concurring and dissenting.
I concur in the affirmance of the judgment of sentence for attempted theft by extortion. I dissent to the reversal of the judgment of sentence on the conviction of murder of the third degree and in support of my dissent I submit the following:
I. RIGHT TO PRIVACY
I would hold, on the basis of Article I, Section 8, of the Pennsylvania Constitution, that a depositor does not have a reasonable expectation of privacy in a checking account and thus the appellant, Jill V. DeJohn, has no standing to attack the lawfulness of the seizure of the bank records. Thus the trial judge was correct in denying appellant’s motion to suppress. In support thereof I cite and adopt the rationale of United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) wherein the United States Supreme Court stated that, on the basis of the United States Constitution:
“Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate ‘expectation of privacy’ in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only infor*54mation voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they ‘have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings,’ 12 U.S.C. § 1829b(a)(1). Cf. Couch v. United States, supra [409 U.S.] at 335, 93 S.Ct. [611,] 619, 34 L.Ed.2d [548,] 558.
“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 1125-1126, 28 L.Ed.2d 453, 458-459 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 752, 91 S.Ct. [1122,] at 1126, 28 L.Ed.2d at 459; Hoffa v. United States, 385 U.S. 293 at 302, 7 S.Ct. [408,] at 413, 17 L.Ed.2d at 462; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)”.
II. THE EXCLUSIONARY RULE
I believe there is an equally compelling reason for affirming the trial court’s denial of appellant’s motion to suppress the evidence obtained pursuant to the subpoenas. It is my opinion that the exclusionary rule should not be applied in this case to bar the admission of that evidence even if, as the majority concludes, it was obtained in violation of Article I, Section 8 of the Pennsylvania Constitution.
Since Miller would not bar the use of the bank evidence under the Fourth Amendment of the United States Constitution, we are concerned solely with the Pennsylvania Constitution. Prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, *556 L.Ed.2d 1081 (1961), Pennsylvania was one of the 24 states which, at that time, admitted evidence in a criminal trial without regard for the manner in which it was obtained, provided it was relevant, not privileged and competent. Lowe, A Summary of Pennsylvania Law on Search and Seizure, 2-4 (1975); see Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 118, 194 A.2d 143, 147 (1963). To the best of this writer’s knowledge, this Court has never fully considered whether the Pennsylvania Constitution itself compels exclusion of evidence obtained in violation thereof. It is therefore appropriate to examine the exclusionary rule as the remedy for violations of Article I, Section 8. This opinion does not purport to exhaust all of the myriad facets and nuances of the exclusionary rule, merely to highlight some of the major themes, and to suggest a framework for judicial and legislative modification and supplementation of the rule.
A. Development of the Exclusionary Rule
Not until 1914 did the United States Supreme Court hold that the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation of that Amendment.1 Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In 1949, that Court held that the Fourth Amendment was applicable to the states because of the Due Process Clause of the Fourteenth Amendment, but declined to require application of the exclusionary rule to state criminal proceedings. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In refusing to apply the Weeks doctrine to the states that Court held:
“Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a *56State’s reliance upon other methods which, if consistently enforced, would be equally effective.” 338 U.S. at 31, 69 S.Ct. at 1362-1363.
Twelve years later, that Court concluded that equally effective alternatives to the exclusionary rule had simply not been developed by the states and that the Fourteenth Amendment required that, in order to prevent the atrophy of Fourth Amendment rights, evidence obtained as a result of an unreasonable search or seizure would be inadmissible in a state criminal proceeding. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Few judicial announcements have engendered more passionate debate, both within the judiciary, see, United States v. Janis, 428 U.S. 433, 446 n.15, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), and among legal commentators, see, e. g. Kasimar, Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment?, 62 Judicature 66 (1978) (hereinafter Kasimar), and Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 215 (1979) (hereinafter Wilkey), and closing arguments by these same two authors, Kasimar, The Exclusionary Rule in Historical Perspective: the Struggle to make the Fourth Amendment More Than ‘an Empty Blessing’, 62 Judicature 337 (1979) (hereinafter Historical Perspective) and Wilkey, A Call for Alternatives to the Exclusionary Rule: Let Congress and the Trial Courts Speak, 62 Judicature 351 (1979) (hereinafter Call for Alternatives). Few issues have produced more legal commentary, as a glance through the Index to Legal Periodicals readily reveals. The mere volume of commentary indicates the difficulty of the problem caused by the countervailing interests involved. (As Justice Cardozo stated “[o]n the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” People v. Defore, 242 N.Y. 13, 150 N.E. 585, 589 (1926) (emphasis added).)
