

and considered a number of factors:

The crime was committed in Illinois; it was being prosecuted there; the
defendant was a resident and citizen of Illinois; the great majority of the
witnesses, who would testify at the trial, were Illinois residents; Indiana had
no vital contact with the crime; and the application of Illinois evidentiary law
would not offend the comity of interstate relationships between Indiana and
Illinois.

[J-40-2019] [MO: Baer, J.] - 11
Id. at 385. Based upon those factors, the court concluded that the Illinois exclusionary

rule should apply. Id. at 386. Similarly, the Rhode Island Supreme Court used a five-

factor test to determine whether the Rhode Island Constitution and its exclusionary rule

should apply to statements given to the New Hampshire police. State v. Briggs, 756 A.2d

731, 739-40 (R.I. 2000).

But there are significant criticisms of the substantive choice of law approach as

well. A multi-factor balancing test, drawn from civil choice of law treatises, does not give

serious consideration to the exclusionary rule, which is at the heart of the Pennsylvania

Constitution’s protection against unreasonable searches and seizures. See McGlynn,

supra at 437 (writing that the civil choice of law factors “give too little weight to the

purposes of the exclusionary rule and too much weight to factors irrelevant to the

administration of the criminal justice system”); Tullis & Ludlow, supra at 88 (“Many of the

factors which are of significance in civil law are of little or no importance to a determination

of whether evidence should be excluded because of a violation of a state rule.”). And

such a test is both indeterminate and susceptible to reverse engineering.

Additionally, the same criticism of treating the exclusionary rule as procedural

applies to a substantive choice of law analysis. Just as our Rules of Criminal Procedure

are promulgated by this Court, pursuant to authority granted by our Constitution, see PA.

CONST. art. V, § 10, determination of which factors to choose in a choice of law analysis

is within the purview of this Court, see Griffith v. United Air Lines, Inc., 203 A.2d 796, 800-

01 (Pa. 1964). In that sense, the Rules of Criminal Procedure and choice of law analyses

are subordinate to this Court. A constitution, in contrast, is “a superior, paramount law,

unchangeable by ordinary means.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803). This Court is subordinate to this Commonwealth’s Constitution and all that it

dictates, including the exclusionary rule. To allow a choice of law analysis to control how

[J-40-2019] [MO: Baer, J.] - 12
and when we apply our exclusionary rule would be to elevate this Court above our

Constitution, a result that goes against the very nature of our form of government.

B. Exclusionary Rule Approach

In contrast to a choice of law approach, “[u]nder an exclusionary rule analysis the

court first identifies the principles to be served by the exclusionary rule, and then

evaluates how the principles would be served by exclusion” if the forum or situs state’s

law were to apply. Quigley, supra at 322. In other words, the court looks first at its own

state constitutional provision protecting against unreasonable searches and seizures.

The court then identifies the rationale for the exclusionary rule, such as deterrence or the

protection of privacy rights. Finally, the court determines whether the rationale for the

exclusionary rule would be served by excluding the evidence obtained in the foreign

jurisdiction.

Numerous courts across the country have adopted such an approach, either

explicitly or implicitly. See, e.g., State v. Torres, 262 P.3d 1006 (Haw. 2011);

Commonwealth v. Brown, 925 N.E.2d 845 (Mass. 2010); State v. Cardenas-Alvarez, 25

P.3d 225 (N.M. 2001); State v Davis, 834 P.2d 1008 (Or. 1992); State v. Mollica, 554 A.2d

1315 (N.J. 1989); Porter, 742 P.2d 922; Echols v. State, 484 So.2d 568 (Fla. 1985);

Lucas, 372 N.W.2d 731; People v. Blair, 602 P.2d 738 (Cal. 1979); Pooley, 705 P.2d

1293;5 see also McGlynn, supra at 442 (writing that this approach “enjoys the most

widespread judicial and scholarly support”); Dana Perkins, Declining to Adopt an Agency

Analysis in the Admissibility of Evidence Obtained in Another Jurisdiction Promotes

Circumvention of the Connecticut Constitution. State v. Boyd, 992 A.2d 1071 (Conn.

5 Even some states that have adopted a conflict of laws analysis have also used an
exclusionary rule analysis at some points. Compare Saiken, 275 N.E.2d 381, with People
v. Coleman, 882 N.E.2d 1025 (Ill. 2008).

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2010), 42 RUTGERS L.J. 1041, 1047 (2011) (“[M]ost [courts] agree that using an

exclusionary rule analysis is preferable.”).

As noted above, an exclusionary rule analysis recognizes the Constitution in its

proper place, as the supreme law of the land. A state’s constitution takes priority over all

other forms of law in a state, whether statutory, common law, or rules of procedure. By

first examining the purpose of a state constitution’s exclusionary rule, a court properly

subordinates its adjudication of a particular criminal case to that constitution. Accordingly,

our Commonwealth should employ an exclusionary rule analysis to determine whether to

resolve a suppression motion by applying Pennsylvania law or the law of a foreign

sovereign.

There is Pennsylvania precedent to suggest that our courts have used a choice of

law approach in the past. For example, in Commonwealth v. Housman, 986 A.2d 822

(Pa. 2009), this Court’s approach emphasized “the policy of the jurisdiction most

intimately concerned with the outcome” to find that a tape recording that complied with

Virginia law, but violated Pennsylvania law, should not be suppressed. Id. at 842 (internal

quotation marks omitted). Housman, in turn, relied upon Commonwealth v. Sanchez, 716

A.2d 1221 (Pa. 1998). The Sanchez Court used a civil choice of law analysis, which the

Court found also should apply in the criminal context, and decided that California had a

greater interest in a canine sniff that took place in California; thus, California law should

govern suppression. Id. at 1223-24. Finally, Sanchez cited the Superior Court’s opinion

in Commonwealth v. Bennett, 369 A.2d 493 (Pa. Super. 1976) (en banc). In Bennett, the

court found that applying a Pennsylvania wiretap statute, which had greater protections

than a New Jersey statute, was unwarranted because a Pennsylvania court “would not

chastise errant law enforcement agencies or officers” in New Jersey. Id. at 495.

[J-40-2019] [MO: Baer, J.] - 14
 However, Bennett did not actually use a choice of law analysis. Rather, Bennett

implicitly used an exclusionary rule analysis, albeit one based upon a statute, rather than

the Constitution. In 1976, when the Superior Court decided Bennett, this Court had not

yet issued an opinion stating that our exclusionary rule was based upon privacy rights,

rather than deterrence. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

When the Bennett Court reasoned that applying the Pennsylvania wiretap statute would

not deter New Jersey law enforcement officers from violating Pennsylvania law, that court

implicitly used an exclusionary rule analysis by finding that the purpose of the wiretap

statute, as determined by the General Assembly, was to deter police misconduct, rather

than to protect privacy rights. Judge Hoffman’s dissent in Bennett also used an

exclusionary rule analysis, though he argued that the statute intended to protect privacy

rights. Bennett, 369 A.2d at 501 (Hoffman, J., dissenting) (opining that the evidence

should be suppressed under the Pennsylvania statute because “[t]he history [of the

statute] indicate[d] that the Legislature did not seek primarily to deter the police, but rather

intended to protect Pennsylvania citizens’ privacy from any electronic inclusion”). The

Washington Supreme Court also interpreted Bennett as applying an exclusionary rule

analysis. See Washington v. Brown, 940 P.2d 546, 579 n.159 (Wash. 1997) (applying an

exclusionary rule analysis with a deterrence rationale and citing Bennett).

