Preview:

[J-154-2000] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellee, : : : v. : : : SHAWNEY PERRY, : : Appellant. : : COMMONWEALTH OF PENNSYLVANIA, : : Appellee, : : : v. : : : BRETT STEWART, : : Appellant. : : : No. 11 EAP 2000 No. 12 EAP 2000 Appeal from the Judgment of the Superior Court Entered on September 13, 1999 at No. 1313 Philadelphia 1998, Reversing the Order of the Court of Common Pleas of Philadelphia County on March 11, 1998 at No. 1016 June Term 1996. 740 A.2d 712 (Pa. Super. 1999). ARGUED: October 18, 2000

CONCURRING OPINION

MR. JUSTICE CASTILLE

DECIDED: June 3, 2002

I concur in the result reached in the lead opinion. If an exigency were required to search an automobile where there exists probable cause beyond (1) the inherent exigency presented by the mobility of the vehicle (the traditional exigency that permits a warrantless

vehicle search under the Fourth Amendment), and (2) the lack of an opportunity for police to secure a search warrant before probable cause to search the vehicle arose unexpectedly (an additional exigency uniquely required by Pennsylvania caselaw), then I would certainly agree with Mr. Justice Cappy's lead opinion that the danger to police here justified this particular search. However, I write separately because I do not believe that this Court's existing jurisprudence requires, nor do I think that our jurisprudence should require, any exigency beyond the mobility of a vehicle and the unexpected development of probable cause. Accordingly, I respectfully disagree with the analytical approach employed by the lead opinion. I also write separately because I believe our jurisprudence in this important area has lacked precision and I hope that an exploration of that jurisprudence might provide some guidance in future cases involving automobile searches. I am on record elsewhere as indicating my belief that the parameters of the automobile exception should be the same under Article I, Section 8 of the Pennsylvania Constitution as under the Fourth Amendment. See Commonwealth v. Luv, 735 A.2d 87, 95 (Pa. 1999) (Castille, J., concurring); Commonwealth v. White, 669 A.2d 896, 909-10 (Pa. 1995) (Castille, J., dissenting). Although that remains my considered belief, I do not advocate that co-extensive rule in the case sub judice. I recognize that our jurisprudence has taken a different turn in the past decade. Specifically, I accept that, unlike the Pennsylvania automobile exception cases that preceded and accompanied it, White contains a holding that was rendered under Article I, Section 8. Since the case sub judice involves no challenge to the propriety of this Court's Article I, Section 8 jurisprudence in this area, I fully recognize the force of stare decisis. Yet, recognizing stare decisis is only the beginning of the analysis. My disagreement with the lead opinion concerns what in fact is commanded by stare decisis in the area of automobile searches. To be more precise, in my view the actual holdings in our previous cases, including White, do not command the construct the lead opinion has extrapolated from mere dicta in White. In addition, I write

[Nos. 11 and 12 EAP 2000] - 2

separately to explain why I believe that dicta is unpersuasive and should not become the law. Since my disagreement with the lead opinion concerns the precedential value of White, it is perhaps best to begin with a discussion of stare decisis. "The rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different." Commonwealth v. Tilghman, 673 A.2d 898, 903 n.9 (Pa. 1996), citing Burke v. Pittsburgh Limestone Corp., 100 A.2d 595 (Pa. 1953). jurisprudential principles, stare decisis is not an absolute: The doctrine of stare decisis was never intended to be used as a principle to perpetuate erroneous principles of law. While we fully ascribe to Lord Coke's evaluation of the importance of certainty in the law, this end obviously cannot outweigh the necessity of maintaining the purity of the law. The court's function is to interpret legislative enactments and not to promulgate them. Where, as here, by our decisions . . ., the Court distorted the clear intention of the legislative enactment and by that erroneous interpretation permitted the policy of that legislation to be effectively frustrated, we now have no alternative but to rectify our earlier pronouncements and may not blindly adhere to the past rulings out of a deference to antiquity. Mayhugh v. Coon, 331 A.2d 452, 456 (Pa. 1975);1 see also Ayala v. Philadelphia Bd. of Public Ed., 305 A.2d 877, 888 (Pa. 1973) ("[T]he doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly growth processes of the law to flourish"). Accord Allen v. Mellinger, 784 A.2d 762, 767 (Pa. 2001) (overruling Woods v. Commonwealth, Dep't of Transp., 612 A.2d 970 (Pa. 1992) because reasoning of that decision "was fundamentally flawed"). The doctrine only applies to issues actually raised, argued and adjudicated, and While Mayhugh spoke of legislative enactments, the principle it restates is, of course, no less applicable to constitutional provisions.
1