*57B. Criticisms of the Exclusionary Rule
The major criticism of the rule is that it distorts the fact-finding process of the criminal trial since “as is nearly always the case with the rule, concededly relevant and reliable evidence [is] rendered unavailable.” United States v. Janis, supra 428 U.S. at 447, 96 S.Ct. at 3029; Wilkey, supra at 220-21; Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Wash.U.L.Q. 621, 674 (1975) (hereinafter Geller); Levin, An Alternative to the Exclusionary Rule for Fourth Amendment Violations, 58 Judicature 74 (1974). It is also argued that the rule protects only those guilty of a crime (since the evidence is frequently dispositive of guilt) while doing nothing for the innocent (who are not charged with crimes but whose rights have just as surely been violated). Wilkey, supra at 223; Davidow, Criminal Procedure Ombudsman As a Substitute for the Exclusionary Rule: A Proposal, 4 Tex.Tech.L.Rev. 317, 318-19 (1973).
Further, the exclusionary rule operates only in those cases where the object of the police conduct is directed at obtaining a conviction. In a significant percentage of cases, non-prosecutorial goals are sought by law enforcement officials. These include harassment, confiscation of illegal items (simply to get them “off the streets”) or small “pinches” to use as leverage to get the victim of the seizure to inform on his supplier or superior. Geller, supra at 66; Davidow, supra at 319; Skolnick, Justice Without Trial, Ch. 6 (1967); Roche, A Viable Substitute for the Exclusionary Rule: A Civil Rights Appeals Board, 30 Wash. & Lee L.Rev. 223, 225 (1973) (hereinafter Roche). Since in these cases, the person who is the object of unlawful police activity is not prosecuted or brought to trial, the threat of excluding evidence can have little or no deterrent effect, for it deprives the wrongdoer of no benefit. Coe, The ALI Substantiality Test: A Flexible Approach to the Exclusionary Sanction, 10 Ga.L.Rev. 1, 19 (1975) (hereinafter Coe).
Recently, the most severe criticism is that the rule simply does not work to achieve its purposes, see studies cited in United States v. Janis, supra at 450-52, n.22, 96 S.Ct. 3021, *58and that, given its universally recognized social costs, id. at 448-49, 96 S.Ct. 3021, it should therefore be abandoned or its scope restricted.
C. Purposes of the Exclusionary Rule
It is generally conceded that there are two purposes behind the adoption of the exclusionary rule: deterrence of unlawful police conduct and the maintaining of what has come to be known as the “imperative of judicial integrity” (that is, judicial integrity would suffer if the courts were to admit evidence illegally obtained). Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 669 (1970) (hereinafter Oaks); Kasimar, supra at 67. Recent United States Supreme Court decisions, however, suggest that deterrence is the primary, if not the sole justification for the rule. United States v. Janis, supra at 446, 96 S.Ct. 3021; Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); see Commonwealth v. Brown, 470 Pa. 274, 282, 368 A.2d 626, 630 (1976) and Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 118, 194 A.2d 143, 148 (1963). Many empirical studies, by both defenders and detractors of the rule, have been conducted in an attempt to demonstrate a correlation, or lack thereof, between the application of the exclusionary rule and deterrence of police activities violative of the Fourth Amendment. See United States v. Janis, supra, 428 U.S. at 450-52, 96 S.Ct. 3021. Analysis of the studies prompted the United States Supreme Court to observe “[t]he final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect . . . .” Id., at n.22. This conclusion, however, is not shared by all, see, e. g, Canon, The Exclusionary Rule: Have Critics Proven That It Doesn’t Deter Police, 62 Judicature 398 (1979) (hereinafter Canon); Kasimar, supra at 70-73. In the final analysis, it may well be that the effect of the exclusionary rule is simply not susceptible to empirical proof. Call for Alternatives, supra at 353; Cri*59tique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw.L.Rev. 740 (1974); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 416, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); United States v. Janis, supra, 428 U.S. at 449-53, 96 S.Ct. 3021, but cf. n.26 at 453, 96 S.Ct. 3021. At any rate, it seems clear that any proof of the efficacy of the rule is far from convincing.2
While, as noted, recent decisions of the United States Supreme Court have downplayed the significance of the maintenance of the “imperative of judicial integrity”3 as a rationale for the rule, earlier decisions seemed to place considerable emphasis on that purpose. Justice Holmes and Brandéis have made the most eloquent statements of this purpose in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Holmes said:
“the government ought not to use evidence obtained and only obtainable by a criminal act. . . . We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.
