0:16

The Supreme Court of

0:16

Pennsylvania is the highest

0:19

court in the Commonwealth and

0:19

the oldest appellate court in

0:22

the nation, an institution that

0:22

shapes our practice, our laws,

0:26

and our lives. This is a podcast

0:26

by attorneys and for attorneys

0:31

who argue before Pennsylvania's

0:31

court of final appeal. Welcome

0:36

to The Standard of Review by

0:36

SCOPAblog.

0:42

Hi, and welcome to

0:42

The Standard of Review by

0:44

SCOPAblog. I'm your host, Corrie

0:44

Woods, and I recently sat down

0:48

with attorney Aaron Marcus,

0:48

Chief of Appeals with the

0:50

Defender Association of

0:50

Philadelphia, who successfully

0:53

argued the case of Commonwealth

0:53

vs. Alexander, in which the

0:57

court held that the Pennsylvania

0:57

constitution grants motorists

1:00

greater privacy rights than the

1:00

Federal Constitution, requiring

1:04

that any search of an automobile

1:04

in Pennsylvania be supported not

1:07

only by probable cause, as the

1:07

Federal Constitution requires,

1:11

but also by exigent

1:11

circumstances that make it

1:14

impracticable to obtain a

1:14

warrant. The court's decision

1:17

depending on your point of view,

1:17

either overrules or recognizes

1:20

the invalidity of its prior

1:20

decision in Commonwealth vs.

1:24

Gary, which held that such

1:24

searches need only be supported

1:27

by probable cause. In the short

1:27

term the decision has resulted

1:30

in the invalidation of countless

1:30

searches as unconstitutional,

1:34

and in the long term

1:34

recalibrates the balance between

1:37

individual privacy rights and

1:37

the state's interest in

1:40

ferreting out crime. Let's listen. Our guest today is attorney

1:43

Aaron Marcus. Aaron is the Chief

1:46

of the Appeals Unit with the

1:46

Defender Association of

1:49

Philadelphia, where he served

1:49

since 2006. He's also an adjunct

1:53

professor of law at the Delaware

1:53

Law School, a published legal

1:56

author and vice chair of

1:56

Pennsylvania's criminal

1:59

procedural rules committee.

1:59

Prior to joining the Defender

2:01

Association, Attorney Marcus

2:01

served as a staff attorney for

2:04

the United States Court of

2:04

Appeals for the Third Circuit.

2:07

Attorney Marcus is also an avid

2:07

cyclist. And in 2011, made a

2:11

58-day 3900 mile self-supported

2:11

bicycle trip from Philadelphia

2:18

to San Francisco. Attorney

2:18

Marcus, welcome to The Standard

2:21

of Review.

2:21

Thanks so much. It's a pleasure to be here.

2:23

I wonder if you

2:23

could start out by just telling

2:25

me sort of how you became a

2:25

lawyer, why you became a lawyer,

2:29

and how you came to your current practice.

2:31

So you know, I

2:31

went to law school in Minnesota

2:36

in 2001. But to start before

2:36

that, I did not intend to be a

2:43

lawyer. You know, I've always

2:43

been involved as a kid and

2:46

through high school and sort of

2:46

political activism in some way

2:50

or another, but never envisioned

2:50

myself as being somebody who

2:53

would pursue a sort of

2:53

professional or legal career. In

2:56

fact, or in college, I thought I

2:56

wanted to be a geologist to

2:59

pursue science, and focused

2:59

pretty heavily on that

3:03

throughout much of my undergrad.

3:03

Until of course, I realized that

3:08

some of the advanced mathematics

3:08

was getting a little outside of

3:12

my comfort zone. And I was not

3:12

particularly enjoying that level

3:15

of scrutiny that I was having to

3:15

pay to, you know, address some

3:18

of the tougher scientific

3:18

quandaries. And, you know, my

3:22

political activism drew me back

3:22

in. So I ultimately decided that

3:26

law school was the right

3:26

approach and pretty much from

3:28

the get go knew that public

3:28

defense was sort of an area that

3:32

I would want to pursue. So even

3:32

from the start in Minnesota

3:35

after my first year, I worked

3:35

for the Minnesota appellate

3:38

public defender office in the

3:38

state. I was involved in the

3:44

public interest lawyers section

3:44

of the Minnesota bar and knew

3:48

kind of that area was where I

3:48

was going to be despite the fact

3:51

that I clerked for a couple years after law school, I was pretty committed to being a

3:53

career PD in that respect. So

3:58

once I left the Third Circuit, I

3:58

started at the Defender

4:01

Association and have been here

4:01

ever since. You know, it's now,

4:04

I started in September of 2006.

4:04

So going on 15 years at the

4:09

Defender, you know, six years,

4:09

the trial side, you know, last

4:13

nine in appeals. So, it's been a

4:13

great experience. And I love my

4:19

job, you know, I love many of my

4:19

clients, I love the people I

4:22

work with. And I like having an

4:22

opportunity to really affect the

4:27

law and how it develops in a

4:27

state. That's, you know, the

4:30

sixth largest state in the

4:30

nation. So there's a lot of

4:32

people who are who can be

4:32

directly impacted by really

4:36

thoughtful and dedicated state

4:36

activity on the legal side. So

4:40

it's kind of where I've been

4:40

focusing my efforts and really

4:42

enjoy it.

4:43

So you mentioned that you worked in both the trial unit and the appeals unit.

4:44

Could you explain sort of how

4:48

your function is kind of

4:48

different and how those tasks

4:50

are kind of different?

4:51

Yeah, absolutely.

4:51

I mean, the obvious differences

4:56

are clear, so I won't need to

4:56

talk about that. But when you

4:59

are certainly as either a public

4:59

defender doing criminal defense

5:03

or you know, private or frankly,

5:03

trial practice in any respect is

5:08

going to be a very different

5:08

method of preparing and

5:12

addressing a case as opposed to

5:12

appellate work. So I think

5:16

they're interrelated in some

5:16

degree, because being a having

5:20

experience on the trial side can

5:20

make one a much better appellate

5:23

attorney, I think as you can

5:23

understand the record and the

5:26

motivations and the interests of

5:26

the parties below in a way that

5:30

you wouldn't otherwise. You

5:30

know, so as a trial

5:35

practitioner, you definitely see

5:35

a lot of the practical side of

5:42

the law, right, like, as an

5:42

appellate lawyer, a lot of it is

5:45

going to be the nuance of

5:45

textual and statutory

5:50

interpretation, the policy

5:50

questions of how particular

5:53

decisions might affect the

5:53

outcome, and you're going to be

5:57

really parsing a lot of the

5:57

nuances of prior decisions and

6:01

precedent. Whereas in trial

6:01

practice, while all of those

6:05

things are important and

6:05

relevant, oftentimes, the most

6:09

important aspect of trial work

6:09

might be the practical result of

6:14

how the judge or the jury will

6:14

interpret a particular thing or

6:18

action, which can often be

6:18

simply just sort of a shrug and

6:23

knowing when not to present

6:23

things, knowing when to present

6:26

them. And really just

6:26

understanding sort of the the

6:29

human nature of the parties

6:29

involved and trying to work

6:32

sometimes your way around some

6:32

of those legal realities to get

6:37

a resolution that everyone can

6:37

be comfortable with, even if

6:40

it's not necessarily a clear

6:40

straight line through legal

6:44

precedent. So there's there's a

6:44

lot of difference in strategy

6:47

and thinking that goes into a

6:47

trial side than goes into the

6:50

appellate side. But often being

6:50

a good trial attorney and having

6:53

that experience will

6:53

fundamentally shift the way you

6:56

see the arguments that were made

6:56

at the trial, what things were

6:59

or were not important how you

6:59

can understand your forum, even

7:04

on appeal, because a judge who

7:04

has, an appellate judge, that

7:08

has trial practice experience or

7:08

trial experience, meaning if

7:11

they were a, you know, in

7:11

federal side, that district

7:14

court judge or in Pennsylvania,

7:14

if they were a Common Pleas

7:17

court judge, they are often

7:17

going to have a very different

7:20

perspective on what a particular

7:20

decision meant, what a

7:25

particular statement by a

7:25

witness means and why it was

7:28

made what is or is not harmless

7:28

error. So a variety of things

7:33

can impact that and

7:33

understanding those details. You

7:36

know, there's a legal realist in

7:36

me and understanding those

7:38

details can be very valuable. So

7:38

having both sides of the

7:42

practice, I think, is wonderful

7:42

experience to be a good

7:45

appellate lawyer.

