Commonwealth v. Dunnavant

• Decision Date: 29 December 2014
• Docket Number: No. 18 WAP 2013,18 WAP 2013
• Citation: 107 A.3d 29 (Mem)
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Gerald M. DUNNAVANT, Appellee.

107 A.3d 29 (Mem)

COMMONWEALTH of Pennsylvania, Appellant

v.Gerald M. DUNNAVANT, Appellee.

No. 18 WAP 2013

Supreme Court of Pennsylvania.

Argued April 8, 2014.

Decided Dec. 29, 2014.

Cynthia Ann Gilkey, Esq., Mary Ann Odem, Esq., Mercer County District Attorney's

Office, for Commonwealth of Pennsylvania.

Charles F. Gilchrest, Esq., Sharon, for Gerald M. Dunnavant.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ.

ORDER

PER CURIAM.

AND NOW, this 29th day of December, 2014, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Justice McCAFFERY did not participate in the decision of this case.

Justice SAYLOR files an opinion in support of affirmance in which Justices BAER and TODD join.

Justice TODD files an opinion in support of affirmance in which Justice BAER joins.

Chief Justice CASTILLE files an opinion in support of reversal in which Justices EAKIN and STEVENS join.

Justice STEVENS files an opinion in support of reversal.

Justice SAYLOR, in support of affirmance.

We would affirm the Superior Court's order, as we would find that, under this Court's precedent, Appellee was entitled to suppression of the videotape surreptitiously created within his home.

In our view, the decision by this Court that bears most directly on the present case is Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), which granted suppression where a confidential informant secretly audiotaped the events inside the defendant's home.¹ The Justices favoring reversal interpret Brion as emphasizing the impermissibility of intentional police conduct in sending a confidential informant into a suspect's home to record events that transpire inside. See Opinion in Support of Reversal, at 49–50. Although the Brion Court highlighted such conduct, the decision's central holding was predicated on the distinction between the privacy inherent in one's home and the lack of privacy attendant to locations outside the home. Indeed, it is on this basis that the Court distinguished prior decisions, explaining:

Unlike both [Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) ] and [Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989) ], the instant case involves conversations taking place in the sanctity of one's home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978) : “Upon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” (Citations omitted.)

Brion, 539 Pa. at 260, 652 A.2d at 289 (footnote omitted).

The opinion supporting reversal distinguishes the present dispute from Brion on the basis that, here, the confidential informant was not sent by the police into the home, but instead was unexpectedly invited into the home. It concludes that Appellee therefore “did not close the door to the outside world,” because “the [confidential informant] and the hidden camera made their way ... into the home only as a result of appellee's invitation.” Opinion in Support of Reversal, at 50. The opinion supporting reversal indicates that this “makes all the constitutional difference.” Id. at 49.

We would note, however, that, in Brion, there is no suggestion that the informant entered the residence against the will of its occupant. Thus, in that matter it may equally be said that the defendant did not close the door to the outside world, and that the informant and the recording device made their way into the residence as a result of the occupant's wish to sell drugs to the informant. Hence, a present holding that suppression is not required, when read in conjunction with Brion, would signify that the determining factor of constitutional significance is, in effect, whether the officers involved in setting up a controlled drug purchase subjectively intend that the transaction should occur inside or outside the suspect's home.

In our view, such subjective intentions on the part of the authorities are of little relevance to the constitutional analysis. Of more relevance is the occupant's expectation of privacy in his home (along with society's recognition of the reasonableness of that expectation), and the fact that the confidential informant physically entered the home to secretly videotape the transaction. See Brion, 539 Pa. at 262, 652 A.2d at 289 ; Commonwealth v. Rekasie, 566 Pa. 85, 101, 778 A.2d 624, 634 (2001) (Castille, J., concurring, joined by Saylor, J.) (agreeing that a police wiretap did not violate Article I, Section 8, because “unlike Brion, the recording/seizure of the oral statements did not result from the physical entry of a government agent into the defendant's home”). In this regard, we believe that failure to require suppression in the present circumstances would establish what is tantamount to a good-faith exception to Brion's holding, whereas this Court has generally found that, due to the primacy of the privacy interests it protects, Article I, Section 8 does not encompass exceptions based on the good faith of the police. See, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).

Accordingly, we would conclude that, unless and until Brion is overruled, individuals in Appellee's position are entitled to suppression of secretly-made video recordings capturing events transpiring within the confines of their home, regardless of whether the police originally expected and/or intended that those events would occur outside the residence.

Justices BAER and TODD join this opinion in support of affirmance.

Justice TODD, in support of affirmance.

I join the Opinion in Support of Affirmance (“OISA”) which underscores that the place in which this warrantless intrusion and secret video recordation by the confidential informant occurred—the interior of Appellee's home—was the critical factor in rendering this conduct a constitutional violation.¹ The inside of one's home is the area in which every person has the greatest expectation of privacy and, thus, it is an area entitled to the maximum constitutional protection. See Commonwealth v. Bricker, 542 Pa. 234, 666 A.2d 257, 261 (1995) (“We have long recognized the sanctity of the home in this Commonwealth as we have repeatedly stated that ‘[u]pon closing the door to one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.’ ” (quoting Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287, 289 (1994), in turn quoting Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496, 499 (1978) )); Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (1994) (“In a private home, ‘searches and seizures without a warrant are presumptively unreasonable.’ ” (quoting Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) )). I also am in accord with the OISA's view that the subjective motivations of the police regarding their direction of the actions of the confidential informant were irrelevant to the determination of whether the informant—while acting as an agent of the state—violated the constitution.

Consequently, I agree with the OISA's ultimate conclusion that the warrantless video recording made inside of Appellee's home must be suppressed in accordance with our decision in Brion, which established that a person does not forfeit the strong privacy interest he or she has in their home or residence just by allowing an individual to come inside. Indeed, I find the nature of the government sanctioned activity at issue here—videotaping—to pose an even greater risk of unjustified invasion of the right of privacy than the audiotaping at issue in Brion. A hidden video camera records, in minute detail, all visible aspects of the interior of the home, its contents, and the activities of any of its occupants which happen to fall within the camera's field of view. Thus, affixed to the body of an undercover informant who enters a home, such a device will indiscriminately capture all that it sees, which includes the legitimate and constitutionally protected activities of every individual who happens to be present therein, as well as a host of intimate details about the lives of those who reside there, regardless of whether they have any relevance to a legitimate investigative purpose.

Because this type of surreptitious videotaping constitutes a greater risk of invasion of the strong privacy interest every individual possesses in his or her home, the question of when such videotaping is constitutionally permissible, and, also, what legal limits to such videotaping are appropriate to ensure that it does not encompass personal subjects and areas which are irrelevant to legitimate investigative purposes, is a matter to be considered by a neutral magistrate upon application for a warrant before the videotaping occurs. See Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“Where ... the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”).

Accordingly, I would affirm.

Justice BAER joins this opinion.

Chief Justice CASTILLE, in support of reversal.

The Court granted this discretionary appeal to consider the admissibility at a criminal trial of evidence consisting of a soundless videotape of a drug deal, captured by a hidden camera police placed in the clothing of a confidential informant (“CI”), who met appellee on a pre-arranged street corner for a drug “buy,” but was then transported by appellee to appellee's residence, where the CI was invited inside and the drug buy transpired. The trial court and the Superior Court both held that the videotape was the...