Commonwealth v. Alexander

Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Intro (00:00):
The Supreme Court of Pennsylvania is the highest
court in the Commonwealth andthe oldest appellate court in
the nation, an institution thatshapes our practice, our laws,
and our lives. This is a podcastby attorneys and for attorneys
who argue before Pennsylvania'scourt of final appeal. Welcome
to The Standard of Review bySCOPAblog.

Corrie Woods (00:26):
Hi, and welcome to The Standard of Review by
SCOPAblog. I'm your host, CorrieWoods, and I recently sat down
with attorney Aaron Marcus,Chief of Appeals with the
Defender Association ofPhiladelphia, who successfully
argued the case of Commonwealthvs. Alexander, in which the
court held that the Pennsylvaniaconstitution grants motorists
greater privacy rights than theFederal Constitution, requiring

(00:48):
that any search of an automobilein Pennsylvania be supported not
only by probable cause, as theFederal Constitution requires,
but also by exigentcircumstances that make it
impracticable to obtain awarrant. The court's decision
depending on your point of view,either overrules or recognizes
the invalidity of its priordecision in Commonwealth vs.

(01:08):
Gary, which held that suchsearches need only be supported
by probable cause. In the shortterm the decision has resulted
in the invalidation of countlesssearches as unconstitutional,
and in the long termrecalibrates the balance between
individual privacy rights andthe state's interest in
ferreting out crime. Let'slisten.
Our guest today is attorneyAaron Marcus. Aaron is the Chief

(01:31):
of the Appeals Unit with theDefender Association of
Philadelphia, where he servedsince 2006. He's also an adjunct
professor of law at the DelawareLaw School, a published legal
author and vice chair ofPennsylvania's criminal
procedural rules committee.
Prior to joining the DefenderAssociation, Attorney Marcus
served as a staff attorney forthe United States Court of
Appeals for the Third Circuit.

(01:51):
Attorney Marcus is also an avidcyclist. And in 2011, made a
58-day 3900 mile self-supportedbicycle trip from Philadelphia
to San Francisco. AttorneyMarcus, welcome to The Standard
of Review.

Aaron Marcus (02:05):
Thanks so much.
It's a pleasure to be here.

I wonder if you could start out by just telling
me sort of how you became alawyer, why you became a lawyer,
and how you came to your currentpractice.

So you know, I went to law school in Minnesota
in 2001. But to start beforethat, I did not intend to be a
lawyer. You know, I've alwaysbeen involved as a kid and
through high school and sort ofpolitical activism in some way
or another, but never envisionedmyself as being somebody who

(02:37):
would pursue a sort ofprofessional or legal career. In
fact, or in college, I thought Iwanted to be a geologist to
pursue science, and focusedpretty heavily on that
throughout much of my undergrad.
Until of course, I realized thatsome of the advanced mathematics
was getting a little outside ofmy comfort zone. And I was not
particularly enjoying that levelof scrutiny that I was having to

(02:59):
pay to, you know, address someof the tougher scientific
quandaries. And, you know, mypolitical activism drew me back
in. So I ultimately decided thatlaw school was the right
approach and pretty much fromthe get go knew that public
defense was sort of an area thatI would want to pursue. So even
from the start in Minnesotaafter my first year, I worked

(03:19):
for the Minnesota appellatepublic defender office in the
state. I was involved in thepublic interest lawyers section
of the Minnesota bar and knewkind of that area was where I
was going to be despite the factthat I clerked for a couple
years after law school, I waspretty committed to being a
career PD in that respect. Soonce I left the Third Circuit, I

(03:42):
started at the DefenderAssociation and have been here
ever since. You know, it's now,I started in September of 2006.
So going on 15 years at theDefender, you know, six years,
the trial side, you know, lastnine in appeals. So, it's been a
great experience. And I love myjob, you know, I love many of my

(04:03):
clients, I love the people Iwork with. And I like having an
opportunity to really affect thelaw and how it develops in a
state. That's, you know, thesixth largest state in the
nation. So there's a lot ofpeople who are who can be
directly impacted by reallythoughtful and dedicated state
activity on the legal side. Soit's kind of where I've been

(04:24):
focusing my efforts and reallyenjoy it.

So you mentioned that you worked in both the
trial unit and the appeals unit.
Could you explain sort of howyour function is kind of
different and how those tasksare kind of different?

Yeah, absolutely.
I mean, the obvious differencesare clear, so I won't need to
talk about that. But when youare certainly as either a public
defender doing criminal defenseor you know, private or frankly,
trial practice in any respect isgoing to be a very different
method of preparing andaddressing a case as opposed to

(04:56):
appellate work. So I thinkthey're interrelated in some
degree, because being a havingexperience on the trial side can
make one a much better appellateattorney, I think as you can
understand the record and themotivations and the interests of
the parties below in a way thatyou wouldn't otherwise. You
know, so as a trialpractitioner, you definitely see

(05:19):
a lot of the practical side ofthe law, right, like, as an
appellate lawyer, a lot of it isgoing to be the nuance of
textual and statutoryinterpretation, the policy
questions of how particulardecisions might affect the
outcome, and you're going to bereally parsing a lot of the

(05:41):
nuances of prior decisions andprecedent. Whereas in trial
practice, while all of thosethings are important and
relevant, oftentimes, the mostimportant aspect of trial work
might be the practical result ofhow the judge or the jury will
interpret a particular thing oraction, which can often be

(06:03):
simply just sort of a shrug andknowing when not to present
things, knowing when to presentthem. And really just
understanding sort of the thehuman nature of the parties
involved and trying to worksometimes your way around some
of those legal realities to geta resolution that everyone can
be comfortable with, even ifit's not necessarily a clear

(06:24):
straight line through legalprecedent. So there's there's a
lot of difference in strategyand thinking that goes into a
trial side than goes into theappellate side. But often being
a good trial attorney and havingthat experience will
fundamentally shift the way yousee the arguments that were made
at the trial, what things wereor were not important how you
can understand your forum, evenon appeal, because a judge who

(06:48):
has, an appellate judge, thathas trial practice experience or
trial experience, meaning ifthey were a, you know, in
federal side, that districtcourt judge or in Pennsylvania,
if they were a Common Pleascourt judge, they are often
going to have a very differentperspective on what a particular
decision meant, what aparticular statement by a

(07:10):
witness means and why it wasmade what is or is not harmless
error. So a variety of thingscan impact that and
understanding those details. Youknow, there's a legal realist in
me and understanding thosedetails can be very valuable. So
having both sides of thepractice, I think, is wonderful
experience to be a goodappellate lawyer.