To the extent that this Court in Housman relied upon Sanchez, and Sanchez relied

upon Bennett, to employ a choice of law analysis, we mischaracterized Bennett. And it

does not appear that this Court, at least in Housman, had the benefit of advocacy debating

whether a choice of law or exclusionary rule analysis was more appropriate. Compare

Housman’s Brief, 452 CAP, at 78 (citing Sanchez), and Commonwealth’s Brief, 452 CAP,

at 74, 77-78 (citing Sanchez and Bennett), with Britton’s Brief at 27-36 (discussing the

two approaches and arguing that the exclusionary rule analysis should govern), and

[J-40-2019] [MO: Baer, J.] - 15
Commonwealth’s Brief at 10-13 (citing Bennett for the proposition that California law

should determine suppression under a choice of law approach); see also Maj. Op. at 10

(“[T]he Commonwealth primarily contends that a conflict-of-law analysis, like that

performed by the trial court, applies to and permits the secret recording of the statements

that [Britton] made in her California home.”). Unlike in Housman, these arguments are

now squarely presented. Britton’s arguments regarding use of an exclusionary rule

analysis are compelling, and I would find that the exclusionary rule governs cases such

as this.

III. Employing an Exclusionary Rule Analysis

Because a state court is not required to interpret its state constitution in conformity

with the Fourth Amendment, see Commonwealth v. DeJohn, 403 A.2d 1283, 1289 (Pa.

1979), state courts do not have to rely upon deterrence as a rationale for the exclusionary

rule. Rather, state courts primarily advance three reasons for the exclusionary rule: (1)

privacy, (2) judicial integrity, and (3) deterrence. I examine how state courts using an

exclusionary rule analysis in reverse and interstate silver platter cases apply such an

analysis under all three rationales.

A. Privacy Rationale

Under a privacy rationale, the exclusionary rule exists “not to deter or ensure

judicial integrity, but to effectuate in the pending case the constitutional right of the

accused to be free from unreasonable search and seizure.” Cardenas-Alvarez, 25 P.3d

at 232 (internal quotation marks omitted). Thus, as the United States Supreme Court

previously stated, under a privacy rationale, the exclusionary rule is “part and parcel” of

[J-40-2019] [MO: Baer, J.] - 16
a search and seizure provision’s “limitations upon [state] encroachment of individual

privacy.” Mapp, 367 U.S. at 651.

When state exclusionary rules have a privacy rationale, state courts uniformly have

found that the law of the forum state, rather than the law of the situs state, should govern

suppression. For example, the Oregon Supreme Court noted that its constitution’s “focus

. . . is on protecting the individual’s rights vis-à-vis the government, not on deterring or

punishing the excessive conduct of any particular governmental actor, local or otherwise.”

Davis, 834 P.2d at 1012. That court was confronted with a case wherein an Oregon

prosecution relied upon a search by Mississippi police in Mississippi that may have

violated the Oregon Constitution. Id. at 1009-12. The court found that “there is only one

place and only one way in which such rights can be vindicated, viz., in Oregon courts and

by excluding from use in Oregon prosecutions any evidence obtained in a manner

contrary to Oregon’s constitutional rules.” Id. at 1013.6

Similarly, the New Mexico Supreme Court has held that its constitution has a

privacy rationale for the exclusionary rule. Cardenas-Alvarez, 25 P.3d at 232. Cardenas-

Alvarez was a reverse silver platter case involving a search by federal agents at a border

patrol checkpoint within New Mexico. Id. at 227. The search by the federal agents may

have violated the New Mexico Constitution. Employing an exclusionary rule analysis, the

New Mexico Supreme Court held that when a search

violates the protections guaranteed by our state constitution, however, we
will not abandon our guard of those protections in order to accommodate
evidence thereby yielded. Although we do not claim the authority to
constrain the activities of federal agents, we do possess the authority-and

6 The Oregon Supreme Court ultimately found that there was no violation of the
Oregon Constitution, but the court chose first to determine whether the Oregon
Constitution applied and only then interpret that constitution. Davis, 834 P.2d at 1011-
13.

[J-40-2019] [MO: Baer, J.] - 17
 indeed the duty-to insulate our courts from evidence seized in contravention
of our state's constitution.
Id. at 233; accord State v. Snyder, 967 P.2d 843, 848 (N.M. Ct. App. 1998). Finally, while

Hawaii employs all three rationale for its exclusionary rule, the Hawaii Supreme Court

found that the privacy rights guaranteed by its exclusionary rule should “be given

substantial weight when another jurisdiction’s law is involved.” Torres, 262 P.3d at 1020.7

B. Judicial Integrity Rationale

Although there is not one definition of the “judicial integrity” rationale, Justice

Brandeis perhaps had the best formulation:

If the government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites anarchy. To
declare that in the administration of the criminal law the end justifies the
means-to declare that the government may commit crimes in order to
secure the conviction of a private criminal-would bring terrible retribution.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting); see also

Elkins, 364 U.S. at 222 (citing the Olmstead dissents of Justices Holmes and Brandeis

for the “imperative of judicial integrity” as “another consideration” for the exclusionary

rule). Just as much as prosecutors and law enforcement officers, courts are part of the

government. “[J]udicial integrity would suffer if the courts were to admit evidence illegally

obtained.” DeJohn, 403 A.2d at 1296 (Larsen, J., concurring and dissenting). By

admitting such evidence, the court itself becomes a lawbreaker.

Courts analyzing the judicial integrity rationale under an exclusionary rule construct

have come to differing conclusions on suppression. Some courts have found that judicial

7 McGlynn argues that a privacy rationale does not necessarily result in suppression
“when the evidence was located in the situs state and discovered during the investigation
of a situs crime.” McGlynn, supra at 434. However, in both the case sub judice and the
cases noted above, the prosecution was taking place in the forum state (indeed, that is
what makes it the forum state). Thus, there is no “situs crime.” Courts applying an
exclusionary rule analysis with a privacy rationale are always adjudicating a “forum
crime.”

[J-40-2019] [MO: Baer, J.] - 18
integrity weighs in favor of suppressing evidence obtained in a sister state or by the

federal government in a way that violates the forum state’s law. For example, the Hawaii

Supreme Court found that Hawaii’s “courts would necessarily be placing their imprimatur

of approval on evidence that would otherwise be deemed illegal, thus compromising the

integrity of [the] courts.” Torres, 262 P.3d at 1019; cf. Cardenas-Alvarez, 25 P.3d at 243

(Baca, J., concurring in the result) (invoking the state action doctrine and finding that

“state action ‘includes action of state courts and state judicial officials’”) (quoting Shelley

v. Kraemer, 334 U.S. 1, 18 (1948)); Tullis & Ludlow, supra at 91 (opining that “[u]nless

the forum regards judicial integrity as a separate basis for application of the exclusionary

rule” evidence obtained in a situs state in conformity with situs law should be admitted

under a deterrence analysis).

