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Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee v. Calvin HENDERSON, Appellant.

Decided: April 25, 2012

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Frankie C. Walker, II, for Calvin Henderson. Leonard Sosnov, David Rudovsky, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for ACLU and ACLU of Pennsylvania. David R. Crowley, for Pennsylvania Association of Criminal Defense Lawyers. Michael Wayne Streily, Francesco Lino Nepa, Allegheny County District Attorney's Office, for Commonwealth.


In this appeal arising in the suppression context, we consider Pennsylvania's unique variant of the independent source rule, deriving from Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993).

Law enforcement officers suspected that Appellant may have co-perpetrated a violent rape-kidnapping. They sought samples of his DNA for comparison with material obtained from the victim and a vehicle used in the commission of the crimes. Detective Johnson, a member of a police sexual assault unit, prepared an affidavit in support of probable cause; secured a magistrate's approval of a search warrant;1 and collected samples of Appellant's blood, hair, and saliva. The ensuing DNA analysis implicated Appellant, and he was charged with kidnapping, rape, and other offenses.

Appellant lodged a pretrial motion to suppress on the ground that the detective's affidavit was insufficient to establish probable cause. See generally Kohl, 532 Pa. at 166, 615 A.2d at 315 (“Generally, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause.”). Accordingly, Appellant contended, the seizures from his body violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.2

The motion apparently raised concerns on the prosecution's part, as a decision was made to secure a second warrant. The strategy was to invoke the independent source doctrine as applied under Pennsylvania's Article I, Section 8 jurisprudence, deriving from Mason. Under this rule, evidence tainted by illegal police conduct (such as an unlawful seizure) nevertheless may be admitted into evidence if the evidence can be fairly regarded as having an origin independent of the unlawful conduct. See Mason, 535 Pa. at 565–68, 637 A.2d at 254–55; see also Commonwealth v. Melilli, 521 Pa. 405, 420, 555 A.2d 1254, 1262 (1989) (“If the prosecution can demonstrate that the [challenged] evidence was procured from an independent origin—a means other than the tainted sources—the evidence will be admissible.”).3 Pursuant to the doctrine as it subsequently evolved in Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996), the independent source is to be “truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered. ” Id. at 334, 676 A.2d at 231 (quoting Mason, 535 Pa. at 573, 637 A.2d at 257–58 (Cappy, J., concurring)) (emphasis in original).4

Another member of the police sexual assault unit, Detective Evans, was tasked with undertaking a probable-cause investigation to support a second search warrant. Detective Evans spoke with Detective Johnson, reviewed the existing case file and the victim's medical records, conducted an inquiry into Appellant's background, and interviewed one collateral witness. He then applied for and secured a second warrant, which was used to seize an additional sample of blood from Appellant.

In response, Appellant filed a second suppression motion. In it, he asserted that the evidence secured under the second warrant was not the product of an independent source. According to the motion, the “vast majority” of the information contained in Detective Evans' affidavit derived from the information previously gathered by Detective Johnson. Appellant further highlighted that Detective Evans was commissioned in direct response to the defense's first suppression motion. For these reasons, Appellant contended that the evidence “remains tainted by the original illegally seized evidence.”

Detective Evans testified at the hearing on the suppression motions. In the brief direct examination, he indicated that, although he had been a member of the sex assault squad, he did not participate in the original investigation of Appellant's crimes. He explained that he had been tasked with securing a search warrant in March 2006, and, in preparation, he reviewed the reports in the case file, including medical records and crime laboratory reports;5 conducted an inquiry into Appellant's criminal record; and spoke with a collateral witness. See N.T., May 22, 2006, at 53–55. Further, the detective attested that he did not rely on the warrant obtained by Detective Johnson. See id. at 56.

On cross-examination, Detective Evans confirmed that he had reviewed the materials assembled by Detective Johnson and had spoken with him. See id. at 58–60, 64–65. He also acknowledged that he had reviewed the first warrant and affidavit of probable cause, see id. at 57, 61, but he again denied having relied upon the first warrant. See id. at 57. The detective conceded that he did not interview the victim, the main eyewitness, or several other witnesses, see id. at 63–64, and that the first nine paragraphs of his affidavit “came from” Detective Johnson's investigation. Id. at 60.6 Although he did not agree that his efforts represented a mere expansion on Detective Johnson's work, see id. at 63, Detective Evans did say that many aspects of his affidavit derived “[f]rom the people that had done the investigation before” him. Id. at 67. Further, the detective confirmed that he at least knew that a motion to suppress was “on the way” at the time he received the assignment to perform a probable-cause investigation. Id. at 58.7

The suppression court denied Appellant's motions. In relevant part, it ruled that, while Detective Johnson's affidavit was insufficient to support a probable-cause determination, Detective Evans' was adequate and unconnected with the first investigation. According to the court, Detective Evans' affidavit “was a totally separate account of the facts evidence [sic] obtained in the investigation into the kidnapping and rape[,]” and “[n]o causal nexus existed between the blood test results obtained as a result of the first warrant and Detective Evans' Affidavit of Probable Cause dated March 23, 2006.” Commonwealth v. Henderson, CC 200511250, slip op. at 4 (C.P. Allegheny, June 20, 2006). Thus, the suppression court determined that the independent source doctrine was satisfied.