7:46

So we're here

7:46

today to talk about the Court's

7:49

decision in Commonwealth vs.

7:49

Alexander. And in that case, the

7:53

court held that unlike the well,

7:53

the current interpretation of

7:57

the Federal Constitution,

7:57

Pennsylvania's Constitution

7:59

requires that the search of an

7:59

automobile must be supported not

8:03

only by probable cause, but also

8:03

by exigent circumstances. But

8:08

the history of Alexander

8:08

actually starts up a while

8:10

before that, really in the

8:10

1990s, during the first wave of

8:14

what would ultimately be called

8:14

judicial federalism. And the

8:17

court's adoption of what it

8:17

actually ended up adopting in

8:20

Alexander, way back when. So how

8:20

did the split between the

8:24

Federal Constitution and the

8:24

Pennsylvania Constitution on

8:27

this question, how did that

8:27

begin?

8:30

Yeah, so you

8:30

mentioned the 90s. And I'd

8:32

actually like to take it back

8:32

even further, frankly, you know,

8:37

so, as a general matter, right,

8:37

the big split did begin in the

8:44

90s with Commonwealth v. Edmonds

8:44

and I believe that case was

8:47

1991, in which the Pennsylvania

8:47

Supreme Court was addressing the

8:52

US Supreme Court's decision in

8:52

United States v. Leon, which

8:55

applied a good faith exception

8:55

to the Fourth Amendment's

8:58

exclusionary rule. Right for

8:58

those who are not particularly

9:01

versed in that area.

9:01

Essentially, what Leon held is

9:05

that, you know, because the

9:05

Fourth Amendment, the United

9:08

States Constitution was not

9:08

designed to protect privacy

9:12

rights, per se, but designed to

9:12

deter unlawful governmental

9:15

action of invading protected

9:15

Fourth Amendment spaces, when an

9:19

officer is acting under a

9:19

reasonable belief that that's

9:22

what the law allows, hence, good

9:22

faith, you can't deter an

9:27

officer who's acting reasonably

9:27

and in good faith. So therefore,

9:30

there's an exception to the

9:30

exclusionary rule. Pennsylvania

9:33

decided that, you know, Leon

9:33

really doesn't make a lot of

9:37

sense and they interpreted

9:37

looking under a case called

9:40

Commonwealth v. Edmunds that

9:40

Pennsylvania's constitution,

9:43

actually historically has been

9:43

interpreted more broadly, it's a

9:48

different policy protection such

9:48

that the right of privacy is

9:52

inherent in Pennsylvania's

9:52

article one section eight. So

9:56

there's a different purpose to

9:56

Pennsylvania's constitutional

10:00

protection and because of that

10:00

right to privacy, our court

10:03

interpreted with respect to the

10:03

good faith law that no we don't

10:06

care if the officer was

10:06

reasonable. What we care about

10:08

is protecting individual rights

10:08

to privacy and therefore, the

10:12

good faith exception does not

10:12

apply in Pennsylvania. With the

10:16

with respect to the vehicle

10:16

exception, the automobile

10:20

exception, right in that aspect,

10:20

I wanted to take it back even

10:23

before Edmunds because, you

10:23

know, you go back to the 1920s

10:26

and 30s, with the prohibition in

10:26

United States v. Carroll, or

10:29

Carroll v. United States. What

10:29

happened in that case was really

10:32

a question about the police need

10:32

to deal with emerging and novel

10:38

technology and sort of an

10:38

equilibrium adjustment in the

10:41

Fourth Amendment, right. That's

10:41

a term that we hear a lot in the

10:46

areas of digital technology.

10:46

Well, all technological changes

10:51

that happen need to be

10:51

considered and adjusted with,

10:53

you know, a balance between

10:53

citizens rights and police. And

10:57

so, you know, prohibition,

10:57

you've got this idea where,

11:01

well, now, people, criminals,

11:01

bootleggers have a real easy way

11:06

to transport all sorts of

11:06

illegal goods in cars that we

11:09

never really had before. And

11:09

police need some way to

11:13

adequately address the sort of

11:13

inherent mobility of cars and be

11:16

able to search these vehicles

11:16

when there's, especially in the

11:19

20s and 30s. There's no way

11:19

they're going to get a warrant,

11:22

when they come across a

11:22

bootlegger trying to cross state

11:24

lines, they're not going to be

11:24

able to get- have enough time to

11:27

do this unless they detain

11:27

everybody for who knows how long

11:30

to find somebody to issue a

11:30

warrant. So the courts basically

11:34

granted an exception, but that

11:34

exception still required a

11:37

probable cause plus exigency,

11:37

essentially what Alexander

11:41

requires today, and our federal

11:41

court said, well, the exigency

11:46

is sort of the general mobility

11:46

of the vehicle, but it's not a

11:49

per se, it's just in situations

11:49

where the mobility of the

11:52

vehicle would prevent time for

11:52

getting a warrant, you can

11:54

search a car on probable cause.

11:54

There was some shifts in

11:57

Pennsylvania law, though, prior

11:57

to the 90s, where you start

12:02

seeing, despite the Federal

12:02

Constitutional interpretation in

12:07

the Supreme Court, focusing on a

12:07

different justification for the

12:11

automobile exception, not simply

12:11

the mobility of a vehicle, but

12:16

then in the 70s, you start

12:16

talking about privacy interests

12:20

in cars, you know, you have a

12:20

decision in US Supreme Court in

12:23

Chambers that has not just the

12:23

mobility of the vehicle, but

12:26

sort of the concept of the

12:26

general privacy interests at

12:29

stake, that the intrusion of

12:29

seizing the vehicle versus the

12:32

intrusion of searching it really

12:32

aren't all that different, your

12:35

privacy interests really aren't

12:35

that high in the car, you know,

12:39

so the US Supreme Court started

12:39

to diverge from this probable

12:43

cause exigency requirement only

12:43

for the mobility issue, really

12:47

in the 70s. And then really did

12:47

it in '89 in Carney, California

12:51

v. Carney. The Pennsylvania

12:51

Supreme Court has consistently

12:55

in the 80s and 90s, kind of

12:55

followed that Carroll doctrine,

12:58

it did not really change that

12:58

idea and consistently looked at

13:04

all of these concepts about- the

13:04

real issue here is the exigency

13:10

and the need to get a warrant.

13:10

And in I forget what year White

13:15

was, I think it's 1995.

13:18

The Pennsylvania Supreme Court

13:18

in Commonwealth v. White says,

13:23

"We are looking here now that

13:23

despite the US Supreme Court's

13:27

adoption of this sort of broader

13:27

multi pronged assessment, that

13:31

probable cause alone is going to

13:31

be sufficient to search a car

13:35

because of the lower expectation

13:35

of privacy and because of the

13:39

mobility of the car,"

13:39

Pennsylvania started to diverge.

13:43

And White was really clear in

13:43

focusing on Article One, section

13:46

eight and saying that no, the

13:46

Carroll understanding remains

13:50

true that you need probable

13:50

cause plus exigency. And even if

13:55

sort of the exigencies of the

13:55

situation may cover most

13:59

searches, and most individual

13:59

case by case assessments will

14:03

find an exigency. That doesn't

14:03

mean the doctrine doesn't exist.