In contrast, other states with a judicial integrity rationale have found that such

reasoning does not tip the scales in favor of suppression. The California Supreme Court

determined that judicial integrity would not be compromised by admitting evidence

obtained by federal authorities in Pennsylvania in a way that violated California law. That

court wrote that “[u]nlike the situation that arises when a seizure contrary to California law

occurs in [California], the venture is not lawless, and the government is therefore not

profiting from illegal conduct or acting as a law-breaker.” Blair, 602 P.2d at 748; see also

Mollica, 554 A.2d at 1328 (“Judicial integrity is not imperiled because there has been no

misuse or perversion of judicial process.”); Lucas, 372 N.W.2d at 737 (“[A]dmission of the

tapes does not compromise judicial integrity and does not have the effect of permitting

Minnesota to profit from any wrongdoing.”).

C. Deterrence Rationale

Finally, some state courts, like the United States Supreme Court, use deterrence

as a rationale for the exclusionary rule. Rather than being an essential part of a

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constitutional provision regarding searches and seizures, the exclusionary rule operates

“to deter the police from engaging in unconstitutional searches and seizures by removing

their incentive to do so.” Blair, 602 P.2d at 748.

Perhaps the most influential decision using an exclusionary rule analysis with a

deterrence rationale is that of the New Jersey Supreme Court in Mollica. See Logan,

supra at 311-12. In addition to judicial integrity, as noted above, the New Jersey Supreme

Court found that the purpose of its exclusionary rule was “to deter unlawful police

conduct.” Mollica, 554 A.2d at 1328. The case involved federal officials obtaining records

in a way that complied with federal law, but violated the New Jersey Constitution; those

records were then used in a New Jersey prosecution. Id. at 1318-19. The court found

that the records should not be suppressed because there was nothing to deter. New

Jersey could not deter the situs officers, in this case federal officials, because they had

complied with the situs law. Id. at 1328.

With regard to the involvement of state law enforcement officers, the court found

that the federal officials’ actions were “totally independent of [New Jersey] government

officers.” Id. To make this last finding the court used an “intergovernmental agency”

analysis. Id. at 1329. Although the court cited Lustig and Gambino, it ultimately noted

the following factors:

Differing relationships and interactions may suffice to establish agency.
Thus, antecedent mutual planning, joint operations, cooperative
investigations, or mutual assistance between federal and state officers may
sufficiently establish agency and serve to bring the conduct of the federal
agents under the color of state law. On the other hand, mere contact,
awareness of ongoing investigations, or the exchange of information may
not transmute the relationship into one of agency.
Id. Using this framework, the court affirmed the trial court’s ruling that the federal officials

had not acted as agents of the New Jersey police. Id. at 1329-30.

[J-40-2019] [MO: Baer, J.] - 20
 Other courts applying a deterrence rationale have similarly relied upon an agency

or participation analysis in determining whether to suppress evidence, with varying tests

for what level of participation will lead to deterrence and, in turn, suppression. On one

end of the spectrum, the Illinois Supreme Court requires that there be “evidence of

collusion between federal and state agents to avoid the requirements of state law” in order

to suppress the evidence. Coleman, 882 N.E.2d at 1032. California required that

“California law enforcement personnel participate[] in the seizure of the records” with the

law enforcement officers of another sovereign. Blair, 602 P.2d at 748. See also Brown,

925 N.E.2d at 851 (“To the extent that the conduct of State officials is the object of

deterrence, our rulings excluding similar evidence obtained through investigations that

are essentially State investigations operating under a Federal moniker are sufficient.”);

Brown, 940 P.2d at 578 (“Appellant does not identify any state interest to be advanced

by suppressing the recorded statements. No Washington state officer violated [the

wiretap statute].”); accord Bennett, 369 A.2d at 495 (“Pennsylvania police officers did not

participate in any manner in the securing of this wiretap or in the resulting New Jersey

surveillance.”); but see Torres, 262 P.3d at 1020 (writing that “the application of the

Hawai’i exclusionary rule factors in future cases would deter any federal and state

cooperation to evade state law”) (internal quotation marks omitted).

D. Pennsylvania’s Exclusionary Rule

Although Pennsylvania did not adopt an exclusionary rule until after Mapp, see

Commonwealth v. Bosurgi, 190 A.2d 304, 309 (Pa. 1963), “at the time the exclusionary

rule was embraced in Pennsylvania, we clearly viewed it as a constitutional mandate,”

Edmunds, 586 A.2d at 897. Like Oregon and New Mexico, Pennsylvania’s exclusionary

rule is tied primarily to privacy. As we made clear in Edmunds:

During the first decade after Mapp, our decisions in Pennsylvania tended to
parallel the cases interpreting the 4th Amendment. However, beginning in

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 1973, our case-law began to reflect a clear divergence from federal
precedent. . . . [T]his Court began to forge its own path under Article I,
Section 8 of the Pennsylvania Constitution, declaring with increasing
frequency that Article I, Section 8 of the Pennsylvania Constitution
embodied a strong notion of privacy, notwithstanding federal cases to the
contrary. In Commonwealth v. Platou and Commonwealth v. DeJohn, we
made explicit that “the right to be free from unreasonable searches and
seizures contained in Article I, Section 8 of the Pennsylvania Constitution is
tied into the implicit right to privacy in this Commonwealth.”
Id. at 898 (quoting DeJohn, 403 A.2d at 1291). Thus, the inherent aim of the exclusionary

rule is the “safeguarding of privacy.” Id. at 899.8 Pennsylvania, to a lesser extent, also

has embraced a judicial integrity rationale. In Edmunds, we wrote that “[t]o 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.” Id. at

901.

Applying our privacy rationale in an exclusionary rule analysis, the Pennsylvania

Constitution, including Article I, Section 8, should govern suppression motions when

8 In Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014), we wrote that “the
exclusionary rule in Pennsylvania serves other values besides deterrence; it also
vindicates an individual’s right to privacy.” Id. at 188. In that case, we found that
suppression “would serve some generalized deterrence function.” Id. at 190. However,
while Johnson found that suppression would deter the conduct in question, the Court did
not actually appear to adopt deterrence as a value underlying Pennsylvania’s
exclusionary rule.
In any event, since Johnson, we have reaffirmed that privacy, rather than
deterrence, is the primary reason for our exclusionary rule. See Commonwealth v.
Valdivia, 195 A.3d 855, 862 n.9 (2018) (“‘Article I § 8 . . . generally provides greater
protection . . . because the core of its exclusionary rule is grounded in the protection of
privacy while the federal exclusionary rule is grounded in deterring police misconduct.’”)
(quoting Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)); Commonwealth v.
Arter, 151 A.3d 149, 164 (Pa. 2016) (noting “this Court’s long-standing interpretation of
Article I, Section 8 as embodying a strong individual privacy right”); see also
Commonwealth v. Santiago, 209 A.3d 912, 939 n.10 (Pa. 2019) (Wecht, J., dissenting)
(“Recognizing that Article I, Section 8 of the Pennsylvania Constitution more zealously
protects individual privacy rights than the Fourth Amendment to the United States
Constitution, this Court has held that our exclusionary rule serves a separate purpose as
well: to guard against unwarranted intrusions upon an individual's right to privacy.”).