For those who agree with me no distinction can be taken between the Government as prosecutor and the Government as judge.” Id. at 470, 48 S.Ct. at 575 (Holmes, J., dissenting).
And Brandéis expounded the following:
“If this court should permit the government by means of its officers’ crimes, to effect its purpose of punishing the *60defendants, there would seem to be present all the elements of a ratification. ...
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. ... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Id. at 483-85, 48 S.Ct. at 575 (Brandeis, J., dissenting).
In contrast to the recent views of the majority of the United States Supreme Court, there are many authors and some courts who still treat the “imperative of judicial integrity” as a viable basis for the exclusionary rule, see, e. g. Kasimar, supra; Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U.Ill.L.F. 518, 536-37 (1975); Board of Selectmen v. Municipal Court, 369 N.E.2d 1145, 1148-49 (1977 Mass.Sup.Judicial Ct.) (“judicial integrity” found determinative in applying exclusionary rule to civil proceeding involving the government), at least in certain categories of cases, Coe, supra at 17.
D. Application of the Exclusionary Rule
Presently, application of the exclusionary rule is an all or nothing proposition — if evidence has been obtained as a result of an unreasonable search and seizure, that evidence will be excluded from the criminal prosecution — regardless of the severity of the deprivation of Fourth Amendment rights.4 “It does not matter whether the action of the officer was grossly wilful and flagrant or whether he was conscientiously using his very best judgment under difficult circumstances; the result is the same: the evidence is out.” Wilkey, supra at 226. Similarly, no distinction is made between relatively minor intrusions upon a person’s reasona*61ble expectations of privacy and severe infringement of those expectations. Id. However, the current trend of judicial and scholarly thought recognizes that situations exist where the doctrines of neither deterrence nor the preservation of judicial integrity are served by the mechanical and absolute application of the rule, and, consequently, that its application should be limited to those cases where the rule’s purposes have significant potential for fulfillment. E. g., Stone v. Powell, supra, 428 U.S. at 497, 536-542, 96 S.Ct. 3037 (Burger, C. J., concurring; White, J., dissenting); Weber, Good Faith of Peace Officers in Search and Seizure: Seeking Proper Limits to the Exclusionary Rule, 53 L.A.B.J. 307 (1977) (hereinafter Weber); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 408-09 (1974) (hereinafter Amsterdam); Geller, supra at 648; Coe, supra.
“The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.” Stone v. Powell, supra at 490, 96 S.Ct. at 3050. Courts should apply rationally graded responses to deprivations of Fourth Amendment, and Article I, Section 8, rights, rather than the indiscriminate and automatic exclusion of evidence. Such responses would acknowledge that “so serious an infringement with the crucial truth-seeking function of a criminal prosecution should be allowed only when imperative to safeguard constitutional rights.” Brewer v. Williams, 430 U.S. 387, 422, 97 S.Ct. 1232, 1251, 51 L.Ed.2d 424 (1977) (Burger, C. J., dissenting).
What are the situations where application of the rule would not further its avowed purposes? Examples include the case where a police officer acts in good faith reliance on probable cause decisions of an appellate court in effect at the time of the search or seizure, but, prior to trial or the suppression hearing, the law changes sufficiently to require the court to hold that no probable cause existed. See, e. g., Weber, supra at 310. Another example is where law en*62forcement agents have probable cause to conduct a search, secure a warrant and execute it in a reasonable manner, but the warrant subsequently proves defective for some reason not related to any bad faith on the part of the authorities. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (warrant invalid because not issued by neutral and detached magistrate). In such situations, the deterrence argument loses what persuasiveness it has because, as expressed by Justice White of the United States Supreme Court in Stone v. Powell:
“[I]t is painfully apparent that in [these situations] the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty. It is true that in such cases the courts have ultimately determined that in their view the officer was mistaken; but it is also true that in making constitutional judgments under the general language used in some parts of our Constitution, including the Fourth Amendment, there is much room for disagreement among judges, each of whom is convinced that both he and his colleagues are reasonable men. Surely when this Court divides five to four on issues of probable cause, it is not tenable to conclude that the officer was at fault or acted unreasonably in making the arrest.