So we're here today to talk about the Court's
decision in Commonwealth vs.
Alexander. And in that case, thecourt held that unlike the well,
the current interpretation ofthe Federal Constitution,
Pennsylvania's Constitutionrequires that the search of an
automobile must be supported notonly by probable cause, but also
by exigent circumstances. Butthe history of Alexander

(07:52):
actually starts up a whilebefore that, really in the
1990s, during the first wave ofwhat would ultimately be called
judicial federalism. And thecourt's adoption of what it
actually ended up adopting inAlexander, way back when. So how
did the split between theFederal Constitution and the
Pennsylvania Constitution onthis question, how did that
begin?

Yeah, so you mentioned the 90s. And I'd
actually like to take it backeven further, frankly, you know,
so, as a general matter, right,the big split did begin in the
90s with Commonwealth v. Edmondsand I believe that case was
1991, in which the PennsylvaniaSupreme Court was addressing the

(08:36):
US Supreme Court's decision inUnited States v. Leon, which
applied a good faith exceptionto the Fourth Amendment's
exclusionary rule. Right forthose who are not particularly
versed in that area.
Essentially, what Leon held isthat, you know, because the
Fourth Amendment, the UnitedStates Constitution was not
designed to protect privacyrights, per se, but designed to
deter unlawful governmentalaction of invading protected

(09:00):
Fourth Amendment spaces, when anofficer is acting under a
reasonable belief that that'swhat the law allows, hence, good
faith, you can't deter anofficer who's acting reasonably
and in good faith. So therefore,there's an exception to the
exclusionary rule. Pennsylvaniadecided that, you know, Leon
really doesn't make a lot ofsense and they interpreted

(09:21):
looking under a case calledCommonwealth v. Edmunds that
Pennsylvania's constitution,actually historically has been
interpreted more broadly, it's adifferent policy protection such
that the right of privacy isinherent in Pennsylvania's
article one section eight. Sothere's a different purpose to
Pennsylvania's constitutionalprotection and because of that

(09:44):
right to privacy, our courtinterpreted with respect to the
good faith law that no we don'tcare if the officer was
reasonable. What we care aboutis protecting individual rights
to privacy and therefore, thegood faith exception does not
apply in Pennsylvania. With thewith respect to the vehicle
exception, the automobileexception, right in that aspect,
I wanted to take it back evenbefore Edmunds because, you

(10:07):
know, you go back to the 1920sand 30s, with the prohibition in
United States v. Carroll, orCarroll v. United States. What
happened in that case was reallya question about the police need
to deal with emerging and noveltechnology and sort of an
equilibrium adjustment in theFourth Amendment, right. That's
a term that we hear a lot in theareas of digital technology.

(10:30):
Well, all technological changesthat happen need to be
considered and adjusted with,you know, a balance between
citizens rights and police. Andso, you know, prohibition,
you've got this idea where,well, now, people, criminals,
bootleggers have a real easy wayto transport all sorts of

(10:50):
illegal goods in cars that wenever really had before. And
police need some way toadequately address the sort of
inherent mobility of cars and beable to search these vehicles
when there's, especially in the20s and 30s. There's no way
they're going to get a warrant,when they come across a
bootlegger trying to cross statelines, they're not going to be
able to get- have enough time todo this unless they detain

(11:11):
everybody for who knows how longto find somebody to issue a
warrant. So the courts basicallygranted an exception, but that
exception still required aprobable cause plus exigency,
essentially what Alexanderrequires today, and our federal
court said, well, the exigencyis sort of the general mobility
of the vehicle, but it's not aper se, it's just in situations

(11:33):
where the mobility of thevehicle would prevent time for
getting a warrant, you cansearch a car on probable cause.
There was some shifts inPennsylvania law, though, prior
to the 90s, where you startseeing, despite the Federal
Constitutional interpretation inthe Supreme Court, focusing on a
different justification for theautomobile exception, not simply

(11:56):
the mobility of a vehicle, butthen in the 70s, you start
talking about privacy interestsin cars, you know, you have a
decision in US Supreme Court inChambers that has not just the
mobility of the vehicle, butsort of the concept of the
general privacy interests atstake, that the intrusion of
seizing the vehicle versus theintrusion of searching it really

(12:16):
aren't all that different, yourprivacy interests really aren't
that high in the car, you know,so the US Supreme Court started
to diverge from this probablecause exigency requirement only
for the mobility issue, reallyin the 70s. And then really did
it in '89 in Carney, Californiav. Carney. The Pennsylvania
Supreme Court has consistentlyin the 80s and 90s, kind of

(12:40):
followed that Carroll doctrine,it did not really change that
idea and consistently looked atall of these concepts about- the
real issue here is the exigencyand the need to get a warrant.
And in I forget what year Whitewas, I think it's 1995.