Upon trial, Appellant was convicted of the charged offenses. An appeal ensued, in which the Superior Court affirmed in a memorandum opinion. In its analysis, the intermediate court relied on Commonwealth v. Smith, 808 A.2d 215 (Pa.Super.2002), in which another panel previously accepted, for purposes of the independent source rule, that there may be some degree of overlap between the “independent” police investigation and a prior, tainted one. See id. at 221, 223. The court relied on Detective Evans' development of additional evidence with an “independent origin” as establishing that his affidavit was “free of the taint of the first search warrant.” Commonwealth v. Henderson, No. 903 WDA 2007, slip op. at 11–12, 963 A.2d 566 (Pa.Super. Sept. 3, 2008).

We allowed a further discretionary appeal to consider whether the independent source doctrine validates a serial search warrant obtained from a second investigation conducted by a police officer from the same department. See Commonwealth v. Henderson, 601 Pa. 564, 975 A.2d 1077 (2009) (per curiam ). The specific probable-cause determinations relative to the two warrants are not presently at issue; here, we accept that—although Detective Johnson's affidavit was inadequate—the affidavit of Detective Evans was sufficient to establish probable cause.8

Presently, Appellant maintains that the independent source doctrine cannot pertain, because the suppression record does not establish that Detective Evans' investigation was “truly independent” of Detective Johnson's. To the contrary, Appellant and his amici, the Pennsylvania Association of Criminal Defense Lawyers and the American Civil Liberties Union of Pennsylvania, regard the former as “wholly dependent” on the latter. Brief for Appellant at 11. In this respect, Appellant stresses that the detectives were members of the same sex assault unit; they conferred about the case; Detective Evans worked from the preexisting case file; and a substantial portion of Detective Evans' affidavit overlaps with Detective Johnson's. Accord Brief for Amicus Pa. Ass'n of Criminal Def. Lawyers at 15 (“A truly independent investigation does not occur when officers from the same police department as the officer who illegally secured the evidence in question secure a new warrant by reviewing the illegal warrant and the reports of the first officer and add a few new facts to the new warrant.”).

Appellant also questions the suppression court's finding of the absence of any link between the incriminating DNA test results from the initial blood sample and the second government investigation, given that the prosecution was in possession of the highly incriminatory results at the time such inquiry commenced. Relatedly, he raises fairness concerns associated with the use of the independent source doctrine to sanction serial police investigations motivated by challenges to incriminating evidence obtained pursuant to facially deficient first warrants. To address such concerns, Appellant favors a rule dictating that a second investigation motivated by flaws in a preceding one cannot serve as an independent source, as well as a rebuttable presumption of such motivation arising from spin-off investigations ensuing upon the filing of suppression motions.

The arguments of Appellant and his amici underscore the high value placed by this Court on the Pennsylvania Constitution's protection of individual privacy interests, as exemplified in such decisions as Commonwealth v. Edmunds, 526 Pa. 374, 394, 586 A.2d 887, 897 (1991) (interpreting Article I, Section 8 “to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries”), and the Mason/Melendez line of decisions. In this regard, they observe that Article I, Section 8 has acquired an “identity and vitality ․ separate and distinct from that of the Fourth Amendment,” Brief for Appellant at 17 (quotation marks and citation omitted), and they stress the broader purpose served by the exclusionary rule under Pennsylvania constitutional law. Compare, e.g., United States v. Leon, 468 U.S. 897, 916–18, 104 S.Ct. 3405, 3417–18, 82 L.Ed.2d 677 (1984) (explaining that the sole purpose of the exclusionary rule under Fourth Amendment law is to deter police misconduct, and applying a cost-benefits rationale to support adoption of a good-faith exception), with Edmunds, 526 Pa. at 399, 586 A.2d at 899 (rejecting the good-faith exception for purposes of the exclusionary rule as applied in the Article I, Section 8 context, with emphasis on the privacy rationale). See generally Brief for Amicus Pa. Ass'n of Criminal Def. Lawyers at 10 (“The development of Pennsylvania jurisprudence clearly reveals that this Court has recognized and maintained a strong preference for the rights of the individual over coercive state action.”). Appellant and his amici complain that the Superior Court, in this and other decisions, has not adhered to the ideals reflected in such decisions. See, e.g., Brief for ACLU of Pa. at 15 n. 5 (attributing to the intermediate court “its own independent less stringent source doctrine”).

Finally, Appellant regards the police conduct this case as most troublesome given the element of intrusiveness into the human body. See Commonwealth v. Martin, 534 Pa. 136, 142–43, 626 A.2d 556, 560 (1993) (explaining that, “although privacy may relate both to property and to one's person, an invasion of one's person is, in the usual case, [a] more severe intrusion on one's privacy interest than an invasion of one's property”). According to Appellant:

What is at stake if the lower court's opinion is permitted to stand is an absolute abrogation of a citizen's expectation of privacy in his or her own person. Officers of this Commonwealth would be free to repeatedly extract blood from citizens, even though a prior search was found unconstitutional, correcting perceived defects in search warrants until a Constitutional level of probable cause has been demonstrated.