14:06

So if the officers knew what car

14:06

they were going to want to

14:09

search, and had that car in

14:09

their possession, then they had

14:13

an obligation to get a warrant,

14:13

simply the fact that it was an

14:16

automobile did not justify a

14:16

search under Article One,

14:19

section eight, I think White was

14:19

pretty clear in that effect. And

14:22

it became clear later too after

14:22

some other cases in which the US

14:26

Supreme Court overturned some

14:26

Fourth Amendment decisions that

14:29

the Pennsylvania Supreme Court

14:29

upheld on article one section

14:32

eight suppression where there

14:32

was no clear exigency. And I

14:35

think that's Pennsylvania v.

14:35

Labron is a good example of that

14:39

in 99, I think.

14:41

And just to tie

14:41

that back into the Carroll

14:43

rationale-

14:44

Sure.

14:44

-if you've got a

14:44

bootlegger at the county line in

14:47

1920, and you fast forward that

14:47

to the 1990s, we're still not at

14:51

a time where there are widely

14:51

available cell phones, there are

14:54

still plenty of places in

14:54

Pennsylvania where finding

14:56

another deputy to go and get a

14:56

warrant or something like that

14:59

is still pretty impracticable,

14:59

or at least could be

15:01

impracticable in the moment. So

15:01

I mean, it does make a lot of

15:04

sense that Carroll kind of

15:04

continues to apply there, via

15:09

White anyway.

15:09

Yeah.

15:11

So at this point,

15:11

we've got sort of that that

15:14

split between what the sort of

15:14

post-Warren Court in Washington

15:20

is saying about the Fourth

15:20

Amendment and what it actually

15:22

is meant to protect.

15:23

Yeah. And I think

15:23

you're right, though that like,

15:26

you know, and this actually gets

15:26

back to what I was almost saying

15:29

during our intro conversation

15:29

about sort of practical

15:33

outcomes, and maybe in some ways

15:33

being an element of legal

15:37

realism here, which is prior to

15:37

our current digital age, you

15:43

know, the last 10, really the

15:43

last 10 years. In most

15:46

instances, it was going to be

15:46

impractical to get a warrant, as

15:51

you were saying, not just in the

15:51

1920s and 30s, but all the way

15:54

through the early 2000s. You

15:54

know, police aren't anticipating

15:57

stopping a car, right, they see

15:57

a traffic violation and then

16:01

uncover something for which they

16:01

had probable cause of contraband

16:04

in the vehicle. They weren't

16:04

anticipating getting a warrant,

16:06

they didn't have the ability to

16:06

call a easily call a magistrate

16:11

or transmit an affidavit of

16:11

probable cause to a magistrate

16:14

in any reasonable time. I mean,

16:14

we didn't have an electronic

16:16

transmission of an affidavit of

16:16

probable cause. It's not like

16:20

they could sit in their car with

16:20

their computer terminal, write

16:23

up a two sentence affidavit and

16:23

transfer it to the magistrate at

16:26

3am. And hence swear it out over

16:26

the phone and the magistrate

16:29

says, "yep, signed, done. Here

16:29

you go." Right. That couldn't

16:33

have happened until very

16:33

recently. So practically

16:36

speaking, you know, even the

16:36

White case, it was very rare,

16:39

where courts would find,

16:39

arguably that there was no, that

16:43

there was no exigency to justify

16:43

the search. So part of the

16:46

reason I think that the law was

16:46

still somewhat left unclear and

16:51

undecided was these practical

16:51

difficulties of defendants

16:56

really raising solid claims to

16:56

challenge the outcome of an

17:02

exigency finding or a search

17:02

below, when police were almost

17:08

always going to be granted it by

17:08

trial courts. So you really

17:11

didn't have this strong divide,

17:11

purely coming to the forefront

17:17

again, until really the 2000s

17:17

when when the justices started

17:21

to see that there was going to

17:21

be a difference in not just the

17:25

protections afforded by PA's

17:25

constitution, but really, in how

17:28

law enforcement can operate. And

17:28

what those, you know, policy

17:33

results can be, despite the

17:33

court and Alexander ultimately

17:36

saying that, you know, policy is

17:36

not the end all be all and does

17:39

not determine how we make

17:39

decisions, even if it does make

17:42

law enforcement slightly more difficult.

17:45

Yeah. And so for

17:45

that period, between, say Labron

17:49

and the case we'll talk about in

17:49

a moment, Gary, really, the

17:52

court is spending a lot more

17:52

time just dickering on the

17:55

particular application of

17:55

exigency to individual

17:59

circumstances. Right?

18:00

Yeah, to some

18:00

degree, although, I think it

18:03

remains confused as to in some

18:03

cases that remain confused as to

18:07

the actual diversion between

18:07

Article One, section eight, and

18:11

the Federal Constitution and the

18:11

Fourth Amendment. So even if

18:15

they were applying Article One,

18:15

section eight prior to Gary, I

18:18

think, yeah, the court was

18:18

really, you know, even if they

18:22

didn't say it expressly having

18:22

to address what is or is not an

18:26

exigency and kind of giving a

18:26

lot of- giving a nod- to the

18:30

fact that in most instances

18:30

exigencies would be found with,

18:33

I think, one exception. You

18:33

know, there was, I think,

18:37

Hernandez in 2007, found that

18:37

this sort of generic danger to

18:43

the police, while a danger to

18:43

the police could be an exigency,

18:46

the idea that there's this, a

18:46

generic public safety, danger

18:50

doesn't always justify an

18:50

exigency. And therefore, if the

18:53

police had the defendant in

18:53

custody, the car was otherwise

18:56

in their possession, they knew

18:56

which vehicle they were going to

18:58

stop, no exigency is established

18:58

simply by asserting an a, you

19:02

know, a hunch of danger, and

19:02

therefore they could search this

19:07

Uhaul that had, I think it was

19:07

marijuana in the back of the

19:10

car, even though, you know, the

19:10

court at the top, at the time,

19:16

was still focusing on Article

19:16

One, section eight, but really

19:18

didn't put a whole lot of effort

19:18

into identifying sort of the

19:24

reasons Article One, section

19:24

eight diverged and more. So

19:27

we're just focusing on the law

19:27

has always been this way in

19:30

Pennsylvania. And we're just

19:30

applying sort of this standard,

19:35

you know, exception to the

19:35

warrant requirement, which is

19:40

going to be pretty broad in

19:40

Pennsylvania with very limited

19:43

areas for defendants to win on

19:43

suppression grounds. And that

19:46

was like one of those limited exceptions.

19:50

So as that sort of

19:50

cleavage starts to become

19:53

apparent, I guess that's the

19:53

thing that changes, right? And

19:56

we end up re-litigating the

19:56

issue in Commonwealth vs. Gary,

20:00

that's 2014 if I'm-

20:01

Yes.