(13:03):
The Pennsylvania Supreme Courtin Commonwealth v. White says,
"We are looking here now thatdespite the US Supreme Court's
adoption of this sort of broadermulti pronged assessment, that
probable cause alone is going tobe sufficient to search a car
because of the lower expectationof privacy and because of the

(13:23):
mobility of the car,"Pennsylvania started to diverge.
And White was really clear infocusing on Article One, section
eight and saying that no, theCarroll understanding remains
true that you need probablecause plus exigency. And even if
sort of the exigencies of thesituation may cover most

(13:43):
searches, and most individualcase by case assessments will
find an exigency. That doesn'tmean the doctrine doesn't exist.
So if the officers knew what carthey were going to want to
search, and had that car intheir possession, then they had
an obligation to get a warrant,simply the fact that it was an
automobile did not justify asearch under Article One,
section eight, I think White waspretty clear in that effect. And

(14:06):
it became clear later too aftersome other cases in which the US
Supreme Court overturned someFourth Amendment decisions that
the Pennsylvania Supreme Courtupheld on article one section
eight suppression where therewas no clear exigency. And I
think that's Pennsylvania v.
Labron is a good example of thatin 99, I think.

And just to tie that back into the Carroll
rationale-

Sure.

-if you've got a bootlegger at the county line in
1920, and you fast forward thatto the 1990s, we're still not at
a time where there are widelyavailable cell phones, there are
still plenty of places inPennsylvania where finding
another deputy to go and get awarrant or something like that
is still pretty impracticable,or at least could be
impracticable in the moment. SoI mean, it does make a lot of
sense that Carroll kind ofcontinues to apply there, via

(14:53):
White anyway.

Yeah.

So at this point, we've got sort of that that
split between what the sort ofpost-Warren Court in Washington
is saying about the FourthAmendment and what it actually
is meant to protect.

Yeah. And I think you're right, though that like,
you know, and this actually getsback to what I was almost saying
during our intro conversationabout sort of practical
outcomes, and maybe in some waysbeing an element of legal
realism here, which is prior toour current digital age, you
know, the last 10, really thelast 10 years. In most

(15:31):
instances, it was going to beimpractical to get a warrant, as
you were saying, not just in the1920s and 30s, but all the way
through the early 2000s. Youknow, police aren't anticipating
stopping a car, right, they seea traffic violation and then
uncover something for which theyhad probable cause of contraband
in the vehicle. They weren'tanticipating getting a warrant,

(15:51):
they didn't have the ability tocall a easily call a magistrate
or transmit an affidavit ofprobable cause to a magistrate
in any reasonable time. I mean,we didn't have an electronic
transmission of an affidavit ofprobable cause. It's not like
they could sit in their car withtheir computer terminal, write
up a two sentence affidavit andtransfer it to the magistrate at
3am. And hence swear it out overthe phone and the magistrate

(16:13):
says, "yep, signed, done. Hereyou go." Right. That couldn't
have happened until veryrecently. So practically
speaking, you know, even theWhite case, it was very rare,
where courts would find,arguably that there was no, that
there was no exigency to justifythe search. So part of the
reason I think that the law wasstill somewhat left unclear and

(16:35):
undecided was these practicaldifficulties of defendants
really raising solid claims tochallenge the outcome of an
exigency finding or a searchbelow, when police were almost
always going to be granted it bytrial courts. So you really

(16:55):
didn't have this strong divide,purely coming to the forefront
again, until really the 2000swhen when the justices started
to see that there was going tobe a difference in not just the
protections afforded by PA'sconstitution, but really, in how
law enforcement can operate. Andwhat those, you know, policy

(17:17):
results can be, despite thecourt and Alexander ultimately
saying that, you know, policy isnot the end all be all and does
not determine how we makedecisions, even if it does make
law enforcement slightly moredifficult.

Yeah. And so for that period, between, say Labron
and the case we'll talk about ina moment, Gary, really, the
court is spending a lot moretime just dickering on the
particular application ofexigency to individual
circumstances. Right?

Yeah, to some degree, although, I think it
remains confused as to in somecases that remain confused as to
the actual diversion betweenArticle One, section eight, and
the Federal Constitution and theFourth Amendment. So even if
they were applying Article One,section eight prior to Gary, I
think, yeah, the court wasreally, you know, even if they

(18:06):
didn't say it expressly havingto address what is or is not an
exigency and kind of giving alot of- giving a nod- to the
fact that in most instancesexigencies would be found with,
I think, one exception. Youknow, there was, I think,
Hernandez in 2007, found thatthis sort of generic danger to

(18:27):
the police, while a danger tothe police could be an exigency,
the idea that there's this, ageneric public safety, danger
doesn't always justify anexigency. And therefore, if the
police had the defendant incustody, the car was otherwise
in their possession, they knewwhich vehicle they were going to
stop, no exigency is establishedsimply by asserting an a, you
know, a hunch of danger, andtherefore they could search this

(18:51):
Uhaul that had, I think it wasmarijuana in the back of the
car, even though, you know, thecourt at the top, at the time,
was still focusing on ArticleOne, section eight, but really
didn't put a whole lot of effortinto identifying sort of the
reasons Article One, sectioneight diverged and more. So

(19:11):
we're just focusing on the lawhas always been this way in
Pennsylvania. And we're justapplying sort of this standard,
you know, exception to thewarrant requirement, which is
going to be pretty broad inPennsylvania with very limited
areas for defendants to win onsuppression grounds. And that
was like one of those limitedexceptions.

So as that sort of cleavage starts to become
apparent, I guess that's thething that changes, right? And
we end up re-litigating theissue in Commonwealth vs. Gary,
that's 2014 if I'm-

Yes.