Brief for Appellant at 13.

The Commonwealth, for its part, does not contend that Detective Evans' investigation meets the Melendez requirement of “true independence.” Rather, it advocates the application of a less exacting standard to circumstances that do not involve a knowing circumvention of a suspect's constitutional rights through intentional police misconduct.9 The Commonwealth explains that this is, at least in substance, the approach taken by the Superior Court in a series of decisions involving illegal acquisitions of blood-related evidence, see Commonwealth v. Ruey, 854 A.2d 560 (Pa.Super.2004), aff'd on other grounds 586 Pa. 230, 892 A.2d 802 (2006) (plurality); Smith, 808 A.2d at 215; and Commonwealth v. Lloyd, 948 A.2d 875 (Pa.Super.2008), and suggested by two concurring Justices in Ruey, 586 Pa. at 256–59, 892 A.2d at 817–19 (Saylor, J., concurring, joined by Castille, C.J.). According to the Commonwealth, the appropriate standard in the absence of egregious police misconduct is the two-part inquiry set forth in Murray, namely, whether the decision to seek a warrant was prompted by something attained as a result of unlawful government conduct, and whether the approving magistrate had been informed of the improperly obtained information. See Murray, 487 U.S. at 542, 108 S.Ct. at 2536; see also supra notes 3 and 4; accord Brundidge, 533 Pa. at 175–76, 620 A.2d at 1119. While therefore refraining from use of the “truly independent” rubric, the Commonwealth regards Detective Evans' investigation as “sufficiently removed” from that of Detective Johnson to alleviate any taint. Brief for Appellee at 31. The Commonwealth concludes:

[B]ecause the record in the instant matter establishes that there was sufficient probable cause beyond the appellant's DNA results upon which to seek a search warrant for appellant's blood, because the request for the second warrant was clearly not prompted by those results, because the magistrate did not issue the warrant based on those results, and because there was no police misconduct involved here, ․ the DNA results obtained from a draw of the appellant's blood were admissible under the independent source doctrine in conformity with Article 1, Section [8] of the Pennsylvania Constitution.

Id. at 39.

We begin with the acknowledgement that, from an original-intent frame of reference relative to Melendez, the independent-investigative-team requirement appears to have been intended to extend to the broader category of unlawful searches and seizures, and the requirement of true independence was to have meant just that. The architect of the rule made this plain enough in his dissent in the recent, divided Ruey decision. See Ruey, 586 Pa. at 259–60, 892 A.2d at 819–20 (Cappy, C.J., dissenting) (opposing any departure from the requirement of true independence in a deficient affidavit scenario, even in the absence of overt police misconduct).

The sincere intentions underlying the innovation are clear enough. As amply related by Appellant and his amici, there was a heartfelt desire to vindicate the privacy interests of Pennsylvania citizens against unlawful government conduct. While there is a difference between egregious police misconduct and lesser infractions, such as carelessness, incompleteness, and/or oversight, the ideals underlying the independent approach to Article I, Section 8 jurisprudence—that privacy is to be guarded jealously against unlawful government intrusions and the probable-cause requirement is not to be diluted—extend to the wider range of incursions.

Since, however, the independent source doctrine lies outside the terms of the Pennsylvania Constitution, the embellishments of Mason and Melendez represented a form of prophylactic judicial lawmaking, as was candidly acknowledged in Mason in the following terms:

It is axiomatic, of course, that once a judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires.

Mason, 535 Pa. at 568, 637 A.2d at 255. This has, of course, left the courts free in subsequent cases to consider whether the broader pronouncements made there are as sensibly applied elsewhere, as new fact patterns are presented diverging from those before the Court in Mason and Melendez.

Notably, for better or for worse, the experience with broadly stated prophylactic rules often has been that they cannot be sustained on their original terms. A ready example is the judicial rule that police were not to interrogate an arrestee for more than six hours after arrest unless the accused was brought before a neutral magistrate and arraigned, on pain of suppression of inculpatory statements attained in violation of the rule. See Commonwealth v. Davenport, 471 Pa. 278, 286, 370 A.2d 301, 306 (1977). In subsequent decisions, this rule became attenuated through pronounced limitations and exceptions, so that the force intended by the original proponents ultimately was lost. See Commonwealth v. Perez, 577 Pa. 360, 371–72 & n. 6, 845 A.2d 779, 785–86 & n. 6 (2004) (cataloguing and discussing various of the limitations and exceptions to the six-hour prompt-arraignment rule). For this reason, regardless of its salutary purposes, the bright-line six-hour prompt arraignment rule ultimately was discarded, see id., and that abandonment was supported even by a Justice who would have preferred enforcement of the rule on its original terms. See id. at 381–82, 845 A.2d at 792 (Saylor, J., concurring and dissenting) (supporting the abrogation of the prompt-arraignment rule only in light of its effective evisceration over time).10

A similar weakening of the Melendez requirement of true independence can be seen in the present case. No one could seriously contend that Detective Johnson's and Evans' investigations were “truly independent” under a conventional understanding of those words, where the two conferred about the case and the latter worked directly from the case file previously maintained by the former.11 Indeed, to its credit, the Commonwealth does not so argue. Nevertheless, in the present case, the suppression court, believing Melendez applicable, implicitly diluted the true independence requirement by deeming it satisfied in spite of a collaborative transfer of a case file.