[J-40-2019] [MO: Baer, J.] - 22
another sovereign’s law enforcement officials obtain evidence in violation of the

Pennsylvania Constitution.9 Although decisions from our sister states only “are entitled

to whatever weight their reasoning and intellectual persuasiveness warrant,” DeJohn, 403

A.2d at 1289, the decisions of the Supreme Courts of Hawaii, New Mexico, and Oregon

are persuasive. When those courts evaluated a constitution for which the exclusionary

rule was based upon a privacy rationale, the courts found that the forum state’s

constitution should govern (or at least be a prime factor in) the admission of evidence in

the forum state’s prosecution, regardless of which sovereign10 conducted the search. Our

9 Tullis and Ludlow outlined three possible scenarios involving interstate silver
platters: (1) illegal in the situs state and illegal in the forum state; (2) illegal in the situs
state, but legal in the forum state; and (3) legal in the situs state, but illegal in the forum
state. Tullis & Ludlow, supra at 90-91. Here, we deal with the third scenario, assuming,
for the time being, that the recording made by the California police officers was legal
under California law and illegal under Pennsylvania law. With regard to the first
scenario—where the means of obtaining the evidence would be illegal in both states—it
is difficult to imagine why the same rule would not apply.
However, the second scenario—illegal in the situs state, but legal in the forum
state—may present different concerns for which a different rule could apply. Such a
situation could implicate issues of: (1) “comity to vindicate” a sister state’s “sovereignty,”
Commonwealth v. Sadvari, 752 A.2d 393, 398 (Pa. 2000); and (2) the need to evaluate
the sister’s state rationale for its exclusionary rule, including the possible deterrence of its
own law enforcement officers from violating that state’s laws. The Pennsylvania
Constitution may serve as a floor, though not a ceiling, for the vindication of individual
rights in Pennsylvania courts, like the federal Constitution does in state prosecutions.
Regardless, we are not confronted with such a scenario in this case.
10 The Oregon Supreme Court, in Davis, encountered an interstate silver platter
scenario involving Mississippi police. The Hawaii Supreme Court, in Torres, and the New
Mexico Supreme Court, in Cardenas-Alvarez, dealt with reverse silver platters, where the
federal government obtained evidence within the boundaries of the state and possibly in
violation of the state’s law, but in compliance with federal law. Under an exclusionary rule
analysis, however, it should make no difference whether the other sovereign is another
state or the federal government, or whether the search took place within the boundaries
of the state or in another state. The focus, especially under a privacy rationale, is on the
rights of the defendant, not the identity of the sovereign performing the search. As the
United States Supreme Court wrote in Elkins, “[t]o the victim” of the constitutional
violation, “it matters not whether his constitutional right has been invaded by a federal
agent or by a state officer.” Elkins, 364 U.S. at 215; see also Davis, 834 P.2d at 1012-13

[J-40-2019] [MO: Baer, J.] - 23
Constitution11 makes promises to all those who are subject to its provisions, whether they

be criminal defendants or innocent victims, Pennsylvania residents or visitors from other

jurisdictions. Those promises must be enforced in our courts if they are to have their

intended effects. Any other rule would subject identical defendants to different results

depending on which law enforcement official12 conducted the search.

(“It does not matter where that evidence was obtained (in-state or out-of-state), or what
governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally
significant fact is that the Oregon government seeks to use the evidence in an Oregon
criminal prosecution.”). Additionally, there is no evidence that any federal statutes, such
as those dealing with wiretaps, are intended to preempt state law, statutory or
constitutional in nature. See State v. Rodriguez, 854 P.2d 399, 404 (Or. 1993); State v.
Williams, 617 P.2d 1012, 1017-18 (Wash. 1980).
Some have called attention to how a state court’s application of its own
Constitution to a sister state’s search could implicate the Full Faith and Credit Clause of
the federal Constitution, U.S. CONST. art. IV, § 1. See Diehm, supra at 257. Our
Constitution and our judgments, of course, cannot violate the federal Constitution. See
U.S. CONST. art. VI, cl. 2. However, as a general matter, the United States Supreme Court
has given discretion to states in deciding which law to apply in state courts. See Sun Oil
Co. v. Wortman, 486 U.S. 717, 727 (1988) (“[I]t is frequently the case under the Full Faith
and Credit Clause that a court can lawfully apply either the law of one State or the contrary
law of another.”); see also McGlynn, supra at 419-24 (analyzing Full Faith and Credit
Clause issues and concluding that “[t]he bottom line for interstate search-and-seizure
cases is that states will almost always be doctrinally justified in applying either the law of
the situs or the law of the forum to a given dispute”). The Commonwealth, in this case,
does not claim that application of the Pennsylvania Constitution would violate the federal
Constitution.
11 We are not presented with a situation in which a Pennsylvania statute, but not the
Pennsylvania Constitution, has been violated. The General Assembly can provide
greater privacy protections than our Constitution under its lawmaking powers. In such a
scenario, an exclusionary rule analysis likely would need to consider the legislature’s
(rather the Constitution’s) reasons for extending those privacy protections. Cf. Bennett,
369 A.2d at 495 (implying that the wiretap statute in question had a deterrence rationale
by writing that the court could “not influence future wiretaps in New Jersey”); id. at 501
(Hoffman, J., dissenting) (writing that the purpose of the wiretap statute was “to protect
Pennsylvania citizens’ privacy from any electronic intrusion”).
12 Our Constitution and case law recognize that only state action violates Article I,
Section 8. The conduct of private individuals has not been subject to suppression. See
Commonwealth v. Corley, 491 A.2d 829, 831 (Pa. 1985). Some state courts have likened

[J-40-2019] [MO: Baer, J.] - 24
 To the extent that judicial integrity plays a role in the application of our exclusionary

rule, the Hawaii Supreme Court’s application of that rationale in an exclusionary rule

analysis is persuasive. By permitting introduction of evidence in a way that violates our

Commonwealth’s Constitution, our trial judges would “necessarily be placing their

imprimatur of approval” on such evidence. Torres, 262 P.3d at 1019. The privacy

protections of Article I, Section 8 do not forbid violations only by law enforcement officers,

or even prosecutors, but also by judges. “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 judicial branch

of government.” Edmunds, 586 A.2d at 901. “Our cases reflect the belief that . . . judges

have a distinct mission to perform in actively protecting the right of privacy of the

individual.” Wilson v. Schnettler, 365 U.S. 381, 396 (1961) (Douglas, J., dissenting). And

as judges, we take an oath to “support, obey and defend . . . the Constitution of this

Commonwealth.” PA. CONST. art. VI, § 3. Defense of that Constitution necessarily

involves ensuring our criminal trials adhere to its mandates, and those mandates should

not “be impaired by judicial sanction of equivocal methods.” Byars, 273 U.S. at 33. The

judicial branch of our Commonwealth’s government cannot be complicit in violations of

our Constitution.

law enforcement officers from other jurisdictions to private actors. See, e.g., Mollica, 554
A.2d at 1325. However, law enforcement officers from other sovereigns, whether they be
from other states or the federal government, are distinct from private actors. See
Commonwealth v. Price, 672 A.2d 280, 284 (Pa. 1996) (concluding that an FBI agent
stopping a driver constituted state action in a prosecution under Pennsylvania law).
“When individuals are forced to stop and be questioned by governmental authority, the
invasion to their right to privacy and freedom of movement is compromised, regardless of
which governmental entity is actually exerting its power.” Cardenas-Alvarez, 25 P.3d at
244 (Baca, J., concurring in the result).