Like most

[Nos. 11 and 12 EAP 2000] - 3

only where the decision was necessary to the determination of the case. See BLACK'S LAW DICTIONARY 1406 (6th ed. 1990). "The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta." Id. After carefully reviewing this Court's jurisprudence in this area, and giving due respect to stare decisis, it is my considered view that this Court's state constitutional precedent is not nearly so hostile to reasonable searches of automobiles as suggested by the lead opinion's approach, which is adopted from language in White that is, in my view, both dicta and constitutionally suspect. The warrantless search of the vehicle in this case was proper under Article I, Section 8 because probable cause arose unexpectedly, before police had a chance to secure a search warrant. That probable cause arose unexpectedly is all the exigency I would require under Article I, Section 8 -- since that is all that is required by the actual holdings of this Court's cases explicating the automobile exception, see, e.g., Commonwealth v. Luv, 735 A.2d 87 (Pa. 1999); Commonwealth v. White, 669 A.2d 896 (Pa. 1995); Commonwealth v. Rodriguez, 585 A.2d 988 (Pa. 1991); Commonwealth v. Baker, 541 A.2d 1381 (Pa. 1988), and since any other rule is unjustifiably hostile to perfectly reasonable police conduct. The lead opinion's principal focus is upon White.2 The lead opinion extrapolates from White a quasi-legislative construct governing automobile searches that sets forth various multi-part tests depending upon the type of exigency that is perceived. In so doing, the lead opinion construes exigencies that were not the basis for the holding in White, but

The lead opinion explains its focus upon White by stating that White is the case the parties "have focused on," each claiming that it compels a favorable ruling. In point of fact, the Commonwealth's primary argument is that this case is controlled by Baker, Rodriguez, and Luv. See Brief for Appellee at 16-18, 20-22. The Commonwealth then argues -correctly as my analysis below will make clear -- that the holding in White (as opposed to the dicta the lead opinion elevates) is consistent with Baker. See id. at 18-19.

2

[Nos. 11 and 12 EAP 2000] - 4

instead were additional exigencies that the White Court merely "spoke to," "touched upon," or "addressed." Slip op. at 7-9. White, however, is not binding precedent for the

proposition that this Court follows an Article I, Section 8 approach to automobile searches that was consciously distinct and different from the approach commanded by the Fourth Amendment, much less commanded by anything unique to the Pennsylvania constitutional experience. By characterizing White as such precedent, the lead opinion perpetuates an unfortunate misapprehension of White that began with the non-precedential plurality opinion in Commonwealth v. Labron, 690 A.2d 228 (Pa. 1997) (Labron II). Moreover, even if White's holding constituted such a forthright, distinct and acknowledged state constitutional precedent, the lead opinion relies upon portions of White that were dicta. The lead opinion states that Pennsylvania constitutional law requires "both a showing of probable cause and exigent circumstances" to conduct a warrantless search of an automobile, while the Fourth Amendment, of course, has long required only a showing of probable cause. Slip op. at 6 & n.4. See Maryland v. Dyson, 527 U.S. 465 (1999); Pennsylvania v. Labron, 518 U.S. 938 (1996); California v. Carney, 471 U.S. 386 (1985); Chambers v. Maroney, 399 U.S. 42 (1970). The requirement of an exigency beyond the mobility of the vehicle indeed found its way into this Court's jurisprudence concerning the automobile exception to the warrant requirement. See, e.g., Commonwealth v. Baker, 541 A.2d 1381, 1383 (Pa. 1988); Commonwealth v. Cockfield, 246 A.2d 381, 384 (Pa. 1968). However, that jurisprudence never stated that this was a requirement of Article I, Section 8, distinct from the parameters of the Fourth Amendment, and dictated by something unique to the Pennsylvania constitutional experience. To the contrary, the cases reflecting this exigency requirement relied primarily, and often exclusively, upon cases from the U.S. Supreme Court or cases from this Court construing the Fourth Amendment. See

