September 22, 2017

By: Dennis Whitaker

As we noted in the introductory post to this series , the Pennsylvania Supreme Court has often construed the guarantees Pennsylvania’s Constitution provides more broadly than the U.S. Supreme Court has construed the analogous provisions in the federal Constitution. Subsequent posts have taken a closer look at the right to assemble on private property, the right to appeal, the right to reputation and voting rights. In this final post, we present in more summary form two important additional areas where our Supreme Court has found enhanced protections under Pennsylvania’s Constitution.

The Pennsylvania Court has “the final word on the meaning of [Pennsylvania’s Constitution] . . . .” Pap’s A.M. v City of Erie, 812 A.2d 591, 611 (Pa. 2002). The Court outlined the four-part analysis it will apply in determining whether Pennsylvania’s Constitution provides greater protections than its federal counterpart in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). The analysis considers the text of the Pennsylvania Constitutional provision, its history including Pennsylvania case law, related case law from other states, and policy considerations to include unique issues of state and local concern and applicability within modern Pennsylvania jurisprudence. Id. at 895. Under that analysis, the Court has found enhanced protections affecting the expectation of privacy and freedom of expression.

Expectation of Privacy

Article I, Section 8 of the Pennsylvania Constitution, “Security from searches and seizures”, is our analogue to the federal Fourth Amendment. Section 8 provides:

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.

Our Supreme Court has construed Article I, Section 8 as providing a greater guarantee (expectation) of privacy then the Fourth Amendment in several circumstances. In Theodore v. Delaware Valley Sch. Dist., 836 A.2d 76, 84, 88 (Pa. 2003), the Court, in the context of a challenge to a school district’s policy of suspicionless testing of students involved in extracurricular activities for drug and alcohol use, rejected the U.S. Supreme Court’s Fourth Amendment rubric, relying instead on Article I, Section 8, which the Court held recognizes “a strong notion of privacy . . .  greater than that of the Fourth Amendment” and held such testing unconstitutional unless the school demonstrated both a need for the searches and that they would help prevent substance abuse.

In the stop and frisk context, the Court in Commonwealth v. Hawkins, 692 A.2d 1068, 1069-71 & n.1 (Pa. 1997) rejected federal precedent and held under Article I, Section 8 that an anonymous tip that a man of a particular description at a particular location was carrying a gun was not sufficient justification for police to conduct a stop and frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Similarly, in the suppression context, the Court in Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996), rejected the U.S. Supreme Court’s Fourth Amendment-based reasoning in California v. Hodari D, 499 U.S. 621 (1991) that a fleeing suspect is not “seized” unless the pursuing officers apply physical force to the suspect or the suspect heeds demands to halt, and held that under the privacy rights guaranteed by Article I, Section 8 police pursuit without probable cause or reasonable suspicion was a seizure and required suppression of contraband discarded by the defendant during the chase. Again in the suppression context, the Court in Edmunds rejected the “good faith exception” to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897 (1984), based on the protection of individual privacy rights and of the requirement for a warrant issued upon probable cause guaranteed under Article I, Section 8

The Article I, Section 8 privacy guarantee also impacted searches in Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989), where the Court rejected Fourth Amendment holdings and held that police must obtain a court order based on probable cause prior to installing a pen register (also known as a dialed number recorder; term now includes devices monitoring internet communication); in Commonwealth v. Grossman, 555 A.2d 896, 899-900 & n.3 (Pa. 1989), where the Court stated that the specificity requirement for items to be seized under a warrant is more stringent under Article I, Section 8; and in Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979), where the Court declined to follow U.S. Supreme Court precedent and, based on the privacy protections implicit under Article I, Section 8, held that a warrant supported by probable cause was required to access bank records.

Continuing in the search context, Article I, Section 8 has impacted police searches by dogs, on busses, in vehicles, and by informants. In Commonwealth v. Martin 626 A.2d 556 (Pa. 1993), the Court rejected the U.S. Supreme Court holding that a dog sniff is not a search and held that probable cause is required before a dog can sniff one’s person or possessions.  In Commonwealth v. Polo, 759 A.2d 372 (Pa. 2000) the Court held that under Article I, Section 8, individualized suspicion is required before police may board a bus and question passengers. In Commonwealth v. White, 669 A.2d 896 (Pa. 1995) the Court rejected the U. S. Supreme Court’s view of lessened expectation of privacy in a vehicle and held that under Article I Section 8 the general rule is that police need a warrant to search a vehicle. In Commonwealth. v. Brion, 652 A.2d 287 (Pa 1994), the Court held in contrast to federal law, Pennsylvania’s Constitution prohibits police from a sending confidential informant into one’s home to electronically transmit information without a warrant.