When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect.” 428 U.S. at 539-40, 96 S.Ct. at 3073 (dissenting).
That Court has recognized that the existence of good faith significantly reduces the deterrent effect of exclusion. See Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) and United States v. Peltier, 422 U.S. 531, 537-38, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
Likewise the “imperative of judicial integrity” is not served by application of the exclusionary rule to such sitúa*63tions — in fact, the image of judicial responsibility may be severely tarnished by automatically applying the doctrine. “The layman finds [the judicial integrity rationale] difficult to grasp, and many lawyers think the highest integrity of the adjudicative aspect of the criminal process lies in the separation of the guilty from the innocent on the basis of all the relevant evidence available.” McGowan, Rulemaking and the Police, 70 Mich.L.Rev. 659, 674 (1972) (hereinafter McGowan). Where the exclusionary rule is applied without regard to the seriousness of the unlawful conduct or the culpability of the offender, “it may well have the opposite effect of generating disrespect for the law and administration of justice.” Stone v. Powell, supra, 428 U.S. at 491, 96. S.Ct. at 3051; Schlesinger, supra at 405; Coe, supra at 25-26. Where the Fourth Amendment or Article I, Section 8, violation is a relatively minor transgression, judicial integrity would seem best aided, therefore, by non-application of the suppression doctrine.5 Where, however, the police misconduct is wilful, egregious, reckless or grossly negligent, and the invasion of privacy is serious, the scales of the balance tip in favor of excluding the evidence. See Coe, supra at 31. The public is less likely to perceive the exclusionary rule as a mere “technicality” in these circumstances, or to perceive the court’s role as one of catering to criminals. Of course, the courts should not place undue reliance on “transient public opinion polls” on sensitive issues as we have always accorded to law an educative, as well as a regulatory function. McGowan, supra at 660. Yet we must not insulate ourselves from the public perspective for, as Holmes stated, “[t]he first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community. . . . ” Holmes, The Com*64mon Law 41 (1938). In other words, justice should be rooted in, and emanate out of, the culture (community).
E. Proposals for Modification
There are several proposals for modification of the rule which attempt to balance the collective needs of the community and the individual rights of its citizens. One suggestion is that evidence be suppressed only where the errant law enforcement activity is intentional, reckless or grossly negligent. Geller, supra at 648. Another is that a so-called good-faith defense be adopted such that where the police have acted mistakenly, but in good-faith and on “reasonable” grounds,6 the evidence should not be suppressed. Stone v. Powell, supra, 428 U.S. at 536-42, 96 S.Ct. 3037 (White, J., dissenting); Weber, supra. The American Law Institute takes the position that evidence should be excluded only where the violation committed in acquiring it was “substantial.” Where the violation was “gross, wilful and prejudicial”, it would be “deemed” substantial. In all other cases, various factors would be examined and weighed, and the trial court would determine whether the circumstances demonstrated a “substantial” violation. Circumstances to be considered in determining whether a violation is substantial are:
(a) the extent of deviation from lawful conduct;
(b) the extent to which the violation was wilful;
(c) the extent to which privacy was invaded;
(d) the extent to which exclusion will tend to prevent violations of this Code;
(e) whether, but for the violation, the things seized would have been discovered; and
(f) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend *65himself in the proceeding in which the things seized are sought to be offered in evidence against him.7
I favor the ALI model prohibiting introduction of evidence only when the violation by which it was obtained was “substantial” and would vote to adopt this modified version of the exclusionary rule as the law of this Commonwealth under Article I, Section 8, of the Pennsylvania Constitution.8 “By laying down certain reasoned parameters within which exclusion is to operate . . .the substantiality test has the potential for preserving the exclusionary sanction within *66a scope that is both rational and effective in carrying out the purposes for which it was originally invoked, and at the same time politically and socially acceptable.” Coe, supra at 51. Applying these standards to the case at bar, I would affirm the lower court’s denial of appellant’s motion to suppress:
(a) The extent of deviation from lawful conduct The deviation from lawful conduct was not extreme, indeed, the conduct was sanctioned by the United States Supreme Court when that Court held, in Miller, that there is no intrusion on the bank depositor’s Fourth Amendment rights.9 On the continuum of unlawful conduct, the law enforcement practice in this case falls far short of the sort of activity condemned in Mapp v. Ohio which would be on the high end of the spectrum;10
(b) The extent to which the violation was wilful. While there was no evidence that the investigating officers or the *67assistant district attorney (who advised that the subpoena procedure was proper) acted in bad faith or intended to violate appellant’s right to privacy, the record is inconclusive on the wilfulness of the deviation;
(c) The extent to which privacy was invaded. Again, the invasion of privacy must be seen as on the low end of the continuum. What is involved here are records at a commercial banking institution, not a private residence;
(d) The extent to which exclusion will tend to prevent violations of this Code. To a certain extent, this factor is dependent upon the wilfulness of the violation since, as we have seen, the rationale of prevention of future violations (deterrence) is of dubious validity when applied to unintentional, “reasonable” enforcement procedures. In the absence of bad faith, and in light of the fact that a majority of the United States Supreme Court in Miller did not disapprove the sort of activity herein involved (and that the police and the assistant district attorney could “reasonably” reach the same conclusion as did the Miller court), it would appear that deterrence would not be appreciably advanced by excluding the evidence;
(e) Whether, but for the violation, the things seized would have been discovered. Had the subpoenas been issued after trial had commenced, they would have been lawful, Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970), and the evidence could have been obtained at that time. Additionally, there were search warrants issued prior to the subpoenaing of the bank records which warrants authorized the search of appellant’s house. These warrants were, contrary to appellant’s assertion, supported by probable cause, when the affidavit accompanying the warrants is given a commonsense reading, Commonwealth v. Muscheck, 460 Pa. 590, 334 A.2d 248 (1975).11 The information supplying probable cause *68to search appellant’s house could also have provided probable cause for a search warrant to obtain the bank records. Thus, the evidence probably would have been discovered without the search and seizure violation;
(f) The extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him. Appellant’s ability to support her motion or to defend herself does not seem to be any more or less prejudiced than in any other search and seizure case. Of course, in all cases the mere fact that incriminating evidence is seized is prejudicial to a defendant’s defense. This factor would be more important where the evidence seized in and of itself established guilt, i. e., in possession crimes.12
Considering the totality of the circumstances and all the above factors, any violation of the rights guaranteed appellant by Article I, Section 8, was not “substantial” and, therefore, the evidence was properly admitted.13
*69F. Alternatives to the Exclusionary Rule
Modification of the exclusionary rule would mean that some of the victims of unlawful searches and seizures would have no effective official and jury prejudice against the plaintiff-victim who will often be viewed as an “undesirable” simply because he was the target of police investigation. There are also problems with damages (since actual out-of-pocket losses will usually be slight), the financial resources of the defendant (which will often be limited) and, until recently, the governmental unit was protected from liability for the torts of its agents by the doctrines of governmental immunity (abolished in Ayala v. Philadelphia Board of Public Educ., 453 Pa. 584, 305 A.2d 877 (1973) and sovereign immunity (abolished in Mayle v. Pennsylvania Dep’t. of Highways, 479 Pa. 384, 388 A.2d 709 (1978)). See Foote, Tort Remedies for Police Violations of Individuals Rights, 39 Minn.L.Rev. 493 (1955) (hereinafter Foote); Roche, supra at 227-28.