20:02

-that's 2014. And

20:02

I guess just very broadly what

20:06

happened in that case,

20:07

They both basically, both Gary and Alexander deal with weed

20:08

basically the odor of marijuana,

20:12

pulling a car over smelling weed

20:12

and at the time both Gary and

20:17

the case we'll talk about,

20:17

Alexander, you know, dealt with

20:20

police saying, Well, when I

20:20

smell marijuana under the

20:23

precedents of both state and

20:23

federal law, right, marijuana is

20:25

illegal. I therefore have this

20:25

plain smell idea, it gives me

20:29

probable cause that there is

20:29

evidence of, of contraband

20:34

marijuana in the car, and

20:34

therefore I can search. So if I

20:38

recall correctly in in Gary, it

20:38

was a, you know, a similar they

20:42

pulled over police pulled over a

20:42

car for tinted windows. And when

20:47

they pulled over the car, the

20:47

cops asked if there's anything

20:52

in the car they needed to know

20:52

about. And I think Gary said,

20:55

"Yeah, I got some weed in the

20:55

car." And at that point, you

20:58

know, that's all the cop need to

20:58

know about. They searched the

21:01

car, found, I believe, a gun or

21:01

a lot more drugs. I don't

21:05

remember what exactly they

21:05

found. But it was it was a bunch

21:07

of contraband. And the defendant

21:07

Gary moved to suppress. And one

21:12

of the questions, of course,

21:12

was, you know, what was the

21:17

standard by which the officers

21:17

were going to be justified in

21:21

searching the car? Was it

21:21

applying sort of the White

21:24

standard, probable cause plus

21:24

exigency, or did the automobile

21:28

exception under federal law

21:28

really, actually apply in

21:30

Pennsylvania? And simply the

21:30

fact that probable cause alone

21:33

was in existence? Is that enough

21:33

to search the car? And you

21:38

really saw in Gary, a major

21:38

schism amongst the justices on

21:43

the court at the time, you know,

21:43

with a three justice plurality

21:47

and a fourth justice Saylor,

21:47

arguing in kind of wholehearted

21:52

concurrence, but adopting a

21:52

separate concurring opinion. So

21:56

it was three judges Justice

21:56

McCaffrey, I think announcing

22:00

judgment for the court. And you

22:00

know, just as an aside, the

22:04

attorney for Gary was Alan

22:04

Tauber, who is now our Chief-

22:08

Acting Chief Defender, who was

22:08

fighting very hard to avoid this

22:12

and did an excellent job with

22:12

the court convinced obviously,

22:16

you know, Justice Todd, that we

22:16

were very much correct when she

22:21

dissented that the Edmunds

22:21

analysis required, you know,

22:25

applying Article One, section

22:25

eight is a more broad, more

22:28

protective constitutional basis.

22:28

But nonetheless, you get three

22:31

justices deciding that under

22:31

Pennsylvania law, it's actually

22:35

coextensive with the Federal

22:35

Constitution, and that the

22:39

automobile exception applies,

22:39

and they did an Edmunds analysis

22:42

and found no basis to find a

22:42

broader protection and then

22:46

Justice Saylor simply concurring

22:46

in the result, right, explaining

22:51

that he agrees with the

22:51

majority, but has some hesitancy

22:54

about sort of the general bright

22:54

line rules for law enforcement

22:58

and the aspect of imposing

22:58

bright line rules as opposed to

23:00

more discretionary legal

23:00

determinations. And then Justice

23:03

Todd writing a scathing dissent,

23:03

saying this is absurd.

23:07

Pennsylvania has a long history

23:07

of being a broader protective

23:10

Commonwealth, article one

23:10

section 8, and even doing the

23:14

Edmunds analysis leads us to the

23:14

conclusion that the Carroll

23:18

doctrine, the probable cause

23:18

plus exigency, still

23:20

fundamentally applies in

23:20

Pennsylvania, as an adequate and

23:23

independent state constitutional

23:23

provision, fourth amendment be

23:26

damned, you know, in that

23:26

respect, and that case, then

23:30

sort of changed the game in

23:30

Pennsylvania. Police took that

23:35

decision to give a, you know,

23:35

and prosecutors a wholehearted

23:40

endorsement of if police possess

23:40

probable cause, there's no need

23:45

to determine exigency, you can

23:45

conduct a search on the street.

23:48

That's that's kind of in a

23:48

nutshell, I think what happened

23:50

in Gary and the conclusion that was reached.

23:52

Yep. And a couple

23:52

just quick aspects that I'd kind

23:55

of like to drill down upon-

23:56

Yeah.

23:57

-the lead opinion sort of goes through the precedent and itself seems to

23:59

acknowledge that hey, White did

24:02

say this. But hey, there was no

24:02

Edmunds analysis. So, we're sort

24:08

of free to write on a blank

24:08

slate here. One thing that was

24:11

shocking to me was the lack of

24:11

any meaningful discussion of

24:17

stare decisis as it pertains to

24:17

to White, which kind of will

24:21

double back in Alexander, but I

24:21

just I just wonder if you, I'm

24:24

sure that you notice that. Don't

24:24

you think that seems a little

24:27

curious?

24:28

Yeah, I mean, you

24:28

raise kind of two issues. One,

24:30

is that, right, there's the

24:30

discussion in Gary about White

24:34

not engaging in an Edmunds

24:34

analysis. You know, and and it's

24:38

criticism of White for not

24:38

engaging in Edmunds analysis is

24:43

also somewhat interesting in the

24:43

sense that the plurality

24:48

opinion- Justice McCafferey's

24:48

opinion believed that if the

24:51

Supreme Court did not engage in

24:51

a full Edmunds analysis that

24:56

that somehow resulted in the

24:56

opinion not being sufficiently

25:00

precedential to justify a

25:00

conclusion or a holding. It may

25:06

be a point of criticism as to

25:06

whether the court sufficiently

25:11

addressed the question and upon

25:11

review, you know, I'm going to

25:15

stare decisis as to whether the

25:15

decision was sufficiently

25:19

addressing the issue but it

25:19

doesn't undermine the conclusive

25:24

or precedential importance of

25:24

the particular holding, even

25:28

though you may be critical of

25:28

the means by which the court got

25:31

to that particular outcome. And

25:31

I think yeah, the fact that the

25:35

plurality in Gary does not

25:35

address stare decisis and say

25:40

they discount White for the

25:40

purpose that they did not

25:43

conduct an Edmunds and for for

25:43

those who don't remember know

25:47

what the Edmunds analysis is,

25:47

there's sort of the basic idea

25:51

that if Pennsylvania's

25:51

constitution is going to be

25:53

broader, the party making the

25:53

argument for broader protections

25:57

has to look at and examine, and

25:57

the court for that matter, the,

26:01

you know, the text of

26:01

Pennsylvania's constitutional

26:03

provision, the history of

26:03

decisions and things that

26:07

interpret that constitutional

26:07

provision, the decisions from

26:10

other states regarding whether

26:10

to diverge from the Federal

26:13

Constitution and the decisions

26:13

of sister states. And then

26:16

finally, the policy aspects of

26:16

whether there's any Pennsylvania

26:18

specific policy that justifies

26:18

diversion from the Federal

26:21

Constitutional floor and create

26:21

higher protections. And what

26:26

Gary doesn't do then is then

26:26

they just discount White without

26:30

saying, well, it's discounted,

26:30

but it's still precedential.

26:33

They ignore that second part,

26:33

which the dissent takes them to

26:36

task for a little bit, and

26:36

really comes to the forefront in

26:40

Alexander that says Gary really

26:40

ignored stare decisis in and of

26:44

itself. It discounted the prior

26:44

opinions and tried to alter the

26:47

outcomes to some degree or

26:47

weaken them. But it doesn't

26:49

discount the fact that those

26:49

opinions in White and Labron

26:53

reached very- and Hernandez, for

26:53

instance, reached very clear

26:56

precedential conclusions that

26:56

the article one section eight

26:59

was indeed, broader and more

26:59

protective. And Gary itself

27:04

simply ignored that precedential

27:04

value. And you know, and that

27:08

was a concern to the court, the

27:08

majority of the court now, in

27:11

Alexander.

27:13

And I just want to

27:13

just highlight the two secondary

27:16

opinions a little bit. First,

27:16

Justice Saylor's concurrence,

27:19

although it does say he joined

27:19

the holding, it doesn't say a

27:22

lot else. And it really just

27:22

says, I mean, it's almost an

27:26

aside, right? You have some

27:26

language about, hey, we seem to

27:30

be adopting bright line rules.