-that's 2014. And I guess just very broadly what
happened in that case,

They both basically, both Gary and
Alexander deal with weedbasically the odor of marijuana,
pulling a car over smelling weedand at the time both Gary and
the case we'll talk about,Alexander, you know, dealt with
police saying, Well, when Ismell marijuana under the
precedents of both state andfederal law, right, marijuana is
illegal. I therefore have thisplain smell idea, it gives me

(20:13):
probable cause that there isevidence of, of contraband
marijuana in the car, andtherefore I can search. So if I
recall correctly in in Gary, itwas a, you know, a similar they
pulled over police pulled over acar for tinted windows. And when
they pulled over the car, thecops asked if there's anything

(20:36):
in the car they needed to knowabout. And I think Gary said,
"Yeah, I got some weed in thecar." And at that point, you
know, that's all the cop need toknow about. They searched the
car, found, I believe, a gun ora lot more drugs. I don't
remember what exactly theyfound. But it was it was a bunch
of contraband. And the defendantGary moved to suppress. And one

(20:56):
of the questions, of course,was, you know, what was the
standard by which the officerswere going to be justified in
searching the car? Was itapplying sort of the White
standard, probable cause plusexigency, or did the automobile
exception under federal lawreally, actually apply in
Pennsylvania? And simply thefact that probable cause alone

(21:18):
was in existence? Is that enoughto search the car? And you
really saw in Gary, a majorschism amongst the justices on
the court at the time, you know,with a three justice plurality
and a fourth justice Saylor,arguing in kind of wholehearted
concurrence, but adopting aseparate concurring opinion. So

(21:41):
it was three judges JusticeMcCaffrey, I think announcing
judgment for the court. And youknow, just as an aside, the
attorney for Gary was AlanTauber, who is now our Chief-
Acting Chief Defender, who wasfighting very hard to avoid this
and did an excellent job withthe court convinced obviously,
you know, Justice Todd, that wewere very much correct when she

(22:05):
dissented that the Edmundsanalysis required, you know,
applying Article One, sectioneight is a more broad, more
protective constitutional basis.
But nonetheless, you get threejustices deciding that under
Pennsylvania law, it's actuallycoextensive with the Federal
Constitution, and that theautomobile exception applies,
and they did an Edmunds analysisand found no basis to find a

(22:27):
broader protection and thenJustice Saylor simply concurring
in the result, right, explainingthat he agrees with the
majority, but has some hesitancyabout sort of the general bright
line rules for law enforcementand the aspect of imposing
bright line rules as opposed tomore discretionary legal
determinations. And then JusticeTodd writing a scathing dissent,

(22:48):
saying this is absurd.
Pennsylvania has a long historyof being a broader protective
Commonwealth, article onesection 8, and even doing the
Edmunds analysis leads us to theconclusion that the Carroll
doctrine, the probable causeplus exigency, still
fundamentally applies inPennsylvania, as an adequate and
independent state constitutionalprovision, fourth amendment be

(23:11):
damned, you know, in thatrespect, and that case, then
sort of changed the game inPennsylvania. Police took that
decision to give a, you know,and prosecutors a wholehearted
endorsement of if police possessprobable cause, there's no need
to determine exigency, you canconduct a search on the street.

(23:32):
That's that's kind of in anutshell, I think what happened
in Gary and the conclusion thatwas reached.

Yep. And a couple just quick aspects that I'd kind
of like to drill down upon-

Yeah.

-the lead opinion sort of goes through the
precedent and itself seems toacknowledge that hey, White did
say this. But hey, there was noEdmunds analysis. So, we're sort
of free to write on a blankslate here. One thing that was
shocking to me was the lack ofany meaningful discussion of
stare decisis as it pertains toto White, which kind of will

(24:05):
double back in Alexander, but Ijust I just wonder if you, I'm
sure that you notice that. Don'tyou think that seems a little
curious?

Yeah, I mean, you raise kind of two issues. One,
is that, right, there's thediscussion in Gary about White
not engaging in an Edmundsanalysis. You know, and and it's
criticism of White for notengaging in Edmunds analysis is
also somewhat interesting in thesense that the plurality
opinion- Justice McCafferey'sopinion believed that if the

(24:36):
Supreme Court did not engage ina full Edmunds analysis that
that somehow resulted in theopinion not being sufficiently
precedential to justify aconclusion or a holding. It may
be a point of criticism as towhether the court sufficiently
addressed the question and uponreview, you know, I'm going to

(25:00):
stare decisis as to whether thedecision was sufficiently
addressing the issue but itdoesn't undermine the conclusive
or precedential importance ofthe particular holding, even
though you may be critical ofthe means by which the court got
to that particular outcome. AndI think yeah, the fact that the

(25:20):
plurality in Gary does notaddress stare decisis and say
they discount White for thepurpose that they did not
conduct an Edmunds and for forthose who don't remember know
what the Edmunds analysis is,there's sort of the basic idea
that if Pennsylvania'sconstitution is going to be
broader, the party making theargument for broader protections

(25:41):
has to look at and examine, andthe court for that matter, the,
you know, the text ofPennsylvania's constitutional
provision, the history ofdecisions and things that
interpret that constitutionalprovision, the decisions from
other states regarding whetherto diverge from the Federal
Constitution and the decisionsof sister states. And then
finally, the policy aspects ofwhether there's any Pennsylvania

(26:03):
specific policy that justifiesdiversion from the Federal
Constitutional floor and createhigher protections. And what
Gary doesn't do then is thenthey just discount White without
saying, well, it's discounted,but it's still precedential.
They ignore that second part,which the dissent takes them to
task for a little bit, andreally comes to the forefront in

(26:24):
Alexander that says Gary reallyignored stare decisis in and of
itself. It discounted the prioropinions and tried to alter the
outcomes to some degree orweaken them. But it doesn't
discount the fact that thoseopinions in White and Labron
reached very- and Hernandez, forinstance, reached very clear
precedential conclusions thatthe article one section eight
was indeed, broader and moreprotective. And Gary itself

(26:48):
simply ignored that precedentialvalue. And you know, and that
was a concern to the court, themajority of the court now, in
Alexander.

And I just want to just highlight the two secondary
opinions a little bit. First,Justice Saylor's concurrence,
although it does say he joinedthe holding, it doesn't say a
lot else. And it really justsays, I mean, it's almost an
aside, right? You have somelanguage about, hey, we seem to
be adopting bright line rules.

Yeah so what do you take from that right, like
he takes this bright line? Yeah,he says, Look, I'm I'm kind of
tired of this bright line rulepractice of we like bright line
rules, when they, you know, makelaw enforcement jobs easier, and
we don't like them when it makesthem harder. And I'm tired of
that inconsistency, the end.
Right. That's all he says. Andso, you know, what, do you take

(27:36):
from that concurrence? You know,in the sense of why not join the
lead opinion, and just sign yourname to the lead opinions? You
have four justices in themajority, versus adopting this
concurrence that really saysnothing other than just
expressing sort of an aside andconcurring in the result?