[J-40-2019] [MO: Baer, J.] - 25
 E. The Majority’s Agency Analysis

The Majority’s agency analysis has the unintended effect of undermining the

protections afforded by Article I, Section 8. As noted above, only states with a deterrence

rationale engage in any sort of agency analysis with regard to the participation of the

forum state’s law enforcement officers. See, e.g., Mollica, 554 A.2d at 1329. And this

makes perfect sense. For the situs state’s law enforcement officers, it is unlikely that the

forum court could deter their conduct when their actions were performed within the situs

state and in compliance with situs law. And for the forum state’s law enforcement officers,

the only conduct to deter would be if those officers availed themselves of the looser

privacy protections of the situs state in order to conduct their investigation. Determining

whether the forum state officers wanted to circumvent the more restrictive law of the forum

state requires that the court evaluate the level of participation of the forum state officers

in the situs state search. If the situs state officers truly handed the evidence over to the

forum state officers on a silver platter, with no participation by the forum state officers,

then there is nothing for the forum state court to deter. In contrast, if the forum state

officers colluded, see Coleman, 882 N.E.2d at 1032, or even participated in the situs state

search, suppression under the forum state’s constitution would have the effect of

deterring the forum state officers from circumventing the forum state constitution in the

future.

But Pennsylvania is not a deterrence state, as this Court has made abundantly

clear.13 Our exclusionary rule is based upon privacy and judicial integrity. See Edmunds,

13 The Majority’s decision to determine the legality of the recordings under California
law has an additional cost. Not only are we allowing the introduction of evidence based
upon a sister state’s constitution, but we additionally are allowing that evidence to be
introduced because it conforms to the federal Constitution. See CAL. CONST. art. I, § 24
(“This Constitution shall not be construed by the courts to afford greater rights to criminal
defendants than those afforded by the Constitution of the United States.”). Thus, despite

[J-40-2019] [MO: Baer, J.] - 26
586 A.2d at 898-901. There is nothing for our exclusionary rule to deter. Our Constitution

cares not whether suppression of the evidence will stop Pennsylvania law enforcement

officers from cooperating with another sovereign’s officers in a future case. Our

Constitution does not care whether Pennsylvania officers are handed such evidence on

a silver platter without any cooperation whatsoever from Pennsylvania officers. Our

Constitution “is meant to embody a strong notion of privacy, carefully safeguarded in this

Commonwealth for the past two centuries.” Id. at 897. The privacy of each individual

who is criminally tried in our Commonwealth’s courts is at the heart of Article I, Section 8.

The Majority’s agency analysis implicitly shifts Article I, Section 8’s exclusionary rule from

a privacy rationale to one of deterrence. While I have no doubt that the Majority is

committed to upholding the privacy rationale of our exclusionary rule as a constitutional

matter, the Majority’s engagement with the agency question is short-sighted, having

second-order effects beyond the pages of this single opinion. I cannot join that

paradigm.14

our clear command that “Article I, section 8 has an identity and vitality that is separate
and distinct from that of the Fourth Amendment,” Commonwealth v. Kohl, 615 A.2d 308,
314 (Pa. 1992), the Majority’s decision has the effect of allowing the introduction of
evidence that violates Article I, Section 8, but adheres to the Fourth Amendment, which
has a deterrence rationale for its exclusionary rule, Calandra, 414 U.S. at 348.
14 The Majority contends that “examination of whether any Pennsylvania specific
constitutional or statutory protections extended to [Britton’s] situation is unwarranted.”
Maj. Op. at 1-2. Britton framed her question in the following manner:
Should out of state law enforcement officers acting within their own state
but solely at the request of Pennsylvania law enforcement officers be
considered agents of the Pennsylvania law enforcement and as such
governed by the same statutory and constitutional standards as the
Pennsylvania law enforcement officers?
Commonwealth v. Britton, 194 A.3d 1041, 1042 (Pa. 2018) (per curiam). Britton did frame
her question to ask whether the California “law enforcement officers be considered agents
of the Pennsylvania law enforcement” officers. Id. However, the question goes on to ask
whether the California officers should be “governed by the same statutory and

[J-40-2019] [MO: Baer, J.] - 27
constitutional standards as the Pennsylvania law enforcement officers.” Id. The phrase
“as such” connecting the two parts of the question, id., could be interpreted as asking this
Court first to look at agency and only then to determine the result under Pennsylvania
law, if appropriate. Presumably, this is the Majority’s interpretation.
However, a better reading of the question is to ask first what the appropriate type
of analysis is regarding evidence obtained by another sovereign’s officers and introduced
into Pennsylvania court. This interpretation of the question accords with the history of
this case. The trial court interpreted Britton’s motion to suppress in this way, concluding
that a choice of law analysis was appropriate before moving onto the agency question.
See Trial Ct. Op. at 4-6. Britton’s Rule 1925(b) statement argued that the trial court “erred
by applying California law to the analysis of whether [Britton’s] statements were taken in
violation of her rights under . . . Article 1 Sections 8 and 9 of the Pennsylvania
Constitution.” Statement Pursuant to Pa.R.A.P. 1925(b), 1786 EDA 2017 at ¶ 2(b).
Britton saw this question as distinct from the agency question. Id. at ¶ 2(a)(i)-(ii). Britton
disagreed with the trial court’s choice of law analysis in her Superior Court brief. See
Britton’s Brief, 1786 EDA 2017, at 25-26. And the Commonwealth implicitly endorsed the
trial court’s choice of law analysis in its Superior Court brief. See Commonwealth’s Brief,
1786 EDA 2017, at 5-8. The Superior Court endorsed the trial court’s finding as to its
choice of law analysis. Commonwealth v. Britton, 1786 EDA 2017, 2018 WL 1165543,
at *1 (Pa. Super. Mar. 6, 2018).
In this court, Britton’s Petition for Allowance of Appeal argued that the trial court
erred in using a choice of law analysis. Petition for Allowance of Appeal, 238 MAL 2018,
at 9-11. Britton also wrote that a more appropriate analysis was whether the California
officers were “acting as . . . agent[s] of the Pennsylvania law enforcement.” Id. at 11. But
in her brief to this Court, Britton makes three arguments: (1) that the California officers
were agents of the Pennsylvania officers, Britton’s Brief at 15-16; (2) that a choice of law
analysis is not appropriate, id. at 27-31; and (3) that this Court should adopt an
exclusionary rule analysis, id. at 31-36.
Although Britton has not necessarily separated her arguments in an artful manner,
she has viewed our grant of allocatur as creating two possible vehicles to vindicate her
claims, either through a choice of law or exclusionary rule analysis, or alternatively, via
an agency analysis. And as the Majority acknowledges, the Commonwealth also
interpreted the question granted as encompassing, at the very least, whether the choice
of law analysis was appropriate. Maj. Op. at 10 (“[T]he Commonwealth primarily contends
that a conflict-of-law analysis . . . applies.”); see also Commonwealth’s Brief at 10-16.
The Commonwealth did not argue the agency question. Maj. Op. at 10 (“The
Commonwealth’s argument is of limited help as it does not squarely address [Britton’s]
agency argument.”).
I agree with the parties that the question presented encompasses more than
analyzing whether the California officers were agents of the Pennsylvania officers. The
issue about whether to apply the Pennsylvania Constitution is here, and we should decide
it. It “has not been waived, was advanced in the Petition for Allowance of Appeal, and