The greatest difficulty in the enforcement of a prophylactic rule intended to guard individual liberties is on account of the competing value in society's interest in identifying and punishing wrongdoers. Among other ways, this is manifested in the context of the independent source rule in the courts' reluctance to put police in a worse position than they were in prior to an irregularity. See Brundidge, 533 Pa. at 176–77, 620 A.2d at 1120. Furthermore, this tension between privacy and criminal justice enforcement has led to cost-benefit balancing in the search-and-seizure arena. See, e.g., Leon, 468 U.S. at 922, 104 S.Ct. at 3420 (explaining, for purposes of Fourth Amendment law, that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion”). While the execution of this approach has had strong detractors, see, e.g., Wayne R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment § 1.3(b) (4th ed.2004), experience shows this type of assessment will occur in the courts despite the best efforts of those jurists who may oppose it, and it is our considered position that it is better that it be done in the open rather than occurring as unstated subtext.

In the present circumstances, we are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans' status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct.12 Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881–82. Ultimately, we believe the “twin aims” of Article I, Section 8—namely, the safeguarding of privacy and enforcement of the probable-cause requirement—may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Finally, we acknowledge the intrusiveness involved in the performance of a second blood draw occasioned by a defective first warrant. We note only that the need for the serial sample is also an unintended consequence of a previous departure from Fourth Amendment law, under which suppression would not have been required of results of the first DNA test. See Leon, 468 U.S. at 926, 104 S.Ct. at 3422 (“In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.”).

The order of the Superior Court is affirmed.

I join the learned Majority Opinion in its entirety. Where, as here, police act pursuant to a warrant and engage in no misconduct, the broad state constitutional dictum articulated in Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996)—purporting to require in all independent source cases that, among other things, the police team involved in the second search must be “truly independent” of the first—simply cannot be sustained. The operative facts here are very different from the circumstances actually at issue in Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993) and Melendez; and I fully agree with the Majority that, “[w]here [ ] malfeasance is not present, ․ the Murray [v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ] standard strikes the appropriate balance between privacy and law enforcement.” Majority op. at –––– (footnote omitted).

Mr. Justice Saylor's restrained, candid and modest attempt to fashion state constitutional jurisprudence along principled lines ameliorates the lack of restraint in the Melendez Court's fashioning a quasi-legislative rule that would govern cases and circumstances not then before us. I, for one, would be inclined to go farther and reexamine Melendez itself, since it was unsupported by a principled state constitutional analysis. See Commonwealth v. Russo, 594 Pa. 119, 934 A.2d 1199, 1209 n. 11 (2007) (“We reiterate that we believe that state constitutional decisions are more secure when they are supported by the searching inquiry contemplated by [Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) ].”).1 However, that analysis can await a case where the issue is squarely presented.

In any event, I write separately primarily to respond to Madame Justice Todd's Concurring Opinion. Justice Todd supports a reaffirmation and extension of the Melendez rule as stated to embrace factual circumstances such as those in the case sub judice, i.e., cases, unlike Mason and Melendez, where there was no police misconduct.2 I have no doubt that my esteemed colleague's views in this regard are as sincere and heartfelt, Majority op. at ––––, as those of the Justices who innovated the broad Melendez rule. However, in expressing the view, Justice Todd levels what I believe are unwarranted, and indeed ironic, criticisms of the Majority Opinion.

Justice Saylor has very carefully accounted for the original intentions of the Melendez Court; the sincerity of those intentions; the nature of the constitutional rule there innovated (non-textual and prophylactic); the inherent difficulty with practical application of broadly stated prophylactic rules; the mischief that arises when courts try to force new facts to fit problematically-broad pronouncements, as occurred in the trial court here (and as is mirrored in Justice Todd's concurrence); and the fact that any serious constitutional analysis must account for society's interest in identifying and punishing wrongdoers as well as the value (protection of individual liberties) served by the prophylactic pronouncement that was the concern of the Melendez Court. The Majority could be far less kind to Mason and Melendez. The Majority could focus on: the absence of an Edmunds analysis in either case, indeed the absence of any authority but the apparent policy preferences of court majorities; the importance of judicial restraint before constitutionalizing evanescent preferences; and the fact that, to the extent Melendez purported to speak to circumstances not involving police misconduct, its prophylactic rule was, by definition, obiter dicta.

For its careful effort, the Majority Opinion is met with a concurrence accusing the Court of “choosing” to “radically” constrict the Melendez “rule,” and of “truncating” the rule, as envisioned by Melendez, “in a sweeping and prospective fashion.” Todd, J., concurring slip op. at –––– – ––––. The irony in the accusations is striking, given the nature of the decision in Melendez.

