Commonwealth v. Alexander, K., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: December 22, 2020
• Docket: 30 EAP 2019
• Status: Published

Opinion

[J-51-2020] [MO: Donohue, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 30 EAP 2019 : Appellee : Appeal from the Judgment of : Superior Court entered on March 5, : 2019 at No. 3246 EDA 2017 v. : affirming the Judgment of Sentence : entered on September 12, 2017 in : the Court of Common Pleas, KEITH ALEXANDER, : Philadelphia County, Criminal : Division at No. CP-51-CR-0005971- Appellant : 2016. : : SUBMITTED: April 28, 2020

DISSENTING OPINION

JUSTICE MUNDY DECIDED: December 22, 2020 I respectfully dissent from the majority’s opinion, as I would decline to overrule this

Court’s decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). In my opinion, the

majority declines to honor the tenets of stare decisis, instead opting to impart its desired

outcome in the face of a clear rule of law. Further, I do not endorse the Edmunds analysis

adopted by the majority, as I would continue to follow the analysis offered by the lead

opinion in Gary.

In Gary, Justice McCaffery, along with two other Justices, concluded that (1) Article

I, Section 8 of the Pennsylvania Constitution provides no greater protection than does the

Fourth Amendment of the United States Constitution with regard to warrantless searches

of automobiles, and (2) that under our state charter, the only prerequisite for a warrantless

search of an automobile that is needed is probable cause—no exigency beyond the inherent mobility of a vehicle is needed. See Gary, 91 A.3d at 124, 138. Then-Justice

Saylor authored a concurring opinion.

Plainly, then-Justice Saylor’s concurrence espoused the prevailing viewpoint

offered by the three other Justices. Specifically he stated his agreement with the lead

Justices in adopting the federal automobile exception. See Gary, 91 A.3d at 138 - 9

(“Although I have some reservations, for the sake of certainty and consistency, I join the

lead Justices in adopting the federal automobile exception.”). What the concurrence did

not offer is an alternative basis pursuant to which this Court should resolve the underlying

issues. Instead of recognizing the obvious meaning of this decision, the majority offers a

hair-splitting analysis that subverts the clear meaning of the majority of Justices who

considered and decided Gary. See, e.g., Majority Op. at 32-34 (“We believe that [then-

Justice Saylor’s] concurring opinion, while certainly reflecting a carefully considered view

based on this Court’s difficulties in applying the exception[,] does nothing more than

establish the narrowest rationale for the result in Gary: the bright-line federal exception

provides certainty and consistency in application.”). In this way, I disagree with the

majority’s treatment of Gary, its precedential value, and the decision’s clear and obvious

import. Rather than presenting this Court with an “unusual circumstance,” Concurring Op.

(Baer, J.) at 2, Gary’s holding requires our adherence.

Stare decisis is a “foundation stone of the rule of law.” Michigan v. Bay Mills Indian

Community, 572 U.S. 782 (Pa. 2014). It “maintains that for purposes of certainty and

stability in the law, ‘a conclusion reached in one case should be applied to those which

follow, if the facts are substantially the same.” Stilp v. Commonwealth, 905 A.2d 918,

966 - 67 (Pa. 2006) (quoting Burke v. Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa.

1953)). It commands our respect for the prior decisions of this Court, and the legal rules

contained therein. Stilp, 905 A.2d at 954 n. 31. Further, stare decisis demands we apply

[J-51-2020] [MO: Donohue, J.] - 2 our closely-decided precedents as equally as we do our unanimously decided cases. See

Kimble v. Marvel Entertainment, LLC 576 U.S. 466 (2015) (“[I]t is not alone sufficient that

we would decide a case differently now than we did then.”). When we become untethered

from our previous decisions, we instantly implicate this court’s credibility and our ability to

effectively adjudicate the many types of cases upon which litigants look to us for

guidance.1

Abandoning a precedential decision is never a small matter. I echo my colleagues’

concerns that the majority’s decision is rooted in its sincere belief that Gary was wrongly

decided. Dissenting Op. (Dougherty, J.) at 3; Dissenting Op. (Saylor, C.J.) at 3. It

damages our rule of law to disregard the language of a precedential decision simply

because the opportunity now presents itself. The reality inherent in adjudicating important

matters in this Commonwealth is that the law does not always follow one’s desired course.

Inevitably, the law will reflect policies and procedures that do not seem to fit the best

interests of the Commonwealth. See Maloney v. Valley Med. Facilities, Inc., 984 A.2d

478, 489-90 (Pa. 2009) (“[The law] develops incrementally, within the confines of the

circumstances of cases as they come before the Court.”). In my opinion, it is important

to respect the deliberative process undertaken by previous panels, as well as the

conclusions at which they arrived. In this respect, it should be of no moment that Gary is

a recent decision, or that it has not been relied upon for a longer period of time. These

considerations are not our goalposts, nor should they be. Rather, this Court must be

guided by the reasoned decision arrived at by a majority of the learned individuals of this

Court.

1Justice Dougherty’s dissenting opinion offers a cogent overview of the principles of stare decisis, and I subscribe to his analysis regarding the foundational aspects of what our law prescribes.