[J-40-2019] [MO: Baer, J.] - 28
 The Majority’s agency analysis suffers from an additional flaw: it will be difficult to

apply in future cases and will lead to inconsistent results. This is the same flaw that

plagued federal constitutional jurisprudence until the United States Supreme Court finally

ended the silver platter doctrine. See Elkins, 364 U.S. at 212 (“And it is fair to say that in

their approach to this recurring question, no less than in their disposition of concrete

cases, the federal courts did not find themselves in complete harmony, nor even internally

self-consistent.”). The Majority cites traditional agency law and finds that there are three

factors in determining whether a situs officer acted as an agent of a Pennsylvania officer.

See Maj. Op. at 14. The Majority concedes that “reasonable minds could differ as to

whether” the first two factors apply to this case. Id. The very fact that reasonable minds

could differ as to two factors here indicates that it will be difficult for our lower courts to

apply this test in future cases. I acknowledge that courts must routinely apply the three

agency factors in civil cases. But the privacy protections of our Constitution surely must

give our residents more exacting notice as to what evidence can be admitted in criminal

trials.

Bright line rules have numerous benefits, including easier application in our lower

courts, predictability, and notice. See generally Antonin Scalia, The Rule of Law as a

Law of Rules, 56 U. CHI. L. REV. 1175 (1989). The approach of the New Mexico and

Oregon Supreme Courts15 is to create a bright-line rule, consistent with their bright-line

has been briefed by both parties, without objection.” Erie Ins. Exch. v. Bristol, 160 A.3d
123, 124 (Pa. 2017) (per curiam).
15 The Hawaii Supreme Court’s approach in Torres differed slightly from the New
Mexico and Oregon Supreme Courts. The Hawaii Supreme Court ultimately concluded
that “due consideration . . . must be given to the Hawai’i Constitution and applicable case
law” in deciding reverse silver platter cases. Torres, 262 P.3d at 1021. In contrast, both
New Mexico, see Cardenas-Alvarez, 25 P.3d at 232 (“We hold that when a federal agent
effectuates such an intrusion and the State proffers the evidence thereby seized in state
court, we will subject it to New Mexico’s exclusionary rule.”), and Oregon, see Davis, 834

[J-40-2019] [MO: Baer, J.] - 29
privacy rationale. The proposed rule above—that the Pennsylvania Constitution should

govern suppression motions for which evidence violated the Pennsylvania Constitution—

is such a bright line rule. It will be easy for our trial courts to apply and will give notice to

criminal defendants, in addition to conforming to the mandates of our Constitution. In this

case, we are grappling with whether a standard designated by the Pennsylvania

Constitution should be applied in Pennsylvania courts. The Majority creates an

indeterminate test that requires analysis of three different factors. But “when the standard

is clear it should be laid down once for all by the Courts.” Baltimore & O.R. Co. v.

Goodman, 275 U.S. 66, 70 (1927) (Holmes, J.). My proposed standard is clear and would

prevent recurring appeals requiring more exacting definitions of agency in cases like this.

IV. Applying the Pennsylvania Constitution

Applying the Pennsylvania Constitution here, I would find that the trial court erred

in not suppressing the recordings made by the California police officers in Britton’s home

because those recordings violated Article I, Section 8 of the Pennsylvania Constitution.

P.2d at 1012 (“If the government seeks to rely on evidence in an Oregon criminal
prosecution, that evidence must have been obtained in a manner that comports with the
protections given to the individual by Article I, section 9, of the Oregon Constitution.”),
adopted bright line rules.
It is unclear why the Hawaii Supreme Court did not also adopt such a bright line
rule, though perhaps it was because Hawaii had three different rationales for its
exclusionary rule, including deterrence, and those different rationales had to be weighed
in future cases. The concurrence noticed this lack of a bright line rule, writing that “[t]he
‘substantial weight’ standard is simply too murky for trial courts to utilize and apply
consistently.” Torres, 262 P.3d at 1028 (Nakayama, Acting C.J., concurring and
dissenting).
I agree that requiring a trial court to determine, in each case, whether suppression
is warranted under an exclusionary rule analysis is unnecessary. Thus, I would adopt the
bright line approach of New Mexico and Oregon, especially as, like those states,
Pennsylvania does not rely upon deterrence for its exclusionary rule.

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A. The Questioning of Britton in Her Home Violated the Pennsylvania Constitution

In Commonwealth v. Brion, we determined that, under Article I, Section 8 of the

Pennsylvania Constitution, “an individual can reasonably expect that his right to privacy

will not be violated in his home through the use of any electronic surveillance.” Brion, 652

A.2d at 289. While Brion involved a confidential informant recording the defendant in his

home without the defendant’s knowledge or consent, id. at 287, the protections of Article

I, Section 8 equally apply to police officers who use electronic surveillance without the

defendant’s knowledge or consent in her home, see Commonwealth v. Ardestani, 736

A.2d 552, 553-54 (Pa. 1999) (Opinion Announcing the Judgment of the Court) (applying

Brion retroactively in a case involving a police detective who was fitted with a wire and

recorded the defendant in his home).

Two detectives from the San Bernardino County Sheriff’s Department interviewed

Britton, first at the Morongo Sheriff’s Station and then in Britton’s home. At the sheriff’s

station, a sign informed Britton that the interviews would be recorded. Maj. Op. at 4. After

the interview at the sheriff’s station, the detectives interviewed Britton in her home and

returned the next day to conduct another interview. Id. During the initial interview, Britton

“accepted responsibility for participating in the murder, explained in gruesome detail how

she dismembered the body, and laid out how [Britton and her then-husband James

Britton] disposed of the remains.” Id. In both instances, the detectives recorded Britton

using a belt recorder, but “never affirmatively informed [Britton] that they were recording

the interviews.” Id. at 5.

This case presents a straightforward application of Brion. Because there is no

evidence to suggest that the detectives had received a “determination of probable cause

by a neutral, judicial authority” for an in-home recording, the evidence from the detectives’

belt recorder “should have been suppressed.” Brion, 652 A.2d at 289.