The “truly independent police or investigative team” requirement at issue was proposed in the Concurring Opinion of Mr. Justice (later Chief Justice) Cappy in Mason, and his position was then “adopted” by a majority of the Melendez Court. Without any explanation, Melendez then applied this new rule retroactively to condemn police conduct that had occurred before the preference was constitutionalized. Melendez, 676 A.2d at 231. But, that was less than half the harm of Melendez because its rule, as fashioned, and as defended by the concurrence here, purported to establish an independent police team requirement in all independent source cases. It was, as Justice Saylor notes, articulated as a prophylactic rule—albeit the Melendez Court did not admit as much, nor did the Court try to explain or justify such a radically broad pronouncement.

And so, in addition to being applied retroactively to condemn the police in Melendez, the Melendez rule “was sweeping and prospective,” purporting to decide cases not then before the Court—like this one. In this respect, the independent-police-team-in-all-independent-source-cases innovation was unnecessary to the decision, improperly legislative in scope, and as overbroad and ill-informed (in that it did not perceive or discuss the circumstance here) as it was constitutionally unmoored. Whether one agrees with Melendez or not, it was a radical decision, which chose to remake existing constitutional law, chose to severely constrict the police and to condemn police conduct retroactively, and chose to attempt to govern future circumstances not then before the Court, as if the Court were a super-legislature. With apologies to the Bard, at least as against the concurrence's accusations here, Justice Saylor's modest and restrained Majority Opinion is, when compared to Melendez, as “Hyperion to a satyr.” Shakespeare, William, Hamlet (I.ii.140).

Justice Todd's Concurring Opinion also claims that the Majority's “limitation” on Melendez is “wholly ill-advised and unwarranted.” Todd, J., concurring op. at ––––. Notably, what was warranted here, at all times, was the conduct of the police. Judicial officers approved the warrants. The concurrence maintains that the “purpose of the Mason/Melendez rule of strict independence of investigative teams, was ․ to ensure that, if such evidence is to be used by a court of this Commonwealth in a criminal trial, it has been thoroughly purged of the taint of the original violation of the rights secured by Article I, Section 8.” Todd, J., concurring op. at ––––. To be clear, the “original violation,” as noted in Justice Todd's concurring opinion, was not a police violation and there was no police misconduct here. A judicial officer erred, as judicial officers occasionally do, in assessing probable cause for the first warrant. That judicial error did not operate to taint the police “investigative team.” As the U.S. Supreme Court has recently noted:

It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs.

Davis v. United States, ––– U.S. ––––, ––––, 131 S.Ct. 2419, 2434, 180 L.Ed.2d 285 (2011).3

If the Magisterial District Judge had declined to issue the first search warrant here, the same police or investigative team would have been free to make use of what information it had, and then to simply refine the affidavit, or gather more evidence, and re-apply for a warrant.4 In a system of separated powers, by what logic can a court assume the constitutional power to coerce the executive into adopting specific police investigative policies merely because a judicial officer has made a legal error? I understand the temptation to employ the exclusionary rule to “punish” or deter acts of police excess. But, it is quite another exercise to pointlessly punish the executive—and victims of brutal crimes—for a judicial mistake. Nothing in Article I, Section 8 authorizes this sort of judicial micromanagement of police investigations.

The Majority notes that the Commonwealth does not argue that the second investigation and warrant here were “truly independent” of the first one, and reasons that no one could seriously contend otherwise “under a conventional understanding of those words.” Majority op. at ––––, ––––. I agree; thus, if the Melendez dicta were binding, reversal would be required. But, Melendez is not binding and cannot be. This is a case involving a brutal abduction and rape; two warrants issued by judicial officers, the second of which unquestionably was premised upon probable cause; and the seizure of blood (no knocking down doors); and no police misconduct. The notion that such a crime should be rendered non-prosecutable because the Melendez Court, not facing such facts, purported to constitutionalize a minority position from the U.S. Supreme Court concerning the Fourth Amendment which would require an independent police investigative team, as if it were a Pennsylvania state constitutional command, in all cases, without benefit of relevant argumentation or state constitutional analysis, is absurd. Nothing in the Pennsylvania constitutional tradition, which did not even recognize an exclusionary rule, requires this.

The judicially-fashioned exclusionary rule requires police to answer for their actual mistakes; the Majority Opinion here takes responsibility for an obvious judicial mistake in Melendez and mitigates the harm. I join the corrective effort.