Commonwealth v. Kilgore, 677 A.2d 311 (Pa. 1995) (Kilgore I) (Fourth Amendment decision citing Pennsylvania cases, including Labron I and Fourth Amendment decision in

[Nos. 11 and 12 EAP 2000] - 5

Cockfield, for proposition that exigency beyond mobility of vehicle is required for automobile search); Commonwealth v. Labron, 669 A.2d 917 (Pa. 1995) (Labron I) (citing federal and state cases interchangeably, with no distinction drawn between Fourth Amendment and Article I, Section 8); White, 669 A.2d at 899 (quoting extensively from federal law set forth in Chambers v. Maroney; no distinction drawn or articulated);3 Commonwealth v. Ionata, 544 A.2d 917 (Pa. 1988) (Opinion Announcing Judgment of Court) (relying upon Pennsylvania cases construing Fourth Amendment or Fourth Amendment and Article I, Section 8 coterminously; no distinction drawn); Baker, 541 A.2d at 1383 (no distinction drawn). Accord Commonwealth v. Milyak, 493 A.2d 1346 (Pa. 1985); Commonwealth v. Holzer, 389 A.2d 101 (Pa. 1978). The most that can be said about this Court's automobile exception jurisprudence as reflected in the contemporaneous decisions in White, Kilgore I, and Labron I is that the Court treated the Fourth Amendment and Article I, Section 8 as coterminous on the question of whether some exigency must be shown to justify a probable cause-based, warrantless search of an automobile. This Court's requirement of an exigency beyond the mobility of the vehicle proved to be erroneous as a Fourth Amendment matter. The U.S. Supreme Court made this abundantly clear by summarily reversing Kilgore I and Labron I. See Pennsylvania v.

Labron, 518 U.S. 938 (1996).4 (The Commonwealth did not seek certiorari in White.)

Although the appellant in White apparently invoked only Article I, Section 8, the Court's automobile exception analysis nevertheless endorsed and followed the same coterminous approach followed in all of our cases, relying heavily upon Fourth Amendment authority. It is not unusual for a higher court to ultimately disapprove of a line of authority that a lower court has developed in the daily task of construing the higher court's governing precedent. See, e.g., Sphere Drake Ins. Co. v. Philadelphia Gas Works, 782 A.2d 510 (Pa. 2001) (disapproving Modern Shoppers World Mt. Airy Corp. v. Philadelphia Gas Works, 643 A.2d 136 (Pa.Cmwlth. 1994) (en banc), allocatur denied, 652 A.2d 1327 (Pa. 1994)); Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (disapproving Superior Court line of
(continued...)
4

3

[Nos. 11 and 12 EAP 2000] - 6

The case which first purported to convert what had been this Court's coterminous approach to the automobile exception into a separate and more exacting state constitutional command under Article I, Section 8 was the very brief Opinion Announcing the Judgment of the Court in Commonwealth v. Labron, 690 A.2d 228 (Pa. 1997) (Labron II) which issued upon remand following the U.S. Supreme Court's reversal. The plurality opinion in Labron II, of course, is not binding precedent. E.g., Hoy v. Angelone, 720 A.2d 745, 750 (Pa. 1998); see also Interest of O.A., 717 A.2d 490, 496 n.4 (Pa. 1998) (Opinion Announcing Judgment of Court by Cappy, J.) ("While the ultimate order of a plurality opinion, i.e. an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority"). The Labron II plurality would have "reaffirm[ed]" the holding in Labron I and "explicitly note[d]" that Labron I was "in fact" decided upon independent state grounds, i.e., Article I, Section 8. Labron II, 690 A.2d at 228. The plurality found independent state constitutional underpinnings in Labron I because it had relied upon White. Id. According to the plurality, White: [had] discussed the automobile exception and noted that, "this [C]ourt, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance than has the United States Supreme Court, and under the Pennsylvania balance, an individual's privacy interests are given greater deference than under federal law." Id., quoting Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995). It was only "[f]ollowing this citation to White," the plurality stated, that Labron I "concluded . . . that `this Commonwealth's jurisprudence of the automobile exception has long required both the

(...continued) authority interpreting landmark sentencing decisions in Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977), and Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976)).