[J-40-2019] [MO: Baer, J.] - 31
 The Commonwealth argues that Britton had no reasonable expectation of privacy

for the interviews recorded on the belt recorder in her home. Commonwealth’s Brief at

16-20 (citing Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989)). The Commonwealth

avers that, because Britton “invited the detectives specifically to continue with the

interview in her home,” she had no “subjective and justifiable expectation of privacy in her

conversation with the detectives.” Id. at 19. “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.” Commonwealth v. Blystone, 549 A.2d 81, 87

(1988). The reasonable expectation of privacy test applies in the context of in-home

recordings. While Brion held that Article I, Section 8 forbids “the use of any electronic

surveillance” in the defendant’s home without probable cause and a warrant, if the

defendant “did not have an expectation of privacy within his home,” then Article I, Section

8 does not require suppression. Brion, 652 A.2d at 289.

The warnings at the police station do not obviate the requirements of Article I,

Section 8 in an individual’s home, and Britton’s invitation to the detectives to enter her

home did not suspend operation of Article I, Section 8’s protections. The home is

different. “For the right to privacy to mean anything, it must guarantee privacy to an

individual in [her] own home.” Brion, 652 A.2d at 289. Britton did not affirmatively invite

the California detectives to record her statements using their belt recorder. And while the

Commonwealth cites our decision in Henlen, “[u]nlike both Blystone and Henlen, the

instant case involves conversations taking place in the sanctity of one’s home.” Id. Thus,

there is no evidence to conclude that Britton did not have a reasonable expectation of

privacy for the interviews recorded on the detectives’ belt recorder.

[J-40-2019] [MO: Baer, J.] - 32
 However, during the initial interview, one of the detectives “utilized a Sherriff-

issued [sic] iPad to record a video of [Britton] demonstrating on a stuffed animal the

manner in which James killed” Robert Roudebush, the victim. Maj. Op. at 4-5. “Britton

further admitted that she was present for and actively participated in [Roudebush’s]

murder.” Id. In determining whether the iPad recording violated Article I, Section 8, there

is no need to examine “whether that expectation is one that society is prepared to

recognize as reasonable.” Blystone, 549 A.2d at 87. An iPad, unlike a wire, is not an

inconspicuous device. Britton could see the iPad recording her actions. See Notes of

Testimony (“N.T.”), 7/12/2016, at 74 (describing one of the detectives as “pull[ing] his iPad

out and film[ing] it”); see also N.T., 11/2/2016, at 189 (noting that the iPad “is pretty out in

the open. . . . Like he can’t surreptitiously [record] with an iPad. Like that doesn’t work

very well.”). Thus, she subjectively did not “exhibit[] an expectation of privacy.” Blystone,

549 A.2d at 87. The iPad recordings were admissible during trial.16

B. Even Under an Agency Analysis, the Evidence Should be Suppressed

Even if this court were to adopt some sort of agency analysis, in opposition to every

other state constitution with a privacy rationale for its exclusionary rule, the interviews

from the belt recorders should have been suppressed. While the Majority imports a

definition of agency from the civil side of our jurisprudence, see Maj. Op. at 14 (citing,

inter alia, the Restatement (Second) of Agency), I would instead use the agency analysis

employed by the United States Supreme Court in Byars and its progeny.17

16 Britton does not argue that the interviews and recordings from the sheriff’s station
violated any provision of the Pennsylvania Constitution, as she contends only that
Pennsylvania law should be applied to the in-home recordings. See Britton’s Brief at 17
(“Surreptitious recordings made inside of a person’s out-of-state home should be
governed by Pennsylvania law . . . .”) (emphasis added).
17 I acknowledge that Byars and its progeny are not binding on this Court if we were
to adopt an agency analysis in silver platter cases. DeJohn, 403 A.2d at 1289 (“For a
state court interpreting a state constitution, opinions of the United States Supreme Court

[J-40-2019] [MO: Baer, J.] - 33
 Gambino states that when a search is “made solely for the purpose of aiding the”

forum jurisdiction “in the enforcement of its laws,” the evidence must be suppressed.

Gambino, 275 U.S. at 317. Whether the situs state officers “acted under the directions of

the” forum “officials in making the arrest and seizure” is of no importance. Id. This case

does not present a scenario in which the California detectives were interviewing Britton

for a crime committed in California and happened to stumble onto Britton’s participation

in the Pennsylvania murder. Rather, the California detectives conducted the interview

“solely” at the behest of the Pennsylvania officers. See N.T., 7/12/2016 at 59-60

(describing how the Pennsylvania officers contacted the California detectives and asked

them to interview Britton); see also Trial Ct. Op. at 11. And, although the Majority

concludes that the Pennsylvania officers did not “exercise[] any control over” the

California detectives’ actions, Maj. Op. at 14,18 that should play no role in the inquiry.

are like opinions of sister state courts or lower federal courts. While neither binding in a
constitutional sense nor precedential in a jurisprudential one, they are entitled to whatever
weight their reasoning and intellectual persuasiveness warrant.”).
Additionally, as noted above, the United States Supreme Court overruled the silver
platter doctrine in toto, including any agency analysis, even as it was shifting towards a
deterrence rationale for the Fourth Amendment’s exclusionary rule. See Elkins, 364 U.S.
at 217 (“The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel
respect for the constitutional guaranty in the only effectively available way—by removing
the incentive to disregard it.”). This adds further support for my belief that an agency
analysis is inappropriate under the Pennsylvania Constitution, which does not even have
a deterrence rationale.
18 I do not necessarily accept the proposition that, because the Pennsylvania officers
did not direct the California detectives to use the belt recorder, there was no agency
relationship. “It is fundamental agency law that an act outside the scope of one’s authority
may be ratified by the subsequent conduct or behavior of the principal on whose behalf
one purports to be acting.” Commonwealth v. Eshelman, 383 A.2d 838, 842 (Pa. 1978);
cf. Lustig, 338 U.S. at 78 (plurality) (“To differentiate between participation from the
beginning of an illegal search and joining it before it had run its course, would be to draw
too fine a line in the application of the prohibition of the Fourth Amendment.”). The record
shows that the Pennsylvania officers were made aware of the California detectives’ use
of the belt recorder and allowed the detectives to continue interviewing Britton. See N.T.,

[J-40-2019] [MO: Baer, J.] - 34
Thus, per the reasoning of the United States Supreme Court in Gambino, the law of the

forum jurisdiction—in this case, Pennsylvania—should apply, and the trial court erred in

not suppressing the belt recordings.

V. Harmless Error

As its final argument, the Commonwealth contends that, even if the trial court erred

in admitting the recordings from Britton’s home, that error was harmless. See

Commonwealth’s Brief at 20-22.

As we recently noted:

Harmless error exists if the Commonwealth proves that (1) the error did not
prejudice the defendant or the prejudice was de minimis; (2) the erroneously
admitted evidence was merely cumulative of other untainted evidence
which was substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.
Commonwealth v. Frein, 206 A.3d 1049, 1070 (Pa. 2019). The harmless error doctrine

applies to constitutional errors. Commonwealth v. Story, 383 A.2d 155, 163-64 (Pa.

1978). “[T]he burden of establishing that the error was harmless beyond a reasonable

doubt rests with the Commonwealth.” Id. at 162 n.11.