[J-51-2020] [MO: Donohue, J.] - 3 In its argument, the Commonwealth asserts that this Court is not “writing on a blank

slate”, and implores this Court to follow the tenets of stare decisis. Commonwealth’s Brief

at 15. It further points out that since none of our recognized reasons for revisiting

precedent exist, throwing our law back into flux would “breed cynicism and create

uncertainty.” Id. at 18. It is true that our strongly held preference for stare decisis is not

absolute. See Payne v. Tennessee, 501 U.S. 808 (1991) (“Stare decisis is not an

inexorable command; rather it is a principle of policy and not a mechanical formula of

adherence to the latest decision.”) (internal citations omitted). Our laws should be flexible

enough to “[permit] adjustment and development. . ., recognizing that precedent is not

infallible and judicial honesty demands corrective action in appropriate cases.” Olin

Mathieson C. Corp. v. White C. Stores, 199 A.2d 266, 268 (Pa. 1964). As we have stated,

this Court must not hesitate to change directions where it is truly warranted. See, e.g.,

Tincher v. Omega Flex, Inc., 104 A.3d 328, 352 (Pa. 2014). However, our judgment

should inherently encompass the wisdom to know when those situations arise. I

respectfully submit this does not fall into that category, as I am persuaded by the

Commonwealth’s rightful cause for concern.

While it is true that constitutional matters require special consideration under our

doctrine, Gary pronounced an appropriate and cognizable rule of law. As was

persuasively argued by the Commonwealth, I would uphold our rule of law and continue

to apply Gary’s bright-line ruling. See, e.g., Dickerson v. U.S., 530 U.S. 428 (2000)

(“While stare decisis is not inexorable command, particularly when interpreting the

Constitution, doctrine of stare decisis carries such persuasive force, even in constitutional

cases, that departure from precedent must be supported by some special justification.”)

(internal citations omitted). Specifically, I find no fault in the Edmunds analysis endorsed

by the majority of Justices.

[J-51-2020] [MO: Donohue, J.] - 4 Under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), we are charged with

first considering the text of the Commonwealth’s constitutional provisions. Edmunds, 586

A.2d at 895. As was pointed out by the majority, our constitution states that “[t]he people

shall be secure in their persons, houses, papers, and possessions from unreasonable

searches and seizures.” Pa. Const., Art. I, Sec. 8. The Fourth Amendment recognizes

the right of the people to be secure in their “effects.” U.S. Const. amend IV. I join Chief

Justice Saylor in concluding that the protections offered by both charters are one in the

same, as evidenced by both the text of both passages, as well as this Court’s decisions.

On multiple occasions, we have pointed out the near identicalness of both passages, and

the requisite treatment both require. See e.g., Commonwealth v. Russo, 934 A.2d 1199

(Pa. 2007) (Interpreting Article I, Section 8 the same as the Fourth Amendment in the

course of considering the extent of the open fields doctrine); Commonwealth v. Gray, 503

A.2d 921, 926 (Pa. 1985) (“[T]here is no substantial textual difference between the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution that would require us to expand the protections afforded under the federal

document.”).

In ignoring the Edmunds analysis offered in Gary, the majority offers an expansive

view of the privacy concerns that our charter allegedly envelops. However, like then-

Justice Saylor and the majority of Justices in Gary, the most persuasive evidence to me

is the sheer congruity of both passages. The majority dismisses this analysis, saying “we

must consider our charter as a whole in terms of establishing a set of normative values

that limits the government’s authority to search without a warrant, as opposed to the

dissent’s view, which attempts to divine the framers’ intent based solely on a textual

comparison of Article I, Section 8 and the Fourth Amendment.” Majority Op. at 49. I

respectfully suggest that our normative values are derived from the very words we use.

[J-51-2020] [MO: Donohue, J.] - 5 As the majority of Justices in Gary decided, we need not look past the text of both charters

to understand and apply their meaning.

Moreover, under the fourth Edmunds factor, we are charged with evaluating the

policy considerations underlying our decisions, including issues of state and local

concern. Edmunds, 586 A.2d at 895. The majority adopts Justice Todd’s dissent in Gary,

which, in regards to this portion of the Edmunds analysis, concluded that the lead decision

failed to adequately acknowledge the role technological advancements has played in

terms of securing a warrant. See Gary, 91 A.3d at 154 – 160. The majority opinion cites

Justice Todd’s dissent specifically to say that “police officers [are] eminently capable as

trained professionals of making a basic assessment of whether it is reasonably

practicable for them to seek a warrant, under all of the circumstances existing at the time

they wish to search an automobile.” Majority Op. at 20 (citing Gary, 91 A.3d at 159).

While the advent of technology has certainly transformed the ways in which courts

envision the warrant securing process, I believe it best to defer to the Commonwealth

regarding its expertise in terms of policing. As evidenced by this Court’s own fractured

viewpoints, it can be difficult to advance and maintain a clear rule of law that properly

balances effective law enforcement with individual liberties. This discord is a living reality

for those who are charged with enforcing our laws, oftentimes in fast-moving and

imprecise scenarios. In my opinion, the majority’s decision does not adequately

contemplate the stated needs of law enforcement; rather, it adopts a viewpoint that merely

shifts, yet again, the decision-laden police officer’s inquiry. I respectfully submit Gary’s

holding should stand, in part because it offered a bright-line rule already in effect

throughout this Commonwealth, and because it deferred to the needs of those we entrust

with the difficult job of policing.

[J-51-2020] [MO: Donohue, J.] - 6 By failing to honor Gary, the majority’s decision imposes upon the principles of

stare decisis and impedes the credibility over which we preside the important issues

before us. In so doing, it throws into impunity an Edmunds analysis that properly

contemplated the levels of federalism dictated by our state charter and the United States

Constitution. Based on these considerations, I respectfully dissent.

[J-51-2020] [MO: Donohue, J.] - 7