I concur in the result reached by the majority, as I agree that the results of testing performed on the second sample of blood taken from Appellant's body were, as the suppression court found, admissible. However, I cannot endorse the majority's rationale in arriving at this result. The majority acknowledges that, in order for evidence to be admissible at a criminal trial under Article I, Section 8 of the Pennsylvania Constitution, the rule articulated by our Court in Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993), and Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996) (hereinafter, the Mason/Melendez rule), was intended to require an independent investigative team in all instances where police conduct an unlawful search and seizure prior to seizing the evidence through lawful means.1 Nevertheless, despite that recognition, the majority now chooses to radically constrict the applicable scope of that rule to only those limited instances in which police engage in the specific egregious police misconduct which was exhibited in those cases—namely, battering down the door of an apartment with a battering ram without probable cause (Mason ), or unlawfully seizing the owner of a house and using her key to gain entry to her house (Melendez ). I believe such a limitation to be wholly ill-advised and unwarranted.2

The overarching concern for protecting the fundamental individual rights secured by Article I, Section 8,3 which was the impetus for our Court's “independent source” requirement, see Melendez, 544 Pa. at 334, 676 A.2d at 231, is not diminished in the factual context of the instant case; nor would application of this requirement operate in the present case to “forever” bar the Commonwealth “from obtaining non-evanescent evidence connecting Appellant with his crimes” as the majority suggests. Majority Opinion at ––––. Nonetheless, the majority has truncated the Mason/Melendez rule in a sweeping and prospective fashion so that it will henceforth apply only to those narrow subset of cases in which police conduct amounts to “willful misconduct” or “malfeasance.” In so doing, our Court has needlessly, and in my view, unwisely, diminished the protections of the citizenry of this Commonwealth which Article I, Section 8 affords. Thus, I write separately to distance myself from the majority's curtailment of this rule, particularly as the facts of this case present no compelling reason for doing so.

In adopting a standard for the application of the independent source doctrine under Article 1, Section 8 for all cases in which police “malfeasance is not present,” Majority Opinion at ––––, the majority supplants the Mason/ Melendez rule with that set forth by the United States Supreme Court in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). However, such an all-encompassing embrace disregards our Court's clear recognition in Mason and Melendez that the federal Murray standard is insufficiently protective of the rights of the people of this Commonwealth which are secured by Article 1, Section 8.

The proscription against unlawful searches and seizures, contained in Article 1, Section 8, is one of the foundational protections of individual human rights provided by the framers of our state Constitution, and is “meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.” Commonwealth v. Edmunds, 526 Pa. 374, 394, 586 A.2d 887, 897 (1991). This prohibition against governmental trammeling of the right of individual privacy through unlawful intrusion was the driving force behind the inclusion of the prohibition against unlawful searches and seizures in our original Constitution in 1776, a full 15 years before the Fourth Amendment was ratified, and it remains enshrined, virtually unchanged, in our present charter of governance. See Commonwealth v. Sell, 504 Pa. 46, 65, 470 A.2d 457, 467 (1983) (“[T]he survival of the language now employed in Article I, Section 8 through over 200 years of profound change in other areas demonstrates that the paramount concern for privacy first adopted as part of our organic law in 1776 continues to enjoy the mandate of the people of this Commonwealth.”). The historical motivation of the drafters of our original Constitution, led by Benjamin Franklin in 1776, was to protect the right of individual privacy from unlawful governmental intrusion through the insistence that no search or seizure of a person via warrant take place unless that warrant was supported by probable cause:

The primary purpose of the warrant requirement was to abolish ‘general warrants,’ which had been used by the British to conduct sweeping searches of residences and businesses, based upon generalized suspicions. Therefore, at the time the Pennsylvania Constitution was drafted in 1776, the issue of searches and seizures unsupported by probable cause was of utmost concern to the constitutional draftsmen.

Edmunds, 526 Pa. at 394, 586 A.2d at 897 (citation omitted). Thus, to bolster this aim of Article 1, Section 8—the safeguarding of individual privacy and ensuring that warrants will be issued only on probable cause—it is a bedrock principle of our law that any evidence obtained through a search with a warrant which was issued without probable cause will be excluded from use by a court of this Commonwealth in a criminal trial.

By contrast, the United States Supreme Court has embraced a different rationale for excluding evidence seized in violation of the individual privacy rights secured by the Fourth Amendment to the United States Constitution, which does not require the exclusion of such evidence in order “to redress the injury to the privacy of the search victim.” U.S. v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Rather, the high Court considers the primary purpose for excluding such evidence to be deterrence of future police violations of the Fourth Amendment. Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Thus, in Murray, the high Court's elucidation of the parameters required by the Fourth Amendment for the application of the independent source doctrine4 was in furtherance of this objective of prospective deterrence of police misconduct. The high Court utilized a “cost-benefit” approach, which the majority seemingly has adopted today, in explaining that the doctrine's application should be governed by the balancing of the interest in deterring unlawful police conduct against the interest in receiving probative evidence at a criminal trial:

The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position tha [n] they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

Murray, 487 U.S. at 537, 108 S.Ct. 2529 (emphasis omitted) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). The Court ultimately considered the objective of deterrence to be adequately served by allowing evidence which had previously been illegally seized by police to be admitted into evidence, so long as the subsequent acquisition of such evidence was “genuinely independent” of a preceding tainted seizure. Murray, 487 U.S. at 542, 108 S.Ct. 2529. In this regard, Murray delineated two factors which would defeat a finding of independence: (1) the decision of the police to request the second search warrant was prompted by what was seen during the initial unlawful search, or (2) evidence or information obtained in the original search was presented to the magistrate in the application for the second warrant and thereby affected his decision to issue the second warrant. Id.