Something of a Cheshire Cat opinion. And-

Yeah.

I can't imagine being in Justice McCaffrey's
chambers, and just picking thatconcurring opinion up and
thinking, Oh, gee, what doesthis mean for all this work
we've just done? But so and I'dlike to just highlight the
dissent, which apart from doingsome really good historical
work, which may have been partlydone by Attorney Tauber's brief,

(28:19):
really drilled down on twoissues that you had talked about
earlier. Number one, theincreased practicality of
getting a warrant, as comparedto boss hog on the county line
in 1920. Right? Suddenly, wehave cell phones, we have the
internet, we have much moreadvanced communication services.
And then something which Ithought was particularly

(28:41):
insightful, the expectations ofprivacy in a vehicle seem to be
increased, as compared to 1976when Justice Powell decides that
we don't have as much to lose inan automobile, in an automobile.

Yeah, I mean, I think that's interesting. It's,
it's, you know, a goodobservation, because I think the
first one is, is more obvious,right? We kind of know that the
technological change and theability to get a warrant is
different now than where it was,you know, even 10 years ago, let
alone as your Boss Hogg example.
But the, you know, I think thesecond point you raise is just

(29:16):
much is more interesting to meabout sort of questioning the US
Supreme Court's sort-ofrationale about lower
expectations of privacy invehicles. Generally speaking,
people, while while we may havesomewhat of a belief that things
we leave on the seat of ourcars, for instance, may not be

(29:38):
as secure or private as thingswe have in our house. But
nobody, nobody really believesthat things left secreted in
your car or hidden in your car,are things that you have any
less of an interest in thanthings in your house. Right? I
mean, cars in the 20s, 30s, and40s were not particularly secure

(29:58):
institutions. But today, youreally have people cherish their
vehicles, and people use themfor all sorts of very intimate
things. Right? Especially, youknow, if you're talking about a
motorhome or a van, I mean,people have sex in their cars,
it's not uncommon, right?

(30:21):
There's a lot of, and people cantake pretty solid means of
securing the outside of theirvehicle from observation and
view and can be parked legally.
And these sorts of things, youknow, are not generally going to
be prohibited, you know, it'sthat people have these
experiences, and people believethat they have a lot of interest
in their cars. So to say thatyou no longer have a privacy

(30:44):
expectation in your vehicle or asubstantially reduced such that
law enforcement can just jumpsort of jump the gun and make
sort of the independentdetermination of whether they
have probable cause or not,without putting them to the task
of an independent arbiter, Ithink really does undermine how
Americans, you know, sort ofcherish their their possessions

(31:05):
and their cars, especially inyou know, the 20th, the 21st
centuries, people do believe allsorts of things in and around
their vehicles. And I think tominimize that is, is concerning.
And I think that Todd reallypicks up on that in a way that
we haven't heard a lot come fromfrom courts recently.

And aside from noting that there's plenty of
examples of spaces and- thetrunk has a lock, there are the
glove boxes that have- sherefers to special keys- that
open a glove box-

Right. Right.

One thing I thought was really interesting
was she sort of dug up a pollthat had been administered
about, hey, general population,do you think that police should
be able to, you know, searchyour vehicle based just on
probable cause, you know, thesmell of marijuana or something?
And I think it was a whoppingalmost 60% of people said, Well,

(32:00):
you know, heck, no, we don't, wedon't want that.

Yeah.

You know, I don't think that I've ever seen
anything like that in anappellate court opinion before
and probably because, you know,the court would like to be the
one to decide what's reasonable,rather than to let Gallop do it.
But I thought it was a reallyinteresting way of checking them
for the underlying assumptionthat hey, car, you might as well
be wandering on the road orsomething.

Right. And I that's not I think that's
totally right. But I'm trying toremember. And it's striking me
that I think Pennsylvania,Supreme Court in Pennsylvania,
you know, had found sort of thatPA's constitution is more
broadly protective, of sort ofintrusions into garbage than is
the Federal Constitution, if I'mremembering correctly. And I

(32:44):
recall that if you asked in theSupreme Court, the US Supreme
Court was not moved by that ideathat sort of the public wouldn't
like it, right sort of concept.
Like, if you asked any person onthe street, if they thought it
was fair, that the police couldjust come up to their trash and
dig through it for any sort ofpiece of tidbit of information
of their lives. They'd be like,That's absurd. You're gonna dig
through my trash and puttogether a puzzle of my life

(33:05):
that seems wrong based on nosuspicion at all. And
Pennsylvania's like, No, youknow, people still people
wouldn't like it. Right? There'sthis idea of what is within sort
of the public mindset that mightinfluence sort of the privacy
interests and expectationssomewhat different than the
federal courts have adopted. AndI feel like there's a- inherent

(33:26):
in sort of the idea thatPennsylvania's Constitution
protects privacy, like it's apersonal right, not about, you
know, this pure deterrenceconcept. I think there's
something innate about thinking,what would the public want? And
what would they believe, as faras their reasonable expectations
and how those play out in areasthat might diverge federally and

(33:48):
state and I think she did a goodjob in Gary's dissent, really
running through some of thosethings. I mean, in addition to
all of this stuff, she I thinkshe talks about, like, the data
privacy that now cars contain,that could be, you know, like
the black box and other thingsthat the vehicle kind of
monitors your location and can,you know, sense who's whether

(34:08):
somebody's sitting in the seatand keeps all of that record,
you know, who's in what, whethersomebody is in the passenger
seat or driver's seat, all thatsort of sensitive information.

Yep. So Gary's in 2014. And that year and years
hence, we get a very, verydifferent Court.

To say the least.