The adoption of effective alternatives is essential to the future of the federal exclusionary rule. It has been suggested that “although the Supreme Court of the United States has thus far merely whittled away at the suppression doctrine, the Court may soon decide to abandon the doctrine entirely.” Geller, supra at 623. Several of the justices of that Court have indicated recently that they would seriously consider overruling Mapp v. Ohio, or at least consider relaxing the strictures of the Weeks doctrine, when and if alternative mechanisms existed for protection of Fourth Amendment rights. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 421, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Schneckloth v. Bustamonte, 412 U.S. 218, 267-68, n.25, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring); Coolidge v. New Hampshire, 403 U.S., 491-92, 492-93, 493-510, 510, 91 S.Ct. 2022 (Harlan, J., concurring; Burger, J., dissenting and concurring; Black, J., dissenting and concurring; Blackmun, J., concurring in part in Mr. Justice Black’s opinion); see Roche, supra at 225-26; Wilkey, 493-510, 510 (Harlan, J., *70concurring; Burger, J., dissenting and concurring; Black, J., dissenting and concurring; Blackmun, J., concurring in part in Mr. Justice Black’s opinion); see Roche, supra at 225-26; Wilkey, supra at 217; Miles, Decline of the Fourth Amendment: Time to Overrule Mapp v. Ohio ?, 27 Cath.L.Rev. 9 (1977). The failure of the states to create other viable means of enforcing Fourth Amendment rights was a crucial factor in the Mapp decision which required that the exclusionary doctrine to be applied in state criminal proceedings (since the hope expressed in Wolf v. Colorado —that states’ reliance upon other methods would prove equally effective— had failed to materialize). Roche, supra at 223; Coe, supra at 44. Few serious observers of the rule and its effects argue that it should be completely abandoned before viable alternatives exist, since such a course might well be read by police as a declaration of “open season” on criminal suspects. Geller, supra at 653.14 I share this concern. For this reason, the existence of other methods for enforcing the prohibitions against unreasonable searches and seizures are essential.
Numerous possibilities exist. See generally Geller, supra. In addition to the common law tort remedies, there exists the federal tort cause of action recognized in Bivens v. Six Unknown Federal Narcotics Agents, based upon 42 U.S.C. § 1983. Casenote, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Federal Cause of Action for an Illegal Search and Seizure, 10 Dug.L.Rev. 710 (1972). The federal cause of action suffers from the same drawbacks as does its common law *71counterparts, but these causes of action could be significantly enhanced. Abolition of governmental and sovereign immunity in this Commonwealth has already eliminated one of the problems and would allow the plaintiff to reach the deeper pockets of the government unit. Other improvements could include providing a minimum recovery large enough to encourage initiation of civil suits. Attorney’s fees could also be made part of the recovery. To combat the problem of jury prejudices, the cause of action could be made non-jury, or tried before a quasi-judicial tribunal created to hear such claims. On an effective tort cause of action, see Foote, supra; Getter, supra at 696-98.
Another possibility is creation of a criminal ombudsman who would be an “independent governmental official who receives complaints, conducts investigations and makes recommendations relating to the actions of other governmental agencies. . . . ” Davidow, supra at 322. The ombudsman could have power to order prosecution of errant officers or to prosecute them himself. See also Comment, Use of § 1983 to Remedy Unconstitutional Police Conduct; Guarding the Guards, 5 Harv.Civ.Rights Lib.L.Rev. 104 (1970) (advocates court appointment of “monitors” that would serve a similar function as ombudsmen). A related concept is establishment of a civilian review board which would field citizen’s complaints and would be empowered to mete out appropriate disciplinary sanctions if the complaints are legitimate. Such sanctions could range from short-term suspensions for minor violations to discharge for flagrant ones. Roche, supra.
Another possibility that has received considerable attention from the commentators is the administrative law approach to law enforcement agencies. Davis, An Approach to Legal Control of the Police, 52 Tex.L.Rev. 703 (1974); Gilligan & Lederer, Replacing the Exclusionary Rule with Administrative Rulemaking, 28 Ala.L.Rev. 533-74 (1977). Amsterdam, supra at 408-09, 416-423; McGowan, supra; Geller, supra. Police agencies would be mandated to promulgate regulations of general applicability covering the whole *72gamut of police operations such as standards for arrest and for search and seizure. Public hearings could be held and comment solicited. The regulations thus adopted would be judicially reviewable in the same manner as regulations of other administrative agencies. The police department of Washington, D. C. has pioneered this approach with some success. See McGowan, supra at 684; Amsterdam, supra at 425.
