PA Supreme Court eliminates 238 years of individual privacy

In 1776, Benjamin Franklin, George Bryan, James Cannon, and others wrote the first constitution for the new state of Pennsylvania. This new doctrine included the much-admired Declaration of Rights outlining the many inalienable natural rights of citizens of the commonwealth. Among them was Declaration Ten, which states:

That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.

Those words are the basis for the right to privacy in all five incarnations of the Pennsylvania State Constitution, as well as serving as the foundation for the United States Bill of Rights’ Fourth Amendment.

On May 5, 2014, the PA Supreme Court took a huge step towards completely eliminating 238 years of the constitutionally protected right to privacy, ruling in a 4–2 decision that police may now search your vehicle without a warrant. Chief Justice Ronald D. Castille and Justices J. Michael Eakin, Seamus P. McCaffery, and Thomas G. Saylor ruled in the majority, while Justices Debra McCloskey Todd and Max Baer dissented.

The ruling addresses an appeal resulting from a 2010 traffic stop of Shiem Gary by two Philadelphia police officers.

Gary was stopped by police because they deemed the window tint on his SUV too dark, and thus in violation of Pennsylvania’s Motor Vehicle Code. During the stop, the officers noted that they smelled marijuana, and claimed that Gary admitted to being in possession of it. After a drug canine and warrantless search, the officers found two pounds of marijuana under the hood of his vehicle.

The appeal by the Commonwealth of Pennsylvania came after the Superior Court ruled in Gary’s favor, namely, that the officers’ warrantless search was a violation of his constitutionally protected rights, as defined in Article I, Section 8, of the PA State Constitution. The Supreme Court disagreed, however, overturning the lower court decision and ruling that citizens have no expectation of privacy in their vehicle.

In the majority opinion, Justice McCaffery exclaimed:

After consideration of relevant federal and state law, we now hold that with respect to a warrantless search of a motor vehicle that is supported by probable cause, Article I, Section 8 of the Pennsylvania Constitution affords no greater protection than the Fourth Amendment to the United States Constitution. Accordingly, we adopt the federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of a motor vehicle.

Additionally, as the meaning of privacy is redefined by the United States federal government and the United States Supreme Court, so too may the meaning of what rights you have within the state of Pennsylvania. McCaffery continued:

One exception to the warrant requirement, the precise parameters of which have evolved over time based on decisional law from the U.S. Supreme Court and from this Court, concerns searches and seizures of automobiles.

Justice McCaffery’s assertion follows that as the federal government moves to strip your right to privacy, the PA Supreme Court may very well move the bar of liberty away from the individual. This includes your cell phone, tablets, email accounts, credit card and banking accounts, grocery shoppers club card, gym membership, and anything else not physically bolted down in your house. At that point, the government need only declare you a “domestic terrorist” for political dissent (say, wanting to end the War on Drugs, or the War on Tinted Windows – or being a journalist) before drone-bombing your lovely abode; a real 1984 party courtesy of our justices, who, by the way, are encumbered by many credible accusations of corruption, nepotism, and outright unprofessionalism.

What are the governing factors that guide a police office in determining “probable cause”? There aren’t any. An officer can assert any excuse for probably case, with little consequences of violating your privacy. Perhaps he smelled something, but there are typically no quantitative measurements to support that claim. Police dogs, more often than not, can provides “hits” based on cues from an officer, even if the dog didn’t actually detect anything. Maybe you’re acting suspicious, but perhaps you’re just socially awkward. Should your rights be violated because your social uneasiness is misinterpreted as criminal activity?

The redefinition of the federal and state constitutions exists within both major parties. Republicans often rail against so-called liberal activist judges, but conservative judges are just as subversive in granting more power to the state, says Andy Ostrowski, a 2014 Democratic US Congressional candidate for Pennsylvania’s Eleventh District. “Under the banner of conservatism, at both the state and federal levels, these judges are taking activist approaches to expanding the power of the government and its agents at the expense of the liberty of the individual.”

Justice Todd wrote the dissenting opinion:

I respectfully dissent. Pennsylvania has long been at the constitutional forefront in recognizing the vital necessity of prior judicial approval of searches conducted by governmental officials, obtained through the warrant process, in order to maintain the fundamental right of the people to security from unreasonable searches and seizures. Consistent with that tradition, our Court has, heretofore, regarded warrantless searches of automobiles illegal under Article I, Section 8 of our Commonwealth’s Constitution — except in those limited situations where both probable cause exists for such a search, and exigent circumstances, beyond the inherently mobile nature of the automobile itself, preclude obtaining a search warrant from a neutral magistrate. Pursuant to Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), a case which emphasized the paramount importance of Article I, Section 8 in safeguarding the fundamental human right to privacy enjoyed by the people of this Commonwealth, the plurality opinion in this matter incongruously now interprets that provision in a manner which severely diminishes its protections of the important personal privacy rights which owners and occupants of automobiles possess therein. The requirement that the ultimate decision-making authority for commencing an automobile search — a disruptive and invasive ordeal for those individuals whose vehicles are subjected to the search process — be vested in a neutral magistrate, and not the officer who will conduct the search, except in those instances where exigent circumstances make the obtaining of a warrant impracticable, is critical to ensure that the protections afforded by Article I, Section 8 to all owners and occupants of automobiles not be forsaken. However, our Court has now eliminated the time-honored and time-tested protection of our citizenry afforded by the interposition of the judgment of a neutral magistrate, through its wholesale adoption of the United States Supreme Court’s “automobile exception” to the warrant requirement of the Fourth Amendment of the federal Constitution, which allows a search of an automobile based solely on the searching officer’s determination that probable cause exists for such a search.