There are justices that retire there are justices
that perhaps little moreforcibly retire and they're
replaced by Justices Donohue,Dougherty, Wecht, and Mundy. So
we've got basically a newcontingent of four justices,
which is to say, potentially abrand new court. So we talked a
little bit about the facts ofAlexander and it's basically the

(34:50):
same kind of case. An officergets probable cause based on
marijuana, and then does thesearch, obviously relying on
Gary in this instance. So howdid your office decide, "Hey,
maybe it's time to take a run atoverruling Gary,"?

Well, I mean, frankly, we wanted to take a run
at overruling Gary from themoment it came out, you know,
and we thought there was goodarguments to do that. Because
early on even immediately afterwe saw that it was a it wasn't a
four justice majority opinion.
So there was still room.
However, obviously, we recognizethat the court at the time, you

(35:24):
know, in 2014, wasn't going tochange immediately. But pretty
shortly after we see a differentcourt, and as soon as we saw a
different court where all threeof the majority justices were no
longer on the court. Right, wesaw that. Well, you know, this
is a perfect opportunity to takea run at Gary. So early on, we

(35:47):
started looking for cases thathad a similar issue that was
going to raise a probable causeand officers searched, and we
were telling our trial attorneysto preserve them, which is
exactly what we did. In thiscase, you know, and I will throw
out that one of the the attorneywho primarily worked on the
case, Len Sazonov, from ouroffice, and he was lead counsel

(36:09):
on the Alexander case, he waspushing this from the beginning,
and I was more on the sidelinesat the time, but our office was
fully on board. I was not yetChief of Appeals, I was still
just an appellate attorney inthe unit. And so we really
thought this is a greatopportunity. We told all of our
attorneys to pursue it. And thefirst case that came about was
Alexander. And, you know, LenSazonov really then just kind of

(36:32):
ran with it and pursued itpreserving the the issue
sufficiently by saying, look,you know, we're simply trying to
overrule Gary, we don't need tosay much more than that. Here is
our grounds. And we'll go fromthere. And so the whole thing
was strategic going up, becausewe were hoping that a changing
court would would give us apotential different outcome. You
know, when we have thedissenting justices remaining

(36:54):
and brand brand new justices orthree brand new justices to to
try to persuade to rule theother way.

If you bat 500, you're getting a win.

Yeah, that's right. Exactly!

So okay, so what obviously you don't just say,
hey, Justices, as you know, youruled this way before. There's
new justices now. How do youapproach the issue of stare
decisis. And how do you thinkthat played out with the court?

Yeah. So I mean, I think I think Justice Donohue's
opinion kind of reiterates inmany ways, some of the things
that were stated in Sazonov'sbrief, our brief, to the Court.
You know, and similar with theamicus brief, really focusing on
kind of two main areas, one sortof reaffirming the Edmunds

(37:39):
analysis of Todd's dissent, buttoo kind of focusing- two
separate things. One is youmentioned the stare decisis
quality of both Gary, andfrankly, the opinions before
Gary, you know, you're talkingWhite, Hernandez, Labron and
these sorts of cases thatestablish in a broader Article

(38:00):
One, Section 8, with majorityopinions. And then, you know,
looking at sort of the, the ideathat the justifications that,
you know, the majority in Garylooked at, and obviously some of
the justices would be thinkingabout as to the reasons for the
automobile exception reallydon't jive or aren't justified

(38:20):
in a way that the the court, theUS Supreme Court seemed to
recognize for the vehicleexception, like, for instance,
the intrusion of holding a carto get a warrant versus the
search immediately are actuallyidentical, right, knocking down
that privacy aspect is somethingthat we wanted to challenge or

(38:41):
that sort of inherent,supposedly parallel, that they
are equally intrusive, is- wethink was flawed and wanted to
focus on that in addition to thestare decisis question, and I
can go into some of the reasonswe talked about stare decisis as
to why that was, I think soimportant to brief for the court
and how it affected the outcome.

Yeah, you know, because I think, obviously, if
you're you're sitting in youroffice, and you know, you can
almost anticipate what thedissents are going to say it's
going to be you know, the ink isnot dry on on Gary.

Right.

And we've we've had a sea change in justices, so
you know, what gives guys? Andthat's kind of what comes out to
some degree or another in thedissents here.

Yeah.

But yeah, if you could just sort of talk about
how the stare decisis issuereally helps to form the the
court's- maybe form themajority.

Yeah, so one, there's like the US Supreme
Court and actually, recently,right, we've been talking a lot
about stare decisis in the USSupreme Court, you know, with
when it's appropriate overrule adecision and when it's not, and
there's a number of differentconsiderations at issue, you
know, sort of the theworkability of a rule, the long
term adherence to sustainabilityof a particular legal rule,

(39:52):
these sorts of things. But also,you know, when when
constitutional questions are atstake, there's really ultimately
decision about, you know, staredecisis, especially when it's a
very recent opinion. Sometimesyou don't simply pursue
enforcement of a larger decisionthat may clearly be wrong simply

(40:13):
for the sake of, you know,consistency. If it's very clear
that that decision wasincorrect, but more, I think, to
a sort of process point for thesanctity of precedent and law,
you know, really one of the bigtactics was looking at the fact

(40:34):
that Gary itself was notfaithful to stare decisis.
Right? And I think that's, thatis kind of key to pointing out
to the court, which, you know,Justice Donohue kind of picked
up on and talked about that,which is, you know, that Gary,
tried to undermine these priorcases on some of their

(40:55):
reasoning, but didn't even cometo grips or grapple with the
fact that, you know, overrulingtwo decades of precedent was
really what they were doing inGary, without giving sort of the
even even a, you know, aprincipled nod to the rule of
stare decisis in Pennsylvania,which raised some serious
questions as to the, you know, Iguess, methodological or legal

(41:19):
validity of that of thatdecision, which I think played a
role in saying, look, Garyoverruled these cases, but
didn't even address what was thereal line of precedent in
Pennsylvania, and Alexander kindof came back to this decision
overruling Gary is actually muchmore in line with Pennsylvania
precedent, and being faithful tothe idea of precedent and