We utilized the Murray test in Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993); however, such utilization was proper in that case, as our Court was considering only the question of the applicability of the independent source doctrine under the Fourth Amendment to the United States Constitution. Later that same year, though, in Commonwealth v. Mason, 535 Pa. 560, 637 A.2d 251 (1993), our Court considered whether the Murray test governed the application of the independent source doctrine under Article I, Section 8 of the Pennsylvania Constitution. Specifically, we considered whether the doctrine permitted the use of evidence seized from the defendant's apartment after members of a police undercover drug investigative unit, who were awaiting the arrival of a search warrant which one of their team members had gone to a magistrate to obtain, decided to break down the apartment door with a battering ram and search it. Our Court concluded such a warrantless intrusion and seizure of evidence, absent probable cause and exigent circumstances, violated Article I, Section 8, and the evidence discovered in the unlawful search could not be admitted pursuant to the independent source doctrine simply because a warrant was, in fact, later issued authorizing a search of the apartment.

In arriving at this conclusion, our Court recognized that if it were to decide the case based on Fourth Amendment law as articulated by Murray, suppression of the evidence would not be required. However, mindful that the protections of Article 1, Section 8 are applied not merely for the purpose of deterring police misconduct, but “also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause,” Mason, 535 Pa. at 571, 637 A.2d at 256, we declined to follow the Murray test.

Former Chief Justice, then Justice, Cappy authored a joining concurrence in which he lauded the majority's approach as “reining in” what he viewed, in the wake of Brundidge, as a potential “unfettered stampede” to use the independent source doctrine to contravene the clear purposes of Article I, Section 8 and our exclusionary rule. Id. at 572, 637 A.2d at 257. From Justice Cappy's perspective, the source of the information for the issuance of the warrant in Brundidge was not truly independent. Id. at 572 n. 1, 637 A.2d at 257 n. 1.

Justice Cappy expressed his belief that the independent source doctrine should be applied only in very narrow and limited circumstances, “where the ‘independent source’ is truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.” Id. at 573, 637 A.2d at 257–58 (emphasis original). He voiced his overarching concern that “the ‘independent source doctrine,’ as an exception to the exclusionary rule, should not be allowed to swallow the rule itself.” Id. In his view,

[T]he application of the “independent source doctrine” in a situation where the ‘independent source’ is not truly independent of both the tainted evidence itself and the officers involved in the initial illegal search will completely eviscerate the exclusionary rule, failing either to deter police misconduct or to protect individual privacy rights as required by Article I, Section 8 of the Pennsylvania Constitution.

Id. at 574, 637 A.2d at 258.

It was this same concern for protecting the privacy interests of individuals in their persons and their homes that led this Court in Melendez to adopt Justice Cappy's suggested restriction on the use of the independent source doctrine under Article I, Section 8 to only those situations where the source “is truly independent.” Melendez, 544 Pa. at 334, 676 A.2d at 231 (quoting Mason, 535 Pa. at 573, 637 A.2d at 258).5 As the majority herein recognizes, this restriction was intended to apply in all instances where the evidence in question previously was obtained via an illegal search and seizure. This was wholly consonant with our Court's emphasis that it is irrelevant for purposes of Article I, Section 8 whether an illegal seizure of evidence is the result of blatant police misconduct or was merely the product of inadvertent reliance on a warrant lacking probable cause, since Article I, Section 8's emphasis on protecting individual privacy prohibits the introduction of evidence at trial which is obtained through either type of conduct with equal force.6 Edmunds, supra. The purpose of the Mason/Melendez rule of strict independence of investigative teams, was, therefore, to ensure that, if such evidence is to be used by a court of this Commonwealth in a criminal trial, it has been thoroughly purged of the taint of the original violation of the rights secured by Article I, Section 8. See Commonwealth v. Melilli, 521 Pa. 405, 421, 555 A.2d 1254, 1262 (1989) (“If the prosecution can demonstrate that the allegedly tainted evidence was procured from an independent origin—a means other than the tainted sources—the evidence will be admissible.”)

The majority's present restriction of this requirement to only the rare situations where the police have engaged in the most blatant type of misconduct significantly weakens this safeguard, since, as Justice Marshall has aptly observed:

When ․ the same team of investigators is involved in both the first and second search, there is a significant danger that the “independence” of the source will in fact be illusory, and that the initial search will have affected the decision to obtain a warrant notwithstanding the officers' subsequent assertions to the contrary. It is therefore crucial that the factual premise of the exception—complete independence—be clearly established before the exception can justify admission of the evidence.

