J-A14033-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEWART ENOS,

Appellee No. 1131 EDA 2016

Appeal from the Judgment of Sentence March 22, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0008798-2014

BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

CONCURRING MEMORANDUM BY BENDER, P.J.E.:FILED DECEMBER 08, 2017

I agree with the Majority that the trial court abused its discretion by 

entertaining Appellee’s untimely suppression motion based solely on the 

court’s desire to avoid a collateral ineffectiveness claim. I recognize that 

decision as the holding in this case and, consequently, I view the Majority’s 

analysis of the underlying constitutional claim as dicta, regardless of its 

merit. Nevertheless, I write to express my concerns with that analysis. 

Here, without a warrant, and lacking any exigency justification, the 

police enlisted a private citizen, the confidential informant (“CI”), to conduct 

a surreptitious search within Appellee’s vehicle with a video camera. The 

Majority tacitly approves of this warrantless search by concluding that 

Appellant “voluntarily invited” the CI into his car, thereby “relinquishing his 

reasonable expectation of privacy” and with it, “the protections of the Fourth 
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Amendment [of the United States Constitution] and Article I, Section 8” of 

the Pennsylvania Constitution. Majority Opinion at 14. 

If the CI had come to the police, unsolicited, with the very same video 

recording of Appellee, I would have no complaint with the Majority’s 

analysis. The Fourth Amendment and Article I, Section 8 are restraints on 

state action, not the behavior of individual citizens. Here, however, the CI 

acted as no more than an extended organ of the state. The police provided 

the CI with both the camera to record the illicit transaction and the currency 

to effectuate it. It is plainly disingenuous to construe this matter as an 

interaction between two private parties. 

If ‘privacy’ is to mean anything to us as a society, it must mean that 

our right to selectively include individuals in our private affairs is not so 

easily breached by surreptitious ploys. If we recoil at the notion that a 

private response to an email purporting to be from our bank vitiates our 

privacy right to the information in that response, even when that email was 

sent by an internet scammer, we should also recoil at the notion that the 

Commonwealth can enter our cars to record our behavior, without a 

warrant, under the false pretense of doing so under the guise of just another 

private citizen.

What terrible burden would confront the authorities if they had to seek 

a warrant to conduct such a search? What overwhelming hurdle would the 

courts impose on police if these actions were not condoned? The answer is 

so underwhelming. The police would merely have to obtain a warrant from a 
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magistrate based on probable cause to conduct this search, as required by 

our state and federal constitutions – a standard which most likely could have 

easily been met by means of an affidavit provided by the CI regarding his 

prior knowledge of Appellee’s drug dealing. 

 The Majority’s analysis reflects no such balancing of interests between 

the legitimate police power and an individual’s right to privacy. The Majority 

does rightfully recognize the sanctity of the privacy one reasonably expects 

in one’s own home, as well as the relatively diminished expectation of 

privacy one can expect in their own vehicle. However, from that point on, I 

find the Majority’s analysis unconvincing that a diminished expectation of 

privacy in a vehicle effectively constitutes no expectation of privacy under 

the facts of this case. 

However, the Majority’s analysis, I concede, is not without precedent. 

The Majority relies, understandably, on Commonwealth v. Blystone, 549 

A.2d 81 (Pa. 1988) (holding no constitutional violation when a suspect's 

conversations with an informant were intercepted with the consent of the 

informant and without a warrant), and Blystone itself was firmly grounded 

on decisions by the United States Supreme Court, including, among other 

cases, Lopez v. U.S., 373 U.S. 427 (1963) (holding a government agent’s 

secretive recording of a conversation with defendant in his office was not 

violative of the Fourth Amendment, because the agent was voluntarily 

permitted into the office with the defendant’s consent). 
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Nevertheless, I stand with the late Justice Brennan who, confronted 

with the Lopez Majority’s reasoning, dissented, in pertinent part, as follows:

The other half of the Government's argument is that Lopez 

surrendered his right of privacy when he communicated his 

‘secret thoughts’ to Agent Davis. The assumption, manifestly 

untenable, is that the Fourth Amendment is only designed to 

protect secrecy. If a person commits his secret thoughts to 

paper, that is no license for the police to seize the paper; if a 

person communicates his secret thoughts verbally to another, 

that is no license for the police to record the words. The right of 

privacy would mean little if it were limited to a person's solitary 

thoughts, and so fostered secretiveness. It must embrace a 

concept of the liberty of one's communications, and historically it 

has. ‘The common law secures to each individual the right of 

determining, ordinarily, to what extent his thoughts, 

sentiments, and emotions shall be communicated to others ... 

and even if he has chosen to give them expression, he generally 

retains the power to fix the limits of the publicity which shall be 

given them.’ Warren and Brandeis, The Right to Privacy, 4 

Harv.L.Rev. 193, 198 (1890). (Emphasis supplied.)

...

It is no answer to say that there is no social interest in 

encouraging Lopez to offer bribes to federal agents. Neither is 

there a social interest in allowing a murderer to conceal the 

murder weapon in his home. But there is a right of liberty of 

communications as of possessions, and the right can only be 

secure if its limitations are defined within a framework of 

principle. The Fourth Amendment does not forbid all searches, 

but it defines the limits and conditions of permissible searches; 

the compelled disclosure of private communications by electronic 

means ought equally to be subject to legal regulation. And if 

this principle is granted, I see no reasoned basis for reaching 

different results depending upon whether the conversation is 

with a private person, with a federal undercover agent ..., or with 

an avowed federal agent, as here.

Lopez, 373 U.S. at 449–51 (J. Brennan, Dissenting) (citation omitted). 

Extrapolating from Justice Brennan’s dissenting thoughts in Lopez, I 

fear we have now reached the point, as Justice Brennan warned, where our 
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right to ‘privacy,’ arising from the Fourth Amendment and its analogue in 

Article I, Section 8, means no more than mere ‘secrecy.’ As we enter a 

world of exponentially proliferating technology, which further degrades any 

practical right to privacy, I believe it is time to reconsider the limited view of 

the privacy right that we have inherited from narrow majority of jurists living 

in the mid-20th century. Moreover, I believe the burden on the state to 

obtain a warrant in order to secure such evidence for use in court is a trivial 

price to pay to secure a more robust right to privacy.