Each of these mechanisms and others may be criticized— each has its flaws and each has advantages. They could be tried separately or in combination. The point is that potentially effective alternatives are possible and should be tried — perhaps one (or some combination of them) would work where the exclusionary rule has failed. As one author phrased it:
[T]he exclusionary rule is merely one arbitrary point on a continuum between deterrence of illegal police activity and conviction of guilty persons. As a stopping point, it can be justified solely on the ground that it achieves a better balance between these twin goals than would other points. If another stopping point does the job better, it should replace the current exclusionary rule. Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027, 1030 (1974).
G. Legislative Action Needed
The courts, however, are not the appropriate forum to consider all the various proposals or to implement them. The courts are, necessarily, limited by the facts of each case and the advocacy of the parties, and therefore suffer, at times, from “tunnel vision.” LeFave, Improving Police Performance Through the Exclusionary Rule — Part II: Defining the Norms and Training the Police, 30 Mo.L.Rev. 566, 568 (1965). The legislature, on the other hand, has more fact-finding apparatus at its disposal, can solicit views from all interested parties, can explore all facets of law enforcement procedure and is not confined by the factual matrix of a given case and is, therefore, in a better position to attempt *73an accommodation of the competing interests and policies involved. Lumbard, The Administration of Criminal Justice: Some Problems and their Resolution, 49 A.B.A.J. 840, 846 (1963).
It is time for our legislature to recognize its responsibility in this field. It has been 65 years since Weeks and 18 years since Mapp. During this period, no legislative action has been taken to develop more effective methods of protecting the rights guaranteed our citizens by the Fourth Amendment to the United States Constitution and by Article I, Section 8, of the Pennsylvania Constitution. (This legislative inertia can be attributed, at least in part, to Mapp itself, see Weber, supra at 227, although this does not explain the legislative inaction prior to Mapp.) If the legislature adopts a valid mechanism that works, it is not unlikely that the United States Supreme Court would overrule Mapp v. Ohio, or substantially restrict the reach of the. exclusionary rule as applied to Pennsylvania (or any state adopting an effective method),15 or that the majority of this Court would modify the exclusionary doctrine as the remedy for violations of the Pennsylvania constitutional right to privacy.
For the foregoing reasons, I would affirm the judgments of sentence.
. An exclusionary rule had been fashioned earlier in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) as a remedy for simultaneous violations of both the Fourth and the Fifth Amendments.
. The significance of this point is dependent upon who is perceived to have the burden of proving that the exclusionary rule accomplishes its goal of deterrence. Given the undeniable social costs of its application, many commentators place the burden on those who maintain these costs are justified by the supposed benefits of the rule. E.g., Schlesinger, The Exclusionary Rule: Have Proponents Proven That It Is A Deterrent to Police, 62 Judicature 404, 404-05 (1979); Stone v. Powell, 428 U.S. 465, 496, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (Burger, C. J., concurring).
. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
. Assuming, of course, that the victim has the requisite standing to challenge the admissibility of the evidence and that the evidence has not been “purged of its primary taint.” Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496, 501-02 (1978) citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. It should also be noted that “judicial integrity” “does not mean that the courts must never admit evidence obtained in violation of the Fourth Amendment. The requirement that a defendant must have standing to make a motion to suppress demonstrates as much. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).” United States v. Janis, supra, 428 at 458, n.35, 96 S.Ct. at 3034.
. “Reasonable” in this context might mean that the law enforcement agent’s interpretation of the conduct involved (as being non-violative of constitutional prohibitions) is at least of “arguable merit.” (as where an appellate court splits 5-4 or 4-3 on the issue of whether or not a search and seizure violated constitutional restrictions.)
. The ALI Model Code of Pre-Arraignment Procedure § SS290.2 (Proposed Official Draft 1975) provides in relevant part:
“(2) Determination. A motion to suppress evidence pursuant to this section shall be granted only if the court finds that the violation upon which it is based was substantial or if otherwise required by the Constitution of the United States or of this State.
If the court finds a violation not to be substantial it shall set forth its reasons for such finding.
(3) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if it was gross, wilful and prejudicial to the accused. A violation shall be deemed wilful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.