Murray, 487 U.S. at 548–549, 108 S.Ct. 2529 (Marshall, J., dissenting).7

Consequently, in my view, whenever evidence is seized pursuant to an initial illegal search undertaken as the result of a search warrant issued without probable cause, and the Commonwealth later seizes that same evidence pursuant to a subsequent valid search warrant, the Mason/Melendez rule should be applied to guarantee that the admission of such evidence is wholly free of the taint of the original Article I, Section 8 violation. Thus, evidence obtained pursuant to a subsequent search warrant, based on constitutionally sufficient probable cause, should be deemed to have originated from an independent source only if: (1) the tainted evidence obtained from execution of the prior illegal warrant is not relied upon in the pursuit of the subsequent warrant, and (2) the affiant or affiants seeking the subsequent warrant are truly independent of the police officers or the investigative team8 which participated in the previous illegal search and seizure.

Although the majority posits it is presently necessary to abandon the Mason/Melendez rule because, in its estimation, enforcement in this case would potentially result in “the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes,” Majority Opinion at ––––, the record does not support this conclusion. As the majority recites, the trial court, applying the Mason/Melendez rule, found the evidence obtained pursuant to the second warrant to be admissible under the independent source doctrine as it was “independent from the tainted evidence and the investigative team” who obtained the first warrant. Trial Court Opinion, 6/20/06, at 5 (citing Melendez ). I believe the evidence adduced at the suppression hearing, when viewed in a light most favorable to the Commonwealth as the prevailing party, supports the trial court's finding in this regard.9

Regarding the first prong of the application of the Mason/Melendez rule, which requires that the tainted evidence play no role in the investigative process which leads to the obtaining of the second search warrant, I discern nothing from the record to indicate that Appellant's DNA test results obtained by the execution of the first warrant, in which Detective Evans did not participate, contaminated the investigative process which led to the issuance of the second warrant. As acknowledged by the majority, the record does not establish that Detective Evans had any awareness of those test results, and neither the results themselves, nor any derivative evidence therefrom, was utilized by Detective Evans in his investigation, nor in his affidavit of probable cause presented to the magistrate for the issuance of the second warrant. Thus, the tainted evidence procured by the first warrant did not infect the magistrate's decision to issue the second warrant.

With respect to the second prong of the Mason/Melendez rule, that the independent source be truly independent from the police officers or investigative team who engaged in the illegal search, the record evidence, when viewed most favorably to the Commonwealth, supports the trial court's conclusion that Detective Evans was not a member of the group of officers who initially investigated the victim's assault, or that he played any other part in the investigation which led to the obtaining of the first search warrant. Indeed, at the time the first investigation was taking place, Detective Evans was doing “pre-employment polygraphs” for the Pittsburgh Police Department. N.T. Suppression Hearing, 5/22/06, at 53.

Additionally, and critically, there was no evidence of record suggesting that, as Detective Evans conducted his own investigation, Detective Johnson, or any other member of the original investigative team, supervised, coordinated, or collaborated with Detective Evans on the conduct of his investigation in any way. According to the testimony adduced under oath at the suppression hearing, Detective Evans' sole contact with Detective Johnson regarding the investigation occurred when Detective Evans met with Assistant District Attorney Janet Necessary and Detective Johnson, and was told at that time to research and develop probable cause for a search warrant for Appellant's blood. Detective Evans attested, under oath, that he did not review the first search warrant with Detective Johnson, nor was he informed of any problems with that warrant. Id. at 55–56, 58–59.

Although Detective Evans' investigation quite naturally covered some of the same ground as Detective Johnson's, the record supports the conclusion that he did not simply robotically reenact Detective Johnson's efforts.10 Detective Evans testified that he did not rely solely on the information in the case file in the conduct of his investigation, but, rather, conducted his own independent investigation, which included: reviewing a number of reports in the file in addition to Detective Johnson's report; reading the victim's medical records, which provided the additional information the victim had initially reported to the emergency room doctor that she was assaulted by two men; interviewing the controller at the nonprofit organization where Appellant previously worked and confirming both, that Appellant had a key to the van identified as used in the assault, and, also, that the key was not returned after he left the employ of the organization; corroborating that Robert Hawkins, who was previously identified by an eyewitness as the person who abducted the victim, was Appellant's stepson and was with him on the day of the crime; and, finally, reviewing the crime lab report which excluded Robert Hawkins as the rapist. In view of these facts, the suppression court's finding that Detective Evans, in conducting his investigation, acted truly independently from Detective Johnson and the original investigative team who obtained the first invalid search warrant was supported by the record.

Under these circumstances, the second blood test results obtained through the execution of that warrant were admissible under the Mason/ Melendez rule, just as the lower court concluded. This case, therefore, presents no justification to re-assess this rule as the majority has done. Moreover, the majority does not merely “limit” the rule, as it suggests, but, rather, in my view, eviscerates it, which may lead to the very destruction of the exclusionary rule itself—an exceedingly perilous regression in the protection of individual rights which Justice Cappy expressly warned against in Mason. I am therefore compelled to concur only in the result reached by the majority in this matter.

Justice SAYLOR.*

Justice ORIE MELVIN did not participate in the consideration or decision of this case. Chief Justice CASTILLE and Justices EAKIN and McCAFFERY join the opinion. Chief Justice CASTILLE files a concurring opinion. Justice TODD files a concurring opinion in which Justice BAER joins.

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