The Court also has used Article I, Section 8 to find that a defendant charged with a possessory crime has automatic standing to challenge an alleged illegal search, Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983), and to hold that consent to search cannot be requested while police are issuing a citation or a warning to a driver, Commonwealth v. Strickler, 757 A. 2d 884 (Pa. 2000)

Article I, Section 8 has not supplanted Fourth Amendment jurisprudence entirely. Our Supreme Court has held that Article I, Section 8 has no broader application in several instances: in Commonwealth v. Hughes: 836 A.2d 893 (PA 2003) the Court held that the apparent authority exception to the exclusionary rule in a search of a parolee’s premises does not violate Article I, Section 8; in Commonwealth v. Cass, 709 A.2d 350 (Pa. 1998), the Court held that the Pennsylvania Constitution offers no greater protection than the Fourth Amendment and that students’ privacy interest in a school-wide locker search was limited; in Commonwealth v. Russo, 934 A.2d 1199 (Pa 2007), the Court held that federal and state protections are coextensive with regard to open fields; in Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), the Court held that the Pennsylvania Constitution does not require police to obtain a warrant before initiating a phone call and recording the conversation; and, in Commonwealth v. Zhakir, 751 A. 2d 1153 (Pa. 2000), the Court held that the plain feel doctrine is not inconsistent with Article I Section 8 guarantees.

The circumstances discussed above do not constitute an exhaustive list. Rather they caution that a search of Pennsylvania law is required when privacy issues present themselves.

Freedom of Expression

Article I, Section 7 of the Pennsylvania Constitution provides as follows:

Freedom of press and speech; libels

The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

Just as with the expectation of privacy conferred by Article I, Section 8, the Pennsylvania Supreme Court has held in many instances that the guarantees provided by Article I, Section 7 are broader than those provided by the federal Constitution. A non-exclusive but illustrative discussion follows.

In perhaps the most well-publicized application of the broader guarantees of Article I, Section 7, the Court in Pap’s A.M. v. Erie held in the context of nude dancing (“expressive conduct”) that Article I, Section 7 offers broader protection than the federal Constitution. As such, the broader guarantees were not limited to circumstances involving censorship or prior restraint, and ordinances regulating expressive conduct must be narrowly drawn to accomplish a compelling state interest (applying strict scrutiny). See also, Commonwealth v. Davidson 938 A.2d 198 (Pa. 2007) (child porn is not protected as expressive under either the Pennsylvania or federal constitutions although the Pennsylvania Constitution provides broader protection for freedom of expression). With regard to commercial speech, the Court in Ins. Adjust. Bur. v. Ins. Comm., 542 A.2d 1317 (Pa. 1988), adopted a more protective test than the federal courts have developed under the First Amendment. As discussed in Melissa Chapaska’s earlier post in this series the Court in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981), recognized a limited free speech right on private property that is not recognized under the First Amendment. In another application of strict scrutiny under Article I, Section 7, the Court concluded in DePaul v. Commonwealth, 969 A.2d 536 (Pa. 2009) that campaign contribution limits implicate free speech and thus must be measured under that rubric. Finally, illustrating that the Court’s more expansive view of guarantees provided by Pennsylvania’s Constitution predates 1968, the Court in Goldman Theatres v. Dana, 173 A.2d 59 (Pa. 1961), held that Article I, Section 7 guarantees were offended by a requirement that a Board of Censors review and approve motion pictures even if it might not violate the First Amendment.

As with our Article I, Section 8 discussion, the above is not an exhaustive list. However, it again illustrates the principle that there may be more gold to mine in Pennsylvania’s Constitution than under the federal document and that the savvy litigator will not limit him or herself to federal law only.

There are other areas where Pennsylvania’s charter differs from the federal that may present opportunities. Article I, Section 20 (Right to Petition), discussed in tandem with Article I, Section 7 in Melissa’s post; Article I, Section 28 (Equal Rights), a provision absent from the federal document, Article I, Section 9 (Right to Counsel and to confront witnesses, jury trial) in tandem with some Rules of Criminal Procedure; and, Article V, Section 10 (c) (Supreme Court’s rulemaking and supervisory powers) come easily to mind.

If readers take nothing else from this post, they should recognize the importance of exploring and raising in good faith whether Pennsylvania’s Constitution may provide an alternative basis for relief or a defense not available under federal law. As we will discuss in a post next week, the failure to identify and raise issues at the earliest appropriate moment may result in waiver on appeal. We hope that you enjoyed our constitution series and will continue to follow Whitney Snyder’s Gerrymandering series and the other timely and informative posts including allocatur grants.

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.