[Nos. 11 and 12 EAP 2000] - 7

existence of probable cause and the presence of exigent circumstances to justify a warrantless search.'" Labron II, 690 A.2d at 228, quoting Commonwealth v. Labron, 669 A.2d 917, 924 (Pa. 1995) (Labron I). The Labron II plurality's non-binding characterization of both Labron I and White, however, was erroneous. First, there is no indication in the opinion in Labron I that the constitutional approach followed there ("this Commonwealth's jurisprudence") was any different under the Pennsylvania Constitution than under the Fourth Amendment. Labron I never cited, quoted, or relied upon the "different [state constitutional] balance" language in the White opinion in explicating the automobile exception. Indeed, Labron I embraced the same coterminous approach, reliant exclusively upon Fourth Amendment cases for substantive precedent, that all of our cases had employed to that point. Second, in point of fact, Labron I could not have accurately cited White for the proposition attributed to White by the Labron II plurality opinion, i.e., that this Court "has struck a different balance" under Article I, Section 8 with respect to the automobile exception. The White Court never said any such thing. The "different [state constitutional] balance" discussion in White, which was quoted by the Labron II plurality, did not involve the automobile exception to the warrant requirement, but rather the search incident to arrest exception. See also

Commonwealth v. Luv, 735 A.2d 87, 92 (Pa. 1999) (opinion by author of White recognizing twin holdings). This analysis occurred after White had already disposed of the automobile exception claim there. In striking its different state constitutional balance on the search incident to arrest question, the White Court rejected the Fourth Amendment holding in New York v. Belton, 453 U.S. 454 (1981) (under Fourth Amendment, police officer may, as contemporaneous incident to arrest of occupant of automobile, search passenger compartment of vehicle) and stated that "there is no justifiable search incident to arrest

[Nos. 11 and 12 EAP 2000] - 8

under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody . . . ." White, 669 A.2d at 902. In short, although the automobile exception claim in White was raised only under Article I, Section 8 and therefore resulted in an Article I, Section 8 holding, nothing in White remotely suggested that the Pennsylvania Constitution commanded a fundamentally different approach to the automobile exception than is employed under the Fourth Amendment. Indeed, given how explicit the White Court was in rejecting Belton and setting forth distinct Pennsylvania constitutional doctrine on the search incident to arrest question, the absence of a similar approach in the discussion of the automobile exception ineluctably suggests that the Court simply perceived no such distinction. Instead, White decided the automobile exception question by employing the same coterminous, Fourth Amendmentbased construct this Court had developed and followed for years, before the reversal in Pennsylvania v. Labron, 669 A.2d 917 (Pa. 1995) (Labron I). Although the lead opinion today is careful not to cite to the flawed Labron II plurality, its identical conclusion that White deliberately and consciously established a separate and distinct state constitutional construct is no less erroneous. The very language and structure of the White decision, as well as the cases which preceded and shaped the analysis in White, inform against the lead opinion's characterization of the decision. The reliance upon White in the instant matter is even more dubious because the lead opinion relies upon parts of White that were not necessary to the decision. To compound matters, this dicta is extremely problematic in its own right. The White opinion sets forth what the lead opinion here describes as the state constitutional test for the "first" exigent circumstances exception to the warrant requirement as follows: In sum, the general rule is that a search warrant is required before police may conduct any search. As an exception to this rule, police may search a vehicle without a warrant where: (1) there is probable cause to believe that