Moreover, our Court has chosen to eliminate this critical protection despite the undeniable fact that our society has undergone a sweeping technological revolution over the many years which have elapsed since the time of the federal decisions on which the plurality opinion relies, seriously undermining the viability of their use as governing constitutional norms for vehicle searches in our modern society.

 

Know your Supreme Court Justices

Ronald D CastilleChief Justice Ronald D. Castille, according to JudgePedia.org:

Expenses Controversy:  In November 2010, The Philadelphia Inquirer revealed an extensive record of Castille taking gifts from friends, litigants and lobbyists. He took expenses-paid trips to the exclusive Pennsylvania Society weekend held each December at the Waldorf Astoria in New York City, golf outings and a judicial conference in Puerto Rico.

State law requires jurists to report gifts over $250 and Castille did, though he may have under-reported their actual values.

In December 2009, The Inquirer ran a multi-part expose on the backlogs, administrative errors, and other malfeasance within the Philadelphia court system. This forced Justice Castille to call for a major review and revamping of the city’s justice system.

Several justices on the court and Castille have management oversight responsibilities for all levels of the state’s court system. Justice Castille oversees Philadelphia, so he hired Washington attorney Bill Chadwick to review the system.

Later, Castille hired Chadwick to look into $12 million in legal and development costs for Philadelphia’s proposed new Family Court Building. The chief justice admitted he did not do a good job of managing the project, which he promoted for several years. The new court offices are expected to cost taxpayers $200 million when they are built.

League of Women Voters lawsuit: In a statement, Chief Justice Ronald Castille wrote that the League of Women Voters suit “slanders the entire Supreme Court of Pennsylvania with baseless and irresponsible charges.” The lawsuit claims that one or more of the state Supreme Court justices used the League of Women Voters’ 2005 legal challenge of the state slots law as leverage for the legislative and judicial pay raise of 2005. “The filing parties may have subjected themselves to sanctions, and the attorney may have subjected himself to disciplinary action,” he wrote. Former Chief Justice Ralph Cappy is the only defendant named in the suit, which cites information from unnamed lawmakers. The league’s lawsuit claims that prior to a decision on the slot machine case, Cappy entered into secret talks with lawmakers to secure a pay raise for state judges. The suit states Cappy acted with the knowledge of Governor Ed Rendell. Chuck Ardo, Rendell’s spokesman, dismissed the allegations in the lawsuit. Cappy, who resigned in January, denied the allegations in a statement issued Tuesday. “I do not understand why a respected organization such as the League of Women Voters would associate itself with this irresponsible lawsuit,” he wrote.

J Michael EakinJ. Michael Eakin, according to JudgePedia.org:

Eakin is known in legal circles for writing opinions in an unorthodox way. He enjoys writing his opinions in poetic verse.

 

Justice Eakin must find it boring that his decisions affect people’s lives. A real class act.

 

Seamus  P McCafferySeamus P. McCaffery, according to JudgePedia.org:

It was announced in June 2013 that the FBI is investigating McCaffery and his involvement in referral fees his wife, Lise Rapaport — an aide in McCaffery’s chambers — received from law firms specializing in personal injury cases. According to public information, McCaffery’s wife received 19 payments in total over a 16-year period, including “an $821,000 referral fee in 2012 after a Philadelphia law firm successfully settled a multimillion-dollar medical-malpractice case.” Referral fees of this nature are legal in Pennsylvania and those paying the fees to McCaffery’s wife say they were “routine and proper.” Pennsylvania Supreme Court Chief Justice Ronald Castille, however, said “he was troubled that a court aide would be collecting fees while employed in a judicial chamber” and questions whether McCaffery has violated the Ethics Act, perhaps even giving Rapaport permission for her actions.

Chief Justice Castille said further:

“Obviously, Lise Rapaport was working these cases out of Seamus’ office, and whenever she received a referral fee, it’s marital property. That would appear to be just — given those facts — a violation of the Ethics Act.”

McCaffery and Rapaport have filed a summons demonstrating their intent to sue The Philadelphia Inquirer for libel and slander over their coverage of the investigation.

 

Thomas G SaylorThomas G. Saylor, according to JudgePedia.org:

The Pennsylvania Supreme Court upheld the state’s practice of stopping motorists at highway checkpoints, despite evidence that less-intrusive practical alternatives exist. Justice Saylor wrote for the majority that “the Court has found that suspicionless stops at such roadblocks are constitutionally reasonable.” Refusing to consider the constitutional issue, the opinion stated, “The judiciary is in poor position to make judgments concerning the most effective among multiple reasonable police alternatives.”

 

Download PDFs of the opinions here:

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Download Dissenting Opinion