(4) Circumstances to Be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (3) is substantial, the court shall consider all the circumstances including: [see text above listing six factors, (a)-(f)]
. An inherent difficulty with all of these approaches is that each introduces in varying degrees, a subjective element — the state of mind of the law enforcement officer. Mány scholars express concern that a great deal of fabrication of search and seizure events by police occurs now, at the suppression hearings. Wilkey, supra at 226, n.41. This problem would be exacerbated by the introduction of a subjective element. However, it is possible to construct safeguards such as: placing the burden of proof on the prosecution to demonstrate beyond a reasonable doubt that the unlawful conduct was undertaken in good faith, albeit mistakenly; or by stricter judicial scrutiny of the record including credibility; or by requiring objective evidence corroborating the actor’s assertions of good faith. See Weber, supra. Under the ALI approach, the subjective intent of the offender is only one of the factors considered in the determination.
It is suggested that subjective criteria often enter into an appellate court’s decisions sub siientio by subtle distortions of the standing doctrines and the substantive law of search and seizure in order to avoid application of the exclusionary rule in cases where the viola*66tion is comparatively slight and the unlawful conduct was committed in good faith. See Coe, supra at 38.
. While Milter was couched in standing language, the holding was predicated on the finding that there was no “reasonable expectation of privacy” involved, and thus, no intrusion upon protected interests. As was recognized in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the doctrine of standing and the substantive law of search and seizure are “invariably intertwined.” Justice Rehnquist noted for the majority that “we are not at all sure that the determination of a motion to suppress is materially aided by labeling the inquiry ... as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed . . .” Id. 99 S.Ct. 425.
. In Mapp, several police officers went to Miss Mapp’s residence, allegedly searching for a bombing suspect, and demanded entrance. On the advice of her attorney, she refused to let them in without a warrant. Several hours later, seven police officers forcibly broke into the residence over the objections of the attorney who was present by that time (and who the officers would not permit to see his client), ransacked the entire residence, physically man-handled Miss Mapp, and seized evidence totally unrelated to the bombing incident. While one of the officers held up a paper claimed to be a warrant, no warrant was ever introduced at trial and there was “serious doubts” whether one ever existed. There is no question that this conduct would constitute a “substantial violation” under the ALI model.
. The victim of the attempted extortion, Mrs. Joan Badzgon, was identified as the source of some of the information in the affidavit which raised the inference that appellant was the writer of the extortion letter. Information from other named sources corroborated Mrs. Badzgon by suggesting motive for the extortion. Without engaging in a protracted analysis of probable cause to search, and *68realizing that extortion charges are frequently dependent upon inferences from circumstantial evidence, the warrants seem to have been supported by probable cause to suspect evidence of extortion would be found.
. The role of factor (f) as it pertains to search and seizure cases is somewhat uncertain. According to Coe, a researcher who assisted the chief ALI reporter on this project, factor (f) was introduced initially in analogous “substantial violation” provisions concerning other areas of criminal suppression procedure, namely confessions and identification testimony. Coe suggests that (f) was retained in the search and seizure provision for the sake of symmetry, but that it is much less important in search and seizure suppression motions than in the other areas. Coe, supra at 34.
. Subsection (3) of the ALI model, the per se or “deemed” violation provision, is not relevant because the violation could not be considered to be “gross.” See discussion of factors (a) and (c) in text.
The comments to §§ 290.2 indicate that the circumstances of the instant case would not constitute a “substantial” violation. “[Djefects in the issuing process or the contents of the warrant do not support a motion to suppress unless they are of such magnitude as to trigger the “probable cause” and “particularly describing” limitations of the Fourth Amendment.” Official Comments to §§ 290.2, at 564.
. As Chief Justice Burger, one of the rule’s staunchest detractors stated:
“I do not propose, however, that we abandon the suppression doctrine until some meaningful alternative can be developed. . Obviously the public interest would be poorly served if law enforcement officials were suddenly to gain the impression, however erroneous, that all constitutional restraints on police had somehow been removed — that an open season on ‘criminals’ had been declared. I am concerned lest some mistaken impression might be fostered by a flat overruling of the suppression doctrine cases.” Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 420-421, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619 (1971) (dissenting opinion).
. Whatever method would be selected, I would recommend that the legislation attempt to provide a mechanism for testing its efficacy.