[Nos. 11 and 12 EAP 2000] - 9

an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and [the] contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e., there are exigent circumstances. 669 A.2d at 900 (emphasis in original). It is the "occupants of the automobile are likely to drive away" element of this tripartite formulation that causes the lead opinion to reject application of this exception to the search here and to focus exclusively upon the separate exigency of a potential danger to the police. See slip op. at 9 (since there was no danger of automobile leaving, exigent circumstances did not exist under that theory). But this "occupants ... likely to drive away" language from White is not, and should not become, a state constitutional requirement in cases involving automobile searches. Since the White Court's articulation of this "required element" was not even a part of the actual holding of the case, much less essential to the holding, it was dicta under any rational approach to precedent. See Hunsberger v. Bender, 180 A.2d 4, 6 (Pa. 1962) (statement in prior opinion, which clearly was not decisional but merely dicta, "is not binding upon us"); In re Estate of Cassell, 6 A.2d 60, 61 (Pa. 1939) (comments not necessary to decision of case are dicta and, therefore, are not binding authority); Valles v. Albert Einstein Medical Center, 758 A.2d 1238, 1246 (Pa. Super. 2000) (same). The Court in White did not even discuss the "occupants ... likely to drive away" requirement in explaining why it disapproved that warrantless search. Instead, the Court disapproved of the search on the ground that police "knew in advance what automobiles might be involved [in a drug transaction] and could have requested warrants for the search of the automobiles." White, 669 A.2d at 901. Accordingly, it was the advance knowledge of the police, and not the likelihood that "unless the car is searched or impounded, the occupants of the automobile are likely to drive away and [the] contents of the automobile may never again be located by

[Nos. 11 and 12 EAP 2000] - 10

police," which defeated the claim of "unforeseen" or exigent circumstances in White. Id. See also Commonwealth v. Luv, 735 A.2d 87, 92-93 (Pa. 1999) (opinion by author of White interpreting its holding); Commonwealth v. Labron, 669 A.2d 917, 923-24 (Pa. 1995) (Labron I) (same). In order to make clear just how indisputable this point is, the entirety of White's actual automobile exception holding is set forth below: The present case, with respect to the "automobile exception," is analytically identical to Ionata. In both cases the police had ample advance information concerning the fact that a search of an automobile would likely be involved in apprehending the suspect. When that is true, a warrant is required before the automobile may be searched. As the United States Supreme Court stated in Chambers v. Maroney: Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable.... 399 U.S. at 51, 90 S.Ct. at 1980-81, 26 L.Ed.2d at 428. (Emphasis added.) In other words, although the Fourth Amendment generally requires probable cause to be determined and a warrant to be issued by a magistrate before a search may be conducted, unforeseen circumstances involving the search of an automobile coupled with the presence of probable cause, may excuse the requirement for a search warrant. In Ionata and in this case, there were no unforeseen circumstances. Police knew in advance what automobiles might be involved and could have requested warrants for the search of the automobiles, just as they did for persons and dwellings. Superior Court was in error, therefore in determining that the search was permissible under the "automobile exception" and that exigent circumstances existed to justify the search. 669 A.2d at 900-01 (footnote omitted). Thus, irrespective of what White said in dicta, the actual automobile exception decision and holding followed from the fact that probable cause did not arise unexpectedly. In this regard, the holding was perfectly consistent with

[Nos. 11 and 12 EAP 2000] - 11

previous cases such as Baker and Ionata, and reflected this Court's understanding (which ultimately proved mistaken) of the Fourth Amendment automobile exception. In addition to revealing the very narrow holding in White, the passage above is also significant because it cites to cases from the U.S. Supreme Court and adverts to the Fourth Amendment without a hint of disapproval or disagreement. The passage thus demonstrates just how

dependent the holding in White was upon the Court's ongoing perception of Fourth Amendment law, and how obvious it is that there was no separate and distinct state constitutional analysis at work. The lead opinion dismisses this reading of White as representing a "[c]asual and convenient application of the dicta label." Slip op. at 12-13 n.9. This is not so. The lead opinion's interpretation does not draw any distinction between mere "discussions" in opinions and constitutional "holdings." It is steadfast in this regard even when the

"discussion" is distressingly problematical. Virtually the entirety of the lead opinion's criticism of this concurrence, including its mischaracterization of the dissent in White, id. at 14, derives from its rejection of such a distinction. This concurrence does not employ dicta as a mere "label" but as an accurate description of the non-essential and erroneous discussion in White. The fact of the matter is that the automobile exception holding in White, which I have been careful to quote above so that it not be misunderstood, does not involve an application of the "discussion" the lead opinion would promulgate as settled and binding state constitutional doctrine.5 My dissenting opinion in White responded to the White majority's actual holding on the question of the automobile exception -- a holding that never even purported to be promulgating a view of Article I, Section 8 that was different and distinct from the Fourth Amendment. The White dissent then argued for a rule that would not require even the added exigency of probable cause arising unexpectedly which had crept largely unnoticed (or certainly unacknowledged) into this Court's automobile exception cases such as Baker and Rodriguez. That rule, of course, is the rule that the U.S. Supreme Court subsequently applied when it reversed Kilgore I and Labron I. The issue is entirely different in this case
(continued...)
5