(41:41):
decision making in the statethan Gary was. And two, Gary
wasn't a precedential opinion.
That's the argument, right,Justice Saylor kind of disagrees
with that. But I think it's hardto quibble with the fact that
Saylor very clearly does notactually sign his name to the
majority. And he addresses it inthe concurrence, giving the

(42:01):
opinion announcing a judgmentfor the court, as opposed to
simply an opinion, the majorityopinion which, you know, Saylor
had the ability to do so if heif he thought that it was worth
solidifying that sort ofrejection of prior Pennsylvania
law, but he didn't, for whateverreasons, and I still come back
to that being a very interestingquestion as to what was his

(42:23):
mindset at the time for notjoining the opinion and where
those differences lie. But, youknow, regardless, I think,
focusing on, which we did, onthat sort of question about what
is truly the most consistentadherence to Pennsylvania
precedent, the ruling that weasked for in Alexander, which we

(42:45):
ultimately got, or what Garydid, and therefore adhering to
that, and ultimately theconclusion fell down on no
adhering to sort of a muchlonger line of Pennsylvania
precedent is more consistentwith a stare decisis practice,
than adhering to Gary simplybecause of its recency bias.

Yeah. And I think that's an excellent point,
right? Because I think someonecould definitely read Alexander
in isolation and say, oh,they're responding to judicial
activism with judicial activism.
But I think your point thatwell, what we're really trying
to do is, you know, when youhave judicial activism, like you
had in in Gary, well, how doyou? How do you correct that if

(43:29):
you if you do, and I think, toyour point, the endeavor is now
Well, well, what sort ofholistically fits and what's an
outlier? Right.

Yeah, I mean, I think that's I think that's
exactly right. And I thinkthat's important to think about
in in sort of law. Moregenerally, when you're
interpreting decisions like it'sgoing to be, it's always going
to be a task to sort ofinterpret, you know, a line of
precedent in Pennsylvania,especially when there's some
lack of clarity and trying tosee a general through line

(44:03):
there. And you're always goingto want to look at that and say,
what's the direction in whichPennsylvania law traveled? And
what's sort of the overarchingprinciples that have been
established by various holdings?
And are those precedential? Andif you have something that
diverges from that, even fromthe Supreme Court, I think
there's going to be a realquestion of did that decision,
actually, was that decisionactually faithful to the concept

(44:24):
of stare decisis, did it examinethe reasons and and sort of
elaborate on those as to why itwas rejecting that line of
precedent, and saying it's worthrejecting that precedent? And
for all these reasons,consistent with sort of the
factors our courts employ instare decisis questions, versus

(44:45):
simply saying, you know, wethink the policy is sufficiently
changed, we've reached thisindependent conclusion. Those
other cases are eitherdistinguished or overruled,
without really giving much, muchweight to them, I think is, you
know, there some level ofdisingenuousness to some of
those rulings. Now, of course,right, you could have long lines

(45:07):
of precedent that may be erodedby the, you know, essentially
progress of time, you know, thelong march of progress might
erode a long line of precedents,I mean, separate but equal at
almost 100 years of precedent,right? So like, you have this
this concept that isfundamentally overruled by the
progress of time. And but Ithink the to grapple with that

(45:30):
is to say, you know, is toreally have to be clear about
what you are doing with respectto finally overturning what is
inherently a wrong result, asopposed to trying to sort of
puzzle your way out, or what Ithink the Gary majority did,

(45:51):
which is simply tried tominimize the value of the
reasoning in those prioropinions, as opposed to saying,
either they're simply wrongbecause of some overarching
clear policy concern, which isfundamentally important, or are
not, you know, didn't actuallydecide the question at all. And

(46:11):
this is a brand new question.
And I think neither of thosewere present in Gary. So I think
there was a little bit ofignoring that what needs to
happen before you start goinginto thinking about overruling
cases. And I think Alexanderspent a lot more time being
faithful to that line of thoselines of concern. That said, you

(46:34):
know, it's always going to behard to decide what cases are
worthy of overruling and whataren't? And it's going to be a
tough principle to grapple withwhen you think a decision is
fundamentally wrong. But also,you know, to adhere to sort of
the basic ideas of staredecisis, you were seeing that a
lot with Ramos and then I'mforgetting the case that didn't
hold Ramos retro- oh, Venoy.

Right.

The new recent decision in Venoy, which, you
know, dealt with the idea ofprecedent and retroactivity,
and, you know, weirdly, thethrowaway line sort of overruled
an aspect of TV lane, you know,is, you know, a 40 years of
precedent talk that courts haveroutinely sort of described as a

(47:19):
clear rule and, you know, in oneor two lines sort of eliminated
it and kicked it back to thedustbin of history. And so
there's, there's lots of fightsright now on on what it means to
adhere to stare decisis. AndI'm, I'm fascinated by it. And
I'm no stare decisis scholar atall, and there are many people
much smarter than me, who havethought much in much more

(47:40):
detail, you know, I'm sure I'msure Will Baude has a has a lot
to say about that.

So let me just back up. The essential reasoning
of the court on the substanceis, "Well, hey, you know,
Justice Todd was right," and Ibelieve they actually
incorporate her dissent by byreference before, you know,
offering a little morecommentary. But I guess the the
crux of it is that we are backto the pre-Gary rule under White
and those cases, which is to saythat the Carroll rule. So what

(48:10):
are the implications ofAlexander? I know, personally,
it's led to a lot of dismissalsin the short term where police
thought they could rely on Gary.
But hey, that's not happeningnow. But what does it mean for I
guess, Article One, sectioneight broadly and privacy rights
broadly? And then in the area ofautomobile searches
specifically?