27:31

Yeah so what do

27:31

you take from that right, like

27:34

he takes this bright line? Yeah,

27:34

he says, Look, I'm I'm kind of

27:37

tired of this bright line rule

27:37

practice of we like bright line

27:42

rules, when they, you know, make

27:42

law enforcement jobs easier, and

27:45

we don't like them when it makes

27:45

them harder. And I'm tired of

27:48

that inconsistency, the end.

27:48

Right. That's all he says. And

27:52

so, you know, what, do you take

27:52

from that concurrence? You know,

27:55

in the sense of why not join the

27:55

lead opinion, and just sign your

27:59

name to the lead opinions? You

27:59

have four justices in the

28:02

majority, versus adopting this

28:02

concurrence that really says

28:06

nothing other than just

28:06

expressing sort of an aside and

28:10

concurring in the result?

28:11

Something of a

28:11

Cheshire Cat opinion. And-

28:13

Yeah.

28:14

I can't imagine

28:14

being in Justice McCaffrey's

28:16

chambers, and just picking that

28:16

concurring opinion up and

28:19

thinking, Oh, gee, what does

28:19

this mean for all this work

28:23

we've just done? But so and I'd

28:23

like to just highlight the

28:28

dissent, which apart from doing

28:28

some really good historical

28:32

work, which may have been partly

28:32

done by Attorney Tauber's brief,

28:35

really drilled down on two

28:35

issues that you had talked about

28:38

earlier. Number one, the

28:38

increased practicality of

28:42

getting a warrant, as compared

28:42

to boss hog on the county line

28:47

in 1920. Right? Suddenly, we

28:47

have cell phones, we have the

28:51

internet, we have much more

28:51

advanced communication services.

28:54

And then something which I

28:54

thought was particularly

28:57

insightful, the expectations of

28:57

privacy in a vehicle seem to be

29:01

increased, as compared to 1976

29:01

when Justice Powell decides that

29:07

we don't have as much to lose in

29:07

an automobile, in an automobile.

29:12

Yeah, I mean, I think that's interesting. It's, it's, you know, a good

29:13

observation, because I think the

29:17

first one is, is more obvious,

29:17

right? We kind of know that the

29:22

technological change and the

29:22

ability to get a warrant is

29:24

different now than where it was,

29:24

you know, even 10 years ago, let

29:28

alone as your Boss Hogg example.

29:28

But the, you know, I think the

29:32

second point you raise is just

29:32

much is more interesting to me

29:36

about sort of questioning the US

29:36

Supreme Court's sort-of

29:40

rationale about lower

29:40

expectations of privacy in

29:44

vehicles. Generally speaking,

29:44

people, while while we may have

29:49

somewhat of a belief that things

29:49

we leave on the seat of our

29:54

cars, for instance, may not be

29:54

as secure or private as things

29:58

we have in our house. But

29:58

nobody, nobody really believes

30:02

that things left secreted in

30:02

your car or hidden in your car,

30:07

are things that you have any

30:07

less of an interest in than

30:10

things in your house. Right? I

30:10

mean, cars in the 20s, 30s, and

30:14

40s were not particularly secure

30:14

institutions. But today, you

30:19

really have people cherish their

30:19

vehicles, and people use them

30:24

for all sorts of very intimate

30:24

things. Right? Especially, you

30:30

know, if you're talking about a

30:30

motorhome or a van, I mean,

30:34

people have sex in their cars,

30:34

it's not uncommon, right?

30:37

There's a lot of, and people can

30:37

take pretty solid means of

30:41

securing the outside of their

30:41

vehicle from observation and

30:46

view and can be parked legally.

30:46

And these sorts of things, you

30:49

know, are not generally going to

30:49

be prohibited, you know, it's

30:54

that people have these

30:54

experiences, and people believe

30:56

that they have a lot of interest

30:56

in their cars. So to say that

31:00

you no longer have a privacy

31:00

expectation in your vehicle or a

31:03

substantially reduced such that

31:03

law enforcement can just jump

31:07

sort of jump the gun and make

31:07

sort of the independent

31:10

determination of whether they

31:10

have probable cause or not,

31:13

without putting them to the task

31:13

of an independent arbiter, I

31:16

think really does undermine how

31:16

Americans, you know, sort of

31:20

cherish their their possessions

31:20

and their cars, especially in

31:24

you know, the 20th, the 21st

31:24

centuries, people do believe all

31:30

sorts of things in and around

31:30

their vehicles. And I think to

31:33

minimize that is, is concerning.

31:33

And I think that Todd really

31:37

picks up on that in a way that

31:37

we haven't heard a lot come from

31:43

from courts recently.

31:44

And aside from

31:44

noting that there's plenty of

31:47

examples of spaces and- the

31:47

trunk has a lock, there are the

31:50

glove boxes that have- she

31:50

refers to special keys- that

31:53

open a glove box-

31:54

Right. Right.

31:55

One thing I

31:55

thought was really interesting

31:57

was she sort of dug up a poll

31:57

that had been administered

32:01

about, hey, general population,

32:01

do you think that police should

32:06

be able to, you know, search

32:06

your vehicle based just on

32:10

probable cause, you know, the

32:10

smell of marijuana or something?

32:12

And I think it was a whopping

32:12

almost 60% of people said, Well,

32:16

you know, heck, no, we don't, we

32:16

don't want that.

32:18

Yeah.

32:19

You know, I don't think that I've ever seen anything like that in an

32:21

appellate court opinion before

32:24

and probably because, you know,

32:24

the court would like to be the

32:27

one to decide what's reasonable,

32:27

rather than to let Gallop do it.

32:30

But I thought it was a really

32:30

interesting way of checking them

32:32

for the underlying assumption

32:32

that hey, car, you might as well

32:36

be wandering on the road or something.

32:37

Right. And I

32:37

that's not I think that's

32:40

totally right. But I'm trying to

32:40

remember. And it's striking me

32:44

that I think Pennsylvania,

32:44

Supreme Court in Pennsylvania,

32:48

you know, had found sort of that

32:48

PA's constitution is more

32:51

broadly protective, of sort of

32:51

intrusions into garbage than is

32:56

the Federal Constitution, if I'm

32:56

remembering correctly. And I

32:59

recall that if you asked in the

32:59

Supreme Court, the US Supreme

33:03

Court was not moved by that idea

33:03

that sort of the public wouldn't

33:06

like it, right sort of concept.

33:06

Like, if you asked any person on

33:10

the street, if they thought it

33:10

was fair, that the police could

33:13

just come up to their trash and

33:13

dig through it for any sort of

33:16

piece of tidbit of information

33:16

of their lives. They'd be like,

33:19

That's absurd. You're gonna dig

33:19

through my trash and put

33:21

together a puzzle of my life

33:21

that seems wrong based on no

33:24

suspicion at all. And

33:24

Pennsylvania's like, No, you

33:27

know, people still people

33:27

wouldn't like it. Right? There's

33:31

this idea of what is within sort

33:31

of the public mindset that might

33:35

influence sort of the privacy

33:35

interests and expectations

33:38

somewhat different than the

33:38

federal courts have adopted. And

33:41

I feel like there's a- inherent

33:41

in sort of the idea that

33:46

Pennsylvania's Constitution

33:46

protects privacy, like it's a

33:49

personal right, not about, you

33:49

know, this pure deterrence

33:52

concept. I think there's

33:52

something innate about thinking,

33:56

what would the public want? And

33:56

what would they believe, as far

34:00

as their reasonable expectations

34:00

and how those play out in areas

34:04

that might diverge federally and

34:04

state and I think she did a good

34:07

job in Gary's dissent, really

34:07

running through some of those

34:11

things. I mean, in addition to

34:11

all of this stuff, she I think

34:13

she talks about, like, the data

34:13

privacy that now cars contain,

34:18

that could be, you know, like

34:18

the black box and other things

34:21

that the vehicle kind of

34:21

monitors your location and can,

34:24

you know, sense who's whether

34:24

somebody's sitting in the seat

34:27

and keeps all of that record,

34:27

you know, who's in what, whether

34:31

somebody is in the passenger

34:31

seat or driver's seat, all that

34:33

sort of sensitive information.