[Nos. 11 and 12 EAP 2000] - 12

The lead opinion's reliance upon the White dicta is problematic for a further reason. Far from establishing a separate state constitutional search and seizure construct, the White dicta setting forth the lead opinion's so-called "first" exigent circumstances exception, like the White holding, was "summarizing" the White Court's understanding of Fourth Amendment law. White, 669 A.2d at 900. Specifically, in setting forth this would-be exception, the White Court stated that it was merely summarizing an immediately preceding quotation from Chambers v. Maroney, 399 U.S. 42, 51 (1970), which in turn characterized the U.S. Supreme Court's decision in Carroll v. United States, 267 U.S. 132 (1925). It is from Chambers' characterization of Carroll that the White Court extrapolated from Fourth Amendment authority the would-be required element of: "unless the car is searched or impounded, the occupants of the automobile are likely to drive away and [the] contents of the automobile may never again be located by police." White, 669 A.2d at 900. More importantly, White's characterization of Chambers/Carroll was mistaken. The White characterization overlooked the very next paragraph in the Chambers opinion, which reads as follows: Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the "lesser" intrusion is permissible until the magistrate authorizes the "greater." But which is the "greater" and which the "lesser" intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

(...continued) because the lead opinion now seeks to promulgate the suspect White dicta as state constitutional doctrine, and its decision in this regard is essential to its analysis.

[Nos. 11 and 12 EAP 2000] - 13

399 U.S. at 51-52 (emphasis added). Thus, to the extent the White dicta embraced by the lead opinion would require the "occupants ... likely to drive away" element, it was an erroneous characterization of the very Fourth Amendment authority it was "summarizing." We should acknowledge the mistake, not perpetuate it. Furthermore, White's misapprehension of federal law in this regard stands in contrast to this Court's prior decisions in Baker and Milyak. In both of those cases, this Court recognized Chambers' instruction that an alternative to an immediate car search is to immobilize the vehicle until a warrant is secured but that, since immobilization is not necessarily less intrusive than an immediate search, an immediate search, rather than immobilization, is constitutionally proper. Commonwealth v. Baker, 541 A.2d 1381, 138384 (Pa. 1988); Commonwealth v. Milyak, 493 A.2d 1346, 1349 (Pa. 1985). I simply cannot join the lead opinion in converting a mistaken summary of Fourth Amendment law in the White dicta into a "binding," novel state constitutional search and seizure construct. Pennsylvania constitutional jurisprudence should be made of sterner stuff.6 The lead opinion suggests that this concurrence is contrary to a "declaration by our court [in White] affording our citizens broader protections under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment of the United States I also would not adopt the erroneous dicta in White because this radical, novel construct was not arrived at through an actual state constitutional analysis. In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), this Court stated that it is "essential" that a court undertaking an independent analysis of Article I, Section 8 consider "at least" four specific areas: the text of the Pennsylvania constitutional provision; the history of the provision, including Pennsylvania case law; related case law from other states; and policy considerations unique to Pennsylvania. Id. at 895. The construct set forth in the White dicta was not supported by an Edmunds analysis, nor by any concerns that could be deemed unique to Pennsylvania constitutional jurisprudence. Quite to the contrary, the source for the White dicta was an incomplete quotation from Chambers, a Fourth Amendment case from the U.S. Supreme Court, which changed the central message of the quotation.
6

[Nos. 11 and 12 EAP 2000] - 14

Constitution." The lead opinion asserts that this "declaration" is "binding precedent." Slip op. at 12. In point of fact, as demonstrated above, White contains no such declaration with respect to the automobile exception. Moreover, the fact that this Court has held that Article I, Section 8 affords broader protections than the Fourth Amendment in some contexts does not mean that it automatically requires different and greater protections in all contexts. As this Court noted in Commonwealth v. Glass, 754 A.2d 655, 660 (Pa. 2000): the fact that this Court has "accorded greater protections to the citizens of this state under Article I,

Download j-154-2000co1.pdf

Pennsylvania Law