The Commonwealth avers that other evidence in the case was sufficient to support

Britton’s guilty verdict, specifically: (1) that the California detectives “could have testified

to the statements from their own recollection,” Commonwealth’s Brief at 21; (2) that

Britton told a Pennsylvania officer “the same version, that she was, in fact, present at the

time that her ex-husband murdered the victim,” id. at 22; (3) the iPad video; and (4) a

consensual search of her phone that revealed text messages involving incriminating

7/12/2016, at 60 (“I remember telling [Pennsylvania Trooper McAndrew] after” about the
belt recorder.); id. at 62 (acknowledging that Trooper McAndrew “continued to ask for
[the] assistance” of the California detectives “in the matter,” even after learning that the
conversations had been recorded).

[J-40-2019] [MO: Baer, J.] - 35
communications with her ex-husband. Because the California detectives’ testimony

regarding the same information that was recorded in Britton’s home could implicate the

independent source doctrine, see Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996),

I believe that it is prudent not to consider any evidence gleaned from Britton while the

California detectives were using the belt recorder.

Even without Britton’s statements made in her home, “the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the

error was so insignificant by comparison that the error could not have contributed to the

verdict.” Frein, 206 A.3d at 1070. First, one of the Pennsylvania officers described at

trial how Britton “admitted to now being a participant and being present when the murder

happened” in a phone call on August 18, 2015. N.T., 11/4/2016, at 117. Britton also

admitted that she had lied in past interviews and to a grand jury. Id. at 110, 117. Second,

the iPad video revealed that “Britton demonstrated with a stuffed animal [her ex-

husband’s] actions and the way [the victim] was laying, so she played [her husband], and

then [the victim] was played by a stuffed animal that she had in the house.” N.T.,

11/3/2016, at 24-25. The video depicted how Britton’s husband “murdered” the victim,

demonstrating that Britton was present during the murder. N.T., 11/2/2016, at 189; see

also N.T. 11/7/2016, at 46-47 (describing the iPad video in further detail). Third, Britton

consented to a search of her phone which revealed text messages from her ex-husband.

N.T., 11/2/2016, at 185. Britton and her ex-husband discussed the murder, with Britton

mentioning the possibility of “call[ing] the state police,” presumably referring to the

Pennsylvania authorities. N.T., 11/3/2016, at 5-6.

The jury had ample evidence to conclude, beyond a reasonable doubt, that Britton

had participated with her ex-husband in murdering the victim. Thus, the trial court’s error

[J-40-2019] [MO: Baer, J.] - 36
in not suppressing the tapes of the belt recorders in violation of Article I, Section 8 of the

Pennsylvania Constitution was harmless.

VI. Conclusion

I am confident that the Majority believes that Article I, Section 8 of the Pennsylvania

Constitution “is tied into the implicit right to privacy in this Commonwealth.” DeJohn, 403

A.2d at 1291. But by engaging in an agency analysis to determine whether evidence

obtained by California law enforcement officers should be suppressed in a Pennsylvania

court, the Majority undermines that right to privacy and begins to shift our exclusionary

rule to a deterrence rationale. While I believe that the Majority’s analysis is not a

“purposeful rejection[] of the historical objective and purpose of the rule,” Calandra, 414

U.S. at 356 (Brennan, J., dissenting), it is still a dangerous path to take.19

“[T]he right to be let alone” is “the most comprehensive of rights and the right most

valued by civilized men” and women. Olmstead, 277 U.S. at 478 (Brandeis, J.,

19 Rather than engaging with my contention that an agency analysis is appropriate
only in a state with a deterrence-based exclusionary rule, the Majority writes that I am
“ponder[ing]” the Majority’s “intent” and “mak[ing] unwarranted accusations that” the
Majority is “undermining the protections of the Pennsylvania Constitution.” Maj. Op. at 15
n.7. The above paragraph makes clear that I do not believe that the Majority’s decision
to perform an agency analysis is a “purposeful rejection” of our exclusionary rule’s privacy
rationale. Calandra, 414 U.S. at 356 (Brennan, J., dissenting).
While I do take issue with how the Majority answers the agency question, see Part
IV.B, supra, the thrust of this opinion is about the Majority’s decision to undertake an
agency analysis at all. As described above, an agency analysis makes sense only in a
deterrence state. We do not live in a deterrence state. Thus, this Court should not
perform an agency analysis.
The Majority claims that it is “focusing on the narrow issue presented to the Court”
and “not reach[ing] any constitutional issue.” Maj. Op. at 15 n.7. That could be true if
today’s ruling were restricted to the four corners of the Majority’s opinion. But when this
Court speaks, we do not speak just for the parties in any individual case, or even just for
future cases that come to this Court. Rather, we give guidance to all those who must
interpret, practice, and apply the law in our Commonwealth. Lower court judges,
attorneys, and law enforcement officers (not to mention laypersons) look to this Court and

[J-40-2019] [MO: Baer, J.] - 37
dissenting). While that right to be let alone is protected by the Fourth Amendment of the

United States Constitution, our system of federalism in the United States ensures that “a

double security arises to the rights of the people.” THE FEDERALIST NO. 51 (James

Madison). Article I, Section 8 is that double security. It guarantees that our law

enforcement officers, our prosecutors, and our courts do not violate that essential

component of liberty. Enforcement of Article I, Section 8 and its corresponding

exclusionary rule is not always easy. It “may place a duty of thoroughness and care upon

police officers and district justices in this Commonwealth.” Edmunds, 586 A.2d at 906.

But “that is a small price to pay . . . for a democracy.” Id. Article I of our Constitution

declares those fundamental rights that we enjoy as residents of this Commonwealth. In

its opinions when they want to understand the rights afforded by Article I of our
Constitution. By engaging in an agency analysis, the Majority is leading those judges and
attorneys and law enforcement officers down the wrong path.
If a defendant were to bring a claim that the search of his home violated the British
Constitution, despite there being no reason to apply the British Constitution in the case, I
am confident that this Court could answer that “narrow issue” by researching British
precedent. But determining whether the British Constitution is violated would not be part
of our job description. As justices of the Pennsylvania Supreme Court, we interpret the
Pennsylvania Constitution. As with the British Constitution, an agency analysis is foreign
to the Pennsylvania Constitution because of our continued reliance upon a privacy
rationale for our exclusionary rule.
Although Britton has raised the agency issue, ultimately Britton and the
Commonwealth have debated and asked this Court to answer the question of whether
the Pennsylvania or California Constitutions should govern this case. “But answers are
not obtained by putting the wrong question and thereby begging the real one.” Priebe &
Sons v. United States, 332 U.S. 407, 420 (1947) (Frankfurter, J., dissenting). The Majority
presumes that an agency analysis is appropriate under our Commonwealth’s
Constitution. It is not. This Court instead should consider the real question at issue in
this case: whether the Pennsylvania Constitution should apply in Pennsylvania courts.

[J-40-2019] [MO: Baer, J.] - 38
our privileged position as interpreters of that Constitution, we should do all that we can

do to protect those rights.

Although I concur with the Majority in affirming the decision of the Superior Court

based upon the harmless error doctrine, I cannot join the Majority’s agency analysis.

[J-40-2019] [MO: Baer, J.] - 39