34:35

Yep. So Gary's in

34:35

2014. And that year and years

34:40

hence, we get a very, very

34:40

different Court.

34:43

To say the least.

34:45

There are justices

34:45

that retire there are justices

34:47

that perhaps little more

34:47

forcibly retire and they're

34:51

replaced by Justices Donohue,

34:51

Dougherty, Wecht, and Mundy. So

34:56

we've got basically a new

34:56

contingent of four justices,

34:59

which is to say, potentially a

34:59

brand new court. So we talked a

35:03

little bit about the facts of

35:03

Alexander and it's basically the

35:05

same kind of case. An officer

35:05

gets probable cause based on

35:08

marijuana, and then does the

35:08

search, obviously relying on

35:12

Gary in this instance. So how

35:12

did your office decide, "Hey,

35:15

maybe it's time to take a run at

35:15

overruling Gary,"?

35:18

Well, I mean,

35:18

frankly, we wanted to take a run

35:20

at overruling Gary from the

35:20

moment it came out, you know,

35:23

and we thought there was good

35:23

arguments to do that. Because

35:27

early on even immediately after

35:27

we saw that it was a it wasn't a

35:31

four justice majority opinion.

35:31

So there was still room.

35:35

However, obviously, we recognize

35:35

that the court at the time, you

35:39

know, in 2014, wasn't going to

35:39

change immediately. But pretty

35:43

shortly after we see a different

35:43

court, and as soon as we saw a

35:47

different court where all three

35:47

of the majority justices were no

35:53

longer on the court. Right, we

35:53

saw that. Well, you know, this

35:58

is a perfect opportunity to take

35:58

a run at Gary. So early on, we

36:02

started looking for cases that

36:02

had a similar issue that was

36:07

going to raise a probable cause

36:07

and officers searched, and we

36:10

were telling our trial attorneys

36:10

to preserve them, which is

36:13

exactly what we did. In this

36:13

case, you know, and I will throw

36:17

out that one of the the attorney

36:17

who primarily worked on the

36:21

case, Len Sazonov, from our

36:21

office, and he was lead counsel

36:25

on the Alexander case, he was

36:25

pushing this from the beginning,

36:28

and I was more on the sidelines

36:28

at the time, but our office was

36:31

fully on board. I was not yet

36:31

Chief of Appeals, I was still

36:35

just an appellate attorney in

36:35

the unit. And so we really

36:38

thought this is a great

36:38

opportunity. We told all of our

36:40

attorneys to pursue it. And the

36:40

first case that came about was

36:43

Alexander. And, you know, Len

36:43

Sazonov really then just kind of

36:48

ran with it and pursued it

36:48

preserving the the issue

36:52

sufficiently by saying, look,

36:52

you know, we're simply trying to

36:55

overrule Gary, we don't need to

36:55

say much more than that. Here is

36:58

our grounds. And we'll go from

36:58

there. And so the whole thing

37:01

was strategic going up, because

37:01

we were hoping that a changing

37:04

court would would give us a

37:04

potential different outcome. You

37:07

know, when we have the

37:07

dissenting justices remaining

37:09

and brand brand new justices or

37:09

three brand new justices to to

37:13

try to persuade to rule the

37:13

other way.

37:16

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

37:18

Yeah, that's right. Exactly!

37:20

So okay, so what

37:20

obviously you don't just say,

37:23

hey, Justices, as you know, you

37:23

ruled this way before. There's

37:26

new justices now. How do you

37:26

approach the issue of stare

37:30

decisis. And how do you think

37:30

that played out with the court?

37:34

Yeah. So I mean, I

37:34

think I think Justice Donohue's

37:37

opinion kind of reiterates in

37:37

many ways, some of the things

37:41

that were stated in Sazonov's

37:41

brief, our brief, to the Court.

37:46

You know, and similar with the

37:46

amicus brief, really focusing on

37:50

kind of two main areas, one sort

37:50

of reaffirming the Edmunds

37:55

analysis of Todd's dissent, but

37:55

too kind of focusing- two

37:59

separate things. One is you

37:59

mentioned the stare decisis

38:01

quality of both Gary, and

38:01

frankly, the opinions before

38:07

Gary, you know, you're talking

38:07

White, Hernandez, Labron and

38:10

these sorts of cases that

38:10

establish in a broader Article

38:15

One, Section 8, with majority

38:15

opinions. And then, you know,

38:21

looking at sort of the, the idea

38:21

that the justifications that,

38:27

you know, the majority in Gary

38:27

looked at, and obviously some of

38:29

the justices would be thinking

38:29

about as to the reasons for the

38:32

automobile exception really

38:32

don't jive or aren't justified

38:35

in a way that the the court, the

38:35

US Supreme Court seemed to

38:39

recognize for the vehicle

38:39

exception, like, for instance,

38:43

the intrusion of holding a car

38:43

to get a warrant versus the

38:48

search immediately are actually

38:48

identical, right, knocking down

38:52

that privacy aspect is something

38:52

that we wanted to challenge or

38:56

that sort of inherent,

38:56

supposedly parallel, that they

39:01

are equally intrusive, is- we

39:01

think was flawed and wanted to

39:04

focus on that in addition to the

39:04

stare decisis question, and I

39:08

can go into some of the reasons

39:08

we talked about stare decisis as

39:11

to why that was, I think so

39:11

important to brief for the court

39:15

and how it affected the outcome.

39:17

Yeah, you know, because I think, obviously, if you're you're sitting in your

39:19

office, and you know, you can

39:21

almost anticipate what the dissents are going to say it's going to be you know, the ink is

39:23

not dry on on Gary.

39:26

Right.

39:26

And we've we've

39:26

had a sea change in justices, so

39:30

you know, what gives guys? And

39:30

that's kind of what comes out to

39:33

some degree or another in the dissents here.

39:34

Yeah.

39:35

But yeah, if you

39:35

could just sort of talk about

39:37

how the stare decisis issue

39:37

really helps to form the the

39:42

court's- maybe form the majority.

39:44

Yeah, so one,

39:44

there's like the US Supreme

39:47

Court and actually, recently,

39:47

right, we've been talking a lot

39:50

about stare decisis in the US

39:50

Supreme Court, you know, with

39:54

when it's appropriate overrule a

39:54

decision and when it's not, and

39:57

there's a number of different

39:57

considerations at issue, you

40:00

know, sort of the the

40:00

workability of a rule, the long

40:03

term adherence to sustainability

40:03

of a particular legal rule,

40:08

these sorts of things. But also,

40:08

you know, when when

40:11

constitutional questions are at

40:11

stake, there's really ultimately

40:15

decision about, you know, stare

40:15

decisis, especially when it's a

40:20

very recent opinion. Sometimes

40:20

you don't simply pursue

40:25

enforcement of a larger decision

40:25

that may clearly be wrong simply

40:29

for the sake of, you know,

40:29

consistency. If it's very clear

40:34

that that decision was

40:34

incorrect, but more, I think, to

40:37

a sort of process point for the

40:37

sanctity of precedent and law,

40:46

you know, really one of the big

40:46

tactics was looking at the fact

40:50

that Gary itself was not

40:50

faithful to stare decisis.