Yeah, I mean, I think I think the implications
of it are going to be probably-are big right now, with respect
to privacy rights, generally inPennsylvania. I don't know if it
has much more sweepingapplication, than the sort of
the general trend of thePennsylvania Supreme Court over

(48:49):
the last, you know, 30 yearsanyway, which is really sort of
looking at the independentprivacy right as sufficiently
broader, you know, andsignificantly broader than the
Fourth Amendment. And it's justgoing to be a question of, to
what things that gets appliedthat haven't been applied
before. I mean, we already knowlike, the particularity
requirement of the FourthAmendment is broader in

(49:10):
Pennsylvania. And that's atissue in cases in front of the
Supreme Court right now, notsimply about whether it is we
know it is it's about how itgets applied in a more broader
capacity. And so I don't thinkthere's really anything that's
unique about Alexander in thenature of expanding privacy
protections generally, because Ithink we're going to continue to

(49:32):
see the court apply thoseprotections in various Fourth
Amendment areas, and search andseizure areas in ways that we're
not currently anticipating. Butwe'll we'll continue to sort of
follow that general rubric. Asfar as more specifically for the
implications. I think that'swhere you're going to see a lot,

(49:53):
a lot bigger sort of changes anda lot of litigation that I think
will result from the Alexanderdecision. And the changes are
really two things, right? One, Ithink you're going to see,
obviously, a lot fewer carsearches, the police are going
to search vehicles much less.
And I think that's not justbecause of the law that's put

(50:14):
into place because like,technically speaking, if the
officers had probable cause ineach of these instances and
warrants were otherwise could beavailable, like officers will
pursue them. But what I thinkAlexander is ultimately about,
at least in practice, right, isthe idea between who, and this
applies in a bunch of areas, whogets to decide when probable

(50:35):
cause exists, do we give thediscretion to the police to make
the decision? Or is it the sortof independent magistrate or
arbiter who is quote, "not inthe Competitive Enterprise of
ferreting out crime"? Right, theconcept of thinking like, who
makes better decisions, the copwho wants to search the car or

(50:56):
the the magistrate? And where Ithink the big shift comes in
with Alexander's, we're puttingthe onus back on the magistrate
instead of the cop, because Ithink, statistics and anyone who
practices law, right, andfrankly, anybody who's ever
experienced a car stop will kindof know this intrinsically, is

(51:18):
that the quality of a policeofficer's probable cause
determination is likely going to

be affected by (51:27):
One, their job; Two, who the person is sitting
in the driver's seat orpassenger seat? Are they a kid?
Are they an adult? Are theyblack? Or the white? Are they
Hispanic? Are they a man orwoman? Right? Those things are
going to affect the quality ofthat officer's decision making
either explicitly, you know,intentional racism, sexism, or

(51:48):
just saying or implicitly,right, there's racial biases to
think that something might looksuspicious that a black person
does that a white personwouldn't. Right? Those things
are, I think, inherent in theidea of human decision making.
And the officer obviously wantsto conduct the search, because
why not? Right, maybe they havea hunch, there's stuff in the

(52:09):
car, and it's a lot easier tojust say screw it, I'm going to
search the car. So if I findsomething, I can justify it
later and say, you know, furtivemovements in the hand under the
car seat, or I saw, you know,something sticking out from the
passenger seat, etc. And thosethings are hard to prove
otherwise, that they did ordidn't exist, whereas the
magistrate you have to alreadyput all those facts in and the

(52:30):
magistrate's not connected forthe same purpose, and they're
gonna have a easier timedetermining whether this is real
or not. And you're going to makethe cop say, am I going to go
through the efforts? Because ismy probable cause actually
really good? And do I think I'mgoing to find something really
criminal? Or is it really awaste of time, because I'm on a
fishing expedition. So I thinkthis really does change the

(52:51):
officer's incentives to decidewhether probable cause exists
and forces them to have a betterquality of probable cause. And I
think that's what we're going tochange, at least on the
practical side, that officersare going to be much more
hesitant to think about whetherprobable cause exists, and
they're going to be much morescrutinizing about the details.

(53:11):
The second aspect legal is thewhole debate about well, what
the hell is an exigency now?
Right? Like, that's going to bethe hard part. That's going to
be the real question that Ithink is going to dictate much
of the litigation moving forwardfor the next couple years, is,
it's late at night. It's a smallcounty, the magistrate's 100
miles away, you know, whateverit is, right. They might be
asleep, I'm gonna have troublereaching them. I'm a solo

(53:33):
officer, I there's only like twoother cops around I can't be
delayed for hours waiting forthe warrant to come back. I'm
just going to search the car isthat an exigency? Is the danger
on pulling somebody over theside of the highway and sitting
there for two hours is thedanger potential injury from a
car on the side of the turnpikeor highway? Is that going to be
sufficient to justify exigency?

(53:54):
Will the timeframes be dependentupon exactly where the location
of the car is, is the carlawfully parked/not lawfully
parked, these questions aregoing to be litigated ad nauseum
in our trial courts, I think, todetermine how hard or how not
hard It might be to obtain awarrant and what the timeframes
are because there's not thisisn't a bright line rule. Right,

(54:15):
as the court clearly said, thisis going to be case by case. So
it's going to be a lot oflitigation. And I think one of
the biggest values of this isnot so much the litigation going
forward but the officers makingthose initial practical
judgments of quote is for areally thinking like in the
officer said, quote, "is itworth my time?" Right?

Yeah. Well, that's just an excellent summary of
where this is going. And I gottatell you that ferreting out
crime quote is one of my top 10in the history of court, so-

Absolutely!

Aaron, thank you so much for joining us today on
The Standard of Review.

Yeah, it was a pleasure to be here. This was a
lot of fun.

That's all for this episode of The Standard of
Review. If you'd like whatyou've heard and you want to
hear more, you can subscribe fornew episodes in your pod catcher
of choice. If you'd like toreach out with a topic or a
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Thanks so much for listening,and we'll see you next time on

(55:13):
The Standard of Review.

Outro (55:16):
Thanks for listening to The Standard of Review by
SCOPAblog. This episode has beenbrought to you by Woods Law
Offices, Raising the Bar forPennsylvania Appeals. Check them
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