40:53

Right? And I think that's, that

40:53

is kind of key to pointing out

40:57

to the court, which, you know,

40:57

Justice Donohue kind of picked

41:01

up on and talked about that,

41:01

which is, you know, that Gary,

41:08

tried to undermine these prior

41:08

cases on some of their

41:11

reasoning, but didn't even come

41:11

to grips or grapple with the

41:14

fact that, you know, overruling

41:14

two decades of precedent was

41:18

really what they were doing in

41:18

Gary, without giving sort of the

41:23

even even a, you know, a

41:23

principled nod to the rule of

41:28

stare decisis in Pennsylvania,

41:28

which raised some serious

41:31

questions as to the, you know, I

41:31

guess, methodological or legal

41:35

validity of that of that

41:35

decision, which I think played a

41:38

role in saying, look, Gary

41:38

overruled these cases, but

41:41

didn't even address what was the

41:41

real line of precedent in

41:45

Pennsylvania, and Alexander kind

41:45

of came back to this decision

41:49

overruling Gary is actually much

41:49

more in line with Pennsylvania

41:52

precedent, and being faithful to

41:52

the idea of precedent and

41:57

decision making in the state

41:57

than Gary was. And two, Gary

42:02

wasn't a precedential opinion.

42:02

That's the argument, right,

42:05

Justice Saylor kind of disagrees

42:05

with that. But I think it's hard

42:09

to quibble with the fact that

42:09

Saylor very clearly does not

42:13

actually sign his name to the

42:13

majority. And he addresses it in

42:17

the concurrence, giving the

42:17

opinion announcing a judgment

42:20

for the court, as opposed to

42:20

simply an opinion, the majority

42:23

opinion which, you know, Saylor

42:23

had the ability to do so if he

42:27

if he thought that it was worth

42:27

solidifying that sort of

42:30

rejection of prior Pennsylvania

42:30

law, but he didn't, for whatever

42:34

reasons, and I still come back

42:34

to that being a very interesting

42:38

question as to what was his

42:38

mindset at the time for not

42:43

joining the opinion and where

42:43

those differences lie. But, you

42:47

know, regardless, I think,

42:47

focusing on, which we did, on

42:51

that sort of question about what

42:51

is truly the most consistent

42:57

adherence to Pennsylvania

42:57

precedent, the ruling that we

43:01

asked for in Alexander, which we

43:01

ultimately got, or what Gary

43:05

did, and therefore adhering to

43:05

that, and ultimately the

43:08

conclusion fell down on no

43:08

adhering to sort of a much

43:12

longer line of Pennsylvania

43:12

precedent is more consistent

43:16

with a stare decisis practice,

43:16

than adhering to Gary simply

43:22

because of its recency bias.

43:24

Yeah. And I think that's an excellent point, right? Because I think someone

43:26

could definitely read Alexander

43:30

in isolation and say, oh,

43:30

they're responding to judicial

43:33

activism with judicial activism.

43:33

But I think your point that

43:37

well, what we're really trying

43:37

to do is, you know, when you

43:40

have judicial activism, like you

43:40

had in in Gary, well, how do

43:44

you? How do you correct that if

43:44

you if you do, and I think, to

43:49

your point, the endeavor is now

43:49

Well, well, what sort of

43:53

holistically fits and what's an

43:53

outlier? Right.

43:56

Yeah, I mean, I think that's I think that's exactly right. And I think

43:58

that's important to think about

44:00

in in sort of law. More

44:00

generally, when you're

44:04

interpreting decisions like it's

44:04

going to be, it's always going

44:08

to be a task to sort of

44:08

interpret, you know, a line of

44:13

precedent in Pennsylvania,

44:13

especially when there's some

44:15

lack of clarity and trying to

44:15

see a general through line

44:18

there. And you're always going

44:18

to want to look at that and say,

44:21

what's the direction in which

44:21

Pennsylvania law traveled? And

44:24

what's sort of the overarching

44:24

principles that have been

44:26

established by various holdings?

44:26

And are those precedential? And

44:31

if you have something that

44:31

diverges from that, even from

44:33

the Supreme Court, I think

44:33

there's going to be a real

44:35

question of did that decision,

44:35

actually, was that decision

44:40

actually faithful to the concept

44:40

of stare decisis, did it examine

44:44

the reasons and and sort of

44:44

elaborate on those as to why it

44:50

was rejecting that line of

44:50

precedent, and saying it's worth

44:54

rejecting that precedent? And

44:54

for all these reasons,

44:56

consistent with sort of the

44:56

factors our courts employ in

45:00

stare decisis questions, versus

45:00

simply saying, you know, we

45:04

think the policy is sufficiently

45:04

changed, we've reached this

45:06

independent conclusion. Those

45:06

other cases are either

45:09

distinguished or overruled,

45:09

without really giving much, much

45:13

weight to them, I think is, you

45:13

know, there some level of

45:17

disingenuousness to some of

45:17

those rulings. Now, of course,

45:23

right, you could have long lines

45:23

of precedent that may be eroded

45:28

by the, you know, essentially

45:28

progress of time, you know, the

45:32

long march of progress might

45:32

erode a long line of precedents,

45:36

I mean, separate but equal at

45:36

almost 100 years of precedent,

45:38

right? So like, you have this

45:38

this concept that is

45:42

fundamentally overruled by the

45:42

progress of time. And but I

45:46

think the to grapple with that

45:46

is to say, you know, is to

45:51

really have to be clear about

45:51

what you are doing with respect

45:55

to finally overturning what is

45:55

inherently a wrong result, as

46:01

opposed to trying to sort of

46:01

puzzle your way out, or what I

46:07

think the Gary majority did,

46:07

which is simply tried to

46:11

minimize the value of the

46:11

reasoning in those prior

46:15

opinions, as opposed to saying,

46:15

either they're simply wrong

46:18

because of some overarching

46:18

clear policy concern, which is

46:22

fundamentally important, or are

46:22

not, you know, didn't actually

46:27

decide the question at all. And

46:27

this is a brand new question.

46:29

And I think neither of those

46:29

were present in Gary. So I think

46:33

there was a little bit of

46:33

ignoring that what needs to

46:37

happen before you start going

46:37

into thinking about overruling

46:41

cases. And I think Alexander

46:41

spent a lot more time being

46:44

faithful to that line of those

46:44

lines of concern. That said, you

46:50

know, it's always going to be

46:50

hard to decide what cases are

46:54

worthy of overruling and what

46:54

aren't? And it's going to be a

46:57

tough principle to grapple with

46:57

when you think a decision is

47:00

fundamentally wrong. But also,

47:00

you know, to adhere to sort of

47:03

the basic ideas of stare

47:03

decisis, you were seeing that a

47:06

lot with Ramos and then I'm

47:06

forgetting the case that didn't

47:09

hold Ramos retro- oh, Venoy.

47:11

Right.

47:12

The new recent

47:12

decision in Venoy, which, you

47:16

know, dealt with the idea of

47:16

precedent and retroactivity,

47:19

and, you know, weirdly, the

47:19

throwaway line sort of overruled

47:25

an aspect of TV lane, you know,

47:25

is, you know, a 40 years of

47:30

precedent talk that courts have

47:30

routinely sort of described as a

47:34

clear rule and, you know, in one

47:34

or two lines sort of eliminated

47:38

it and kicked it back to the

47:38

dustbin of history. And so

47:41

there's, there's lots of fights

47:41

right now on on what it means to

47:46

adhere to stare decisis. And

47:46

I'm, I'm fascinated by it. And

47:49

I'm no stare decisis scholar at

47:49

all, and there are many people

47:53

much smarter than me, who have

47:53

thought much in much more

47:56

detail, you know, I'm sure I'm

47:56

sure Will Baude has a has a lot

47:59

to say about that.

48:02

So let me just

48:02

back up. The essential reasoning

48:05

of the court on the substance

48:05

is, "Well, hey, you know,

48:08

Justice Todd was right," and I

48:08

believe they actually

48:11

incorporate her dissent by by

48:11

reference before, you know,

48:14

offering a little more

48:14

commentary. But I guess the the

48:17

crux of it is that we are back

48:17

to the pre-Gary rule under White

48:21

and those cases, which is to say

48:21

that the Carroll rule. So what

48:25

are the implications of

48:25

Alexander? I know, personally,

48:28

it's led to a lot of dismissals

48:28

in the short term where police

48:31

thought they could rely on Gary.

48:31

But hey, that's not happening

48:34

now. But what does it mean for I

48:34

guess, Article One, section

48:38

eight broadly and privacy rights

48:38

broadly? And then in the area of

48:42

automobile searches specifically?

48:44

Yeah, I mean, I

48:44

think I think the implications

48:47

of it are going to be probably-

48:47

are big right now, with respect

48:52

to privacy rights, generally in

48:52

Pennsylvania. I don't know if it

48:57

has much more sweeping

48:57

application, than the sort of

49:00

the general trend of the

49:00

Pennsylvania Supreme Court over

49:04

the last, you know, 30 years

49:04

anyway, which is really sort of

49:08

looking at the independent

49:08

privacy right as sufficiently

49:11

broader, you know, and

49:11

significantly broader than the

49:15

Fourth Amendment. And it's just

49:15

going to be a question of, to

49:17

what things that gets applied

49:17

that haven't been applied

49:21

before. I mean, we already know

49:21

like, the particularity

49:23

requirement of the Fourth

49:23

Amendment is broader in

49:26

Pennsylvania. And that's at

49:26

issue in cases in front of the

49:29

Supreme Court right now, not

49:29

simply about whether it is we

49:33

know it is it's about how it

49:33

gets applied in a more broader

49:36

capacity. And so I don't think

49:36

there's really anything that's

49:40

unique about Alexander in the

49:40

nature of expanding privacy

49:44

protections generally, because I

49:44

think we're going to continue to

49:48

see the court apply those

49:48

protections in various Fourth

49:52

Amendment areas, and search and

49:52

seizure areas in ways that we're

49:56

not currently anticipating. But

49:56

we'll we'll continue to sort of

49:59

follow that general rubric. As

49:59

far as more specifically for the

50:05

implications. I think that's

50:05

where you're going to see a lot,

50:08

a lot bigger sort of changes and

50:08

a lot of litigation that I think

50:14

will result from the Alexander

50:14

decision. And the changes are

50:18

really two things, right? One, I

50:18

think you're going to see,

50:22

obviously, a lot fewer car

50:22

searches, the police are going

50:25

to search vehicles much less.

50:25

And I think that's not just

50:30

because of the law that's put

50:30

into place because like,

50:33

technically speaking, if the

50:33

officers had probable cause in

50:36

each of these instances and

50:36

warrants were otherwise could be

50:39

available, like officers will

50:39

pursue them. But what I think

50:43

Alexander is ultimately about,

50:43

at least in practice, right, is

50:47

the idea between who, and this

50:47

applies in a bunch of areas, who

50:51

gets to decide when probable

50:51

cause exists, do we give the

50:56

discretion to the police to make

50:56

the decision? Or is it the sort

51:00

of independent magistrate or

51:00

arbiter who is quote, "not in

51:04

the Competitive Enterprise of

51:04

ferreting out crime"? Right, the

51:07

concept of thinking like, who

51:07

makes better decisions, the cop

51:12

who wants to search the car or

51:12

the the magistrate? And where I

51:17

think the big shift comes in

51:17

with Alexander's, we're putting

51:21

the onus back on the magistrate

51:21

instead of the cop, because I

51:25

think, statistics and anyone who

51:25

practices law, right, and

51:30

frankly, anybody who's ever

51:30

experienced a car stop will kind

51:33

of know this intrinsically, is

51:33

that the quality of a police

51:38

officer's probable cause

51:38

determination is likely going to

51:43

One, their job;

51:43

Two, who the person is sitting

51:48

in the driver's seat or

51:48

passenger seat? Are they a kid?

51:50

Are they an adult? Are they

51:50

black? Or the white? Are they

51:53

Hispanic? Are they a man or

51:53

woman? Right? Those things are

51:56

going to affect the quality of

51:56

that officer's decision making

51:59

either explicitly, you know,

51:59

intentional racism, sexism, or

52:03

just saying or implicitly,

52:03

right, there's racial biases to

52:07

think that something might look

52:07

suspicious that a black person

52:11

does that a white person

52:11

wouldn't. Right? Those things

52:14

are, I think, inherent in the

52:14

idea of human decision making.

52:19

And the officer obviously wants

52:19

to conduct the search, because

52:22

why not? Right, maybe they have

52:22

a hunch, there's stuff in the

52:24

car, and it's a lot easier to

52:24

just say screw it, I'm going to

52:28

search the car. So if I find

52:28

something, I can justify it

52:31

later and say, you know, furtive

52:31

movements in the hand under the

52:34

car seat, or I saw, you know,

52:34

something sticking out from the

52:38

passenger seat, etc. And those

52:38

things are hard to prove

52:41

otherwise, that they did or

52:41

didn't exist, whereas the

52:43

magistrate you have to already

52:43

put all those facts in and the

52:46

magistrate's not connected for

52:46

the same purpose, and they're

52:48

gonna have a easier time

52:48

determining whether this is real

52:52

or not. And you're going to make

52:52

the cop say, am I going to go

52:56

through the efforts? Because is

52:56

my probable cause actually

52:58

really good? And do I think I'm going to find something really criminal? Or is it really a

53:00

waste of time, because I'm on a fishing expedition. So I think

53:02

this really does change the

53:07

officer's incentives to decide

53:07

whether probable cause exists

53:11

and forces them to have a better

53:11

quality of probable cause. And I

53:16

think that's what we're going to

53:16

change, at least on the

53:18

practical side, that officers

53:18

are going to be much more

53:20

hesitant to think about whether

53:20

probable cause exists, and

53:24

they're going to be much more

53:24

scrutinizing about the details.

53:27

The second aspect legal is the

53:27

whole debate about well, what

53:30

the hell is an exigency now?

53:30

Right? Like, that's going to be

53:33

the hard part. That's going to

53:33

be the real question that I

53:36

think is going to dictate much

53:36

of the litigation moving forward

53:39

for the next couple years, is,

53:39

it's late at night. It's a small

53:43

county, the magistrate's 100

53:43

miles away, you know, whatever

53:46

it is, right. They might be

53:46

asleep, I'm gonna have trouble

53:49

reaching them. I'm a solo

53:49

officer, I there's only like two

53:52

other cops around I can't be

53:52

delayed for hours waiting for

53:55

the warrant to come back. I'm

53:55

just going to search the car is

53:57

that an exigency? Is the danger

53:57

on pulling somebody over the

54:00

side of the highway and sitting

54:00

there for two hours is the

54:03

danger potential injury from a

54:03

car on the side of the turnpike

54:07

or highway? Is that going to be

54:07

sufficient to justify exigency?

54:10

Will the timeframes be dependent

54:10

upon exactly where the location

54:13

of the car is, is the car

54:13

lawfully parked/not lawfully

54:16

parked, these questions are

54:16

going to be litigated ad nauseum

54:20

in our trial courts, I think, to

54:20

determine how hard or how not

54:25

hard It might be to obtain a

54:25

warrant and what the timeframes

54:28

are because there's not this

54:28

isn't a bright line rule. Right,

54:30

as the court clearly said, this

54:30

is going to be case by case. So

54:34

it's going to be a lot of

54:34

litigation. And I think one of

54:37

the biggest values of this is

54:37

not so much the litigation going

54:39

forward but the officers making

54:39

those initial practical

54:42

judgments of quote is for a

54:42

really thinking like in the

54:45

officer said, quote, "is it

54:45

worth my time?" Right?

54:48

Yeah. Well, that's

54:48

just an excellent summary of

54:51

where this is going. And I gotta

54:51

tell you that ferreting out

54:53

crime quote is one of my top 10

54:53

in the history of court, so-

54:57

Absolutely!

54:59

Aaron, thank you

54:59

so much for joining us today on

55:02

The Standard of Review.

55